Stapley v Gypsum Mines Ltd

JurisdictionUK Non-devolved
JudgeLord Porter,Lord Oaksey,Lord Reid,Lord Tucker,Lord Asquith of Bishopstone
Judgment Date25 June 1953
Judgment citation (vLex)[1953] UKHL J0625-3
Date25 June 1953
CourtHouse of Lords
Stapley
and
Gypsum Mines Limited.

[1953] UKHL J0625-3

Lord Porter

Lord Oaksey

Lord Reid

Lord Tucker

Lord Asquith of Bishopstone

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause Stapley against Gypsum Mines Limited, that the Committee had heard Counsel, as well on Thursday the 16th, as on Tuesday the 21st, Wednesday the 22d and Thursday the 23d, days of April last, upon the Petition and Appeal of Seagull Gladys Stapley (Widow), of Stevens Crouch, Catsfield, Battle, in the County of Sussex, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 7th of April 1952, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of Gypsum Mines Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 7th day of April 1952, in part complained of in the said Appeal, be, and the same is hereby, Reversed: And it is further Ordered, That the Judgment of the Honourable Mr. Justice Sellers, thereby set aside, of the 20th day of December 1951, be Varied by reducing the amount to be recovered by the Plaintiff from the Defendants to Six hundred and five pounds (£605), and by reducing the amounts awarded to Brian Lewis Stapley, Roy Terrence Stapley and the Plaintiff to Ten pounds (£10), Forty pounds (£40) and Five hundred and fifty-five pounds (£555) respectively; and That, subject to such variation, the said Judgment be, and the same is hereby Affirmed: And it is further Ordered, That the Defendants do pay, or cause to be paid, to the Plaintiff the Costs incurred by her in the Court of Appeal in respect of the Defendants' appeal to the said Court: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by her in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.

Lord Porter

My Lords,

1

This Appeal is brought by Mrs. Seagull Gladys Stapley, the widow of Mr. John Sydney Stapley, against a decision of the Court of Appeal which held that her action failed. Before Sellers, J. she had succeeded in recovering £1,512 10s., being half the damages of £3,025 which that learned Judge found she had sustained from the death of her husband.

2

Mr. Stapley was employed by the Respondents as a breaker in their gypsum mine, and part of his duty was to break up gypsum rock, which had been blasted by a previous shift of workers, in order that it might be removed by scraper haulage from the spot where it lay. The circumstances giving rise to her claim are not in dispute and can be shortly stated.

3

At about 4.15 p.m. on the 21st day of August, 1950, John Sydney Stapley and one Dale, in the course of their employment by the Respondents, were underground in No. 9 Stope at the Respondents' Gypsum Mine in the County of Sussex. John Sydney Stapley was a breaker and Dale a borer, which was a slightly more skilled task than that of breaker, but the two men were of equal status. Neither was in control of or entitled to give orders to the other. The task of John Sydney Stapley was to break up gypsum with a pick or a drill to a size convenient for removal, and Dale's task was to prepare the stope in order that a scraper hauler could be installed in it to facilitate the removal of the gypsum. When they were about to commence work in the stope they both observed that the roof was unsafe and likely to fall, a condition which is of frequent occurrence in this class of mine, and particularly so in the stope in question because a fault in the rock formation ran diagonally across its entrance. While the two men were in the stope and before they had commenced work the Respondents' foreman, Church, in the course of his regulation routine round of the mine, came to the entrance of the stope, saw Stapley and Dale and was informed by them of the condition of the roof. He there and then instructed them both to bring it down so as to render the position safe for work.

4

The task of bringing down the roof was one which was understood by both men and was one within their capacity to perform without supervision. Moreover, they were both well aware that such an order meant that they were not to work in the stope until they had got the roof down.

5

There were three methods by which that task could have been accomplished, all of which were well known to both, namely, with picks, with pinch bars or by boring holes in the roof and then summoning the shot firer to blast it down.

6

Church left Stapley and Dale after he had instructed them to bring down the roof, it being unnecessary either for him or anyone else to be present to supervise them whilst they performed this duty. For a period of approximately half an hour they attempted to perform their task, restricting themselves to the use of picks. They might possibly have used pinch bars and certainly might have resorted to boring and shot-firing, but, having failed to bring down the roof with picks, they decided to disregard the instructions of their foreman and to return to their respective duties of breaker and borer. Having made this decision, Dale went to perform his duties in the twitten near No. 9 Stope, leaving Stapley to work in the stope itself under the roof which they had been ordered to bring down and which they both knew had shown signs of danger but believed to be safe enough. A short time after they had abandoned their attempts to bring down the roof and had commenced their respective work, Dale returned to No. 9 Stope, and found Stapley buried beneath a quantity of gypsum which had fallen from the roof and killed him.

7

The liability sought to be placed upon the Respondents was based on Common Law and upon a breach of the provisions of Regulations 7 (3) and 14 (5) of the Metalliferous Mines Regulations 1938 (S.R. & O. 1938 No. 630 as amended by S.R. & O. 1945 No. 1351) made under section 86 of the Coal Mines Act and applied to Metalliferous Mines by the Mining Industry Act, 1920.

8

Certain others of the Regulations were relied upon as having some bearing on the point at issue and are accordingly inserted here:—

"Regulation 7 (3). The roof and sides of every travelling road, outlet and working place shall be made secure, and no person, unless engaged in repairing or in investigating the safety of the workings shall travel on or work in any travelling road or working place which is not so made secure.

Regulation 14 (1). The owner or agent shall carry out the provisions of the Acts, the Regulations, and the special rules and to the best of his power enforce the observance thereof, and he shall give such directions as may be necessary to ensure compliance with those provisions and to secure the safety of the mine, and the safety, health and proper discipline of the persons employed.

Regulation 14 (5). The owner or agent or an official appointed in writing by him for the purpose shall—

( a) During every ordinary mineral-getting shift, inspect every working place and road in every part of the mine in which persons work or along which they have to pass …; every dangerous place shall be fenced off, or, if this is not practicable, adequate warning shall be given so that such place shall not be inadvertently entered by any person.

Regulation 14 (7). If any danger is revealed by the examination or inspection, steps shall be taken at once to remove it and except for that purpose any person exposed to the danger shall be withdrawn.

Regulation 15 (1). Every person employed at the mine shall comply with the provisions of the Acts, the Regulations and the special rules and any regulation made by the owner or agent in pursuance thereof and with such directions concerning safety and discipline as may be given to him by those in authority over him.

(2) Every workman employed in the mine shall, before commencing work and during the course of it, especially after blasting, make a careful examination of his working place, and as far as practicable remove any or secure any loose rock, stones or ground which might be a danger.

Regulation 15 (3). Every person employed at the mine who notices anything that appears unsafe or likely to cause danger shall remedy the matter if it is within the scope of his duty, and if not shall withdraw forthwith from the place of danger and report the matter to the owner, agent or other responsible official.

Regulation 15 (10). No person shall negligently or wilfully do anything likely to endanger life or limb in the mine or negligently or wilfully omit to do anything necessary for the safety of the mine or of the persons employed therein."

9

Both grounds of claim were forcibly argued before your Lordships' House based in each case substantially upon the same facts and reasoning. So far as the statute was concerned it was submitted that the duty under Regulation 7 (3) to make the roof and sides of the working place secure was an absolute one, that the Respondents had failed to do so, albeit through no personal fault of their own, but they had not fulfilled the requirements of the regulation though...

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