Soar v National Coal Board
| Jurisdiction | England & Wales |
| Judgment Date | 11 March 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J0311-6 |
| Court | Court of Appeal |
| Date | 11 March 1965 |
[1965] EWCA Civ J0311-6
In The Supreme Court of Judicature
Court of Appeal
From Mr. Justice Lloyd-Jones
The Master of the Rolls
(Lord Denning)
Lord Justice Danckwerts and
Lord Justice Winn
MR. MARVEN EVERETT, Q. C. and D. M. SAVILL (instructed by MR. Donald H. Haslam, Agent for Mr. C. M. H. Glover, Don caster) appeared as Counsel for the Appellants.
MR. P. STANLEY PRICE, Q. C. and MR. H. BENNETT (instructed by Messrs Corbin, Greener & Cook, Agents for Messrs Riley & Pratt, Bindley) appeared as Counsel for the Respondent.
In this case Soar sues the National Coal Board for injuries which he sustained as long ago as the 19th July, 1960. He was a maintenance man at their Bentley Colliery. He was walking, as his pleading says, "in bye in main gate in the colliery and was about to go under the ripping lip when a stone fell from the roof between the last arch girder in the said gate and the said ripping lip and struck the plaintiff". That fact was proved. A stone did fall from the roof and bit the plaintiff without any fault on his part. He claims now against the National Coal Board that they were in breach of their statutory duty.
It is important to notice that in his claim he said the breach of duty was that, under Section 48 of the Mines and Quarries Act 1954, they "failed to take such steps as were necessary for keeping the road secure" and then it goes on to give the particulars, "in that an arch girder? boarded over from shoulder to shoulder, had not been set between the last arch girder set 4 ft. 6 ins. from the ripping lip and the ripping lip itself". His case, put in ordinary language, was that the practice in this mine was for arch girders or rings, as they are sometimes called, to be placed at 3 ft. 6 in. intervals along the roadway as it went forward. He says they were not set as they should have been, in accordance with the practice, at 3 ft. 6 in. intervals. Indeed, it had got to 4 ft. 6 ins. at this time without an arch being set. In those circumstances it was not boarded over as it ought to have been and therefore the defendants were liable.
That case was fought out at the trial and it failed. The plaintiff called two of his colleagues, Mr. Doug all and Mr. Blount, who said that they took out a tape measure and measured it and saw it was 4 ft. 6 ins. The Judge did not accept their evidence. He accepted the evidence of the deputy and the face shot firer who said it was 3 ft. 6 ins. and not 4 ft. 6 ins. and the arch girders had been set 3 ft. 6 ins. all the way to the facein the ordinary way. Therefore the case as pleaded on statutory duty failed entirely.
But the Judge went on to decide in favor of the plaintiff on this point, He said: accepting that the last girder was only 2 ft. 6 ins. from the ripping lip, as was said, nevertheless this last ft. 6 ins. was not supported wholly right round the tunnel. It was only supported at the top over a width of 4 ft. 6 ins. in the middle of the arch. For this 4 ft.6 ins., the roof was supported by timber on rails which are slung in horse heads. I need not go further into the technical description, but the effect of it was that at the top of the arch the 4 ft. 6 ins. was protected by boarding from any falls of stone from the top, but, on the other hand, the rest of the archway, and in particular the walkway down which the plaintiff went, was not supported by anything. The Judge held that that was a breach of the section. It was the duty of the National Coal Board to make it "secure", and that they had not done.
It was proved by the National Coal Board that the practice always was only to protect the width of 4 ft.6 ins. The other parts of the proof were tested for safety. The deputy said how he tested it: "I gave it plenty of knocking with a stick, tried it and tested it, and if it gave any indication at all of wanting supporting, it would have been set". it was accepted by the Judge that this testing had been carried out properly on this occasion and nothing dangerous was found, nothing to need support. Mr. Clarke, a very senior man, said that although of course it was not a good test — in fact he said he must accept that it was a poor test — nevertheless when it had been done, you could not reasonably expect a fall of stone in this colliery. He said in one part of his evidence that the chances were "infinitesimally small". In his very last sentence he said "the chances were a million to one". Nevertheless the Judge held, applying some words of my own in Brown v. National Coal Board, 1962 Appeal Cases at pp. 595-6, that this roof was not"secure" and the manager had not taken the steps necessary to make it secure within Section 48.
I need not go through the different tests which have been laid down as to the meaning of the word "secure". I am still inclined to think that the test laid down by Mr. Justice dupers in Walker v. Bletchley Flattens Ltd., 1937, 1 All England Reports. pp. 170, 175, is as good as any. Even so, you have to consider whether the circumstances are such that injury "may be reasonably expected to occur". For readability, since Brown's case, is certainly one of the factors which must be present before liability is found under Section 48.
Having regard to that evidence of Mr. Clarke, and indeed all the evidence, it seems to me that in all the circumstances of this case this roof was secure. There was not any danger such as to be a possible cause of injury in circumstances which might reasonably be expected to occur. Accordingly, the section does not come into operation so as to make the defendants liable.
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