Tomlinson v Beckermet Mining Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE RUSSELL |
| Judgment Date | 02 June 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0602-2 |
| Court | Court of Appeal |
| Docket Number | 1963. T. No. 91 |
| Date | 02 June 1964 |
[1964] EWCA Civ J0602-2
In The Supreme Court of Judicature
Court of Appeal
Appeal from Order of Mr Justice
Nield dated 20th January, 1964
Carlisle Assize
Revised
Lord Justice Willmer,
Lord Justice Davies and
Lord Justice Russell.
Mr GEORGE S. WALLER, Q. C., and Mr R. RADCLIFF LEECH (instructed by Messrs Isadore Goldman & Son, Agents for Messrs Crute & Sons, Newcastle-on-Tyne) appeared on behalf of the Appellants (Defendants).
Mr GODFREY HBILPERN, Q. C., and Mr F. P. RIDEAL HINCHCLIFFE (instructed by Messrs Sherwood & Co., Agents for Mr Noel J. Noble, Barrow-in-Furness) appeared on behalf of the Respondent (Plaintiff).
This appeal arises out of a claim brought by the widow of a deceased workman against his employers under the Fatal Accidents Act and the Law Reform ( Miscellaneous Provisions) Act. The defendants are the owners of a heamatite are mine in Cumberland, and the deceased man bad been employed by them for many years as a miner. He unhappily met his death as the result of an accident in one of the roadways of the mine which took placeon the 12th April 1962 when a large piece of rock fell from the roof an killed him. The plaintiff by her statement of claim alleged that the accident was due both to negligence on the part of the defendants at common law and also to breach of their statutory duty under section 48 of the Mines and Quarries Act, 1954. The action was tried by Mr Justice Nield at Carlisle Assizes in January of this year, when the learned judge came to the conclusion that the defendants had not been proved to be guilty either of negligence or of breach of statutory duty, and he accordingly dismissed the claim. The plaintiff now appeals to this court, and a respondent's notice has been filed on the other Side whereby reliance is placed on section 157 of the Act.
The accident took place in a roadway some 12 ft. wide and 8 ft. high which had been cut through what is described as food strong limestone; but it is to be observed (and a good deal of reliance is placed on this fact) that the place of the accident was in the immediate vicinity of a junction where another roadway joined. The particular roadway had been in existence for upwards of thirty years. It had never been considered necessary to support the roof owing to the excellent quality of the rock, and no fall of roof of this kind had ever occurred before.
The deceased man was a member of a gang of three men who at the material time were engaged in cutting an additional apace of some 2 ft. at the side of the roadway in order to accommodate a ventilation pipe which it was proposed to instal. The gang had been engaged on this task for something like five weeks, and had completed about 250 ft. of widening; of the roadway. Their procedure was to work on about 5 ft. at a time. The method adopted was to drill three holes longitudinally 5 ft. long into the rock which was to be cut away. These holes would be filled with charges, and the charges fired. When the charges had been fired, the first task would be to dress down the surface of the rock which remained, and then to test the roof in the area by tapping it with a steel bar to make sure that no loose rock remained which was likely to fall and cause injury. After that the debris would have to becleared away by means of a mechanical loader, taken away in a bogy and the whole operation would then be repeated. The holes for the charges were drilled In such a way that the width of the cut was designed to be, and was in fact, something like 3 ft. at ground level, bat tapering away to nothing about 4 ft. 6 above ground level. Above that height the original perpendicular wall at the side of the roadway remained.
On the day of the accident work started about half-past 6 in the morning, and after clearing up debris from the work of the previous day the gang proceeded to drill fresh holes In the way that I have described. That was completed, and the charges were fired about half-past 6. Evidence was given by Mr Rotherly, who was in charge of the gang, that after the charges were fired the men went away to have something to eat, and when they returned the usual procedure was followed and the remaining surface of the rock was duly dressed down. The roof was then tested in the usual way by tapping, and that tapping revealed that there was nothing to indicate any hidden fault in or above the roof. Accordingly, work proceeded in clearing up the debris: but in the course of that work a minor accident occurred because the loader caught on a water tap and appears to have caused some damage thereto. Mr Rotherly and the third member of the gang, Mr Carter, both went away, the latter to make a report on what had happened, and the former to turn off the water at a valve which was some four or five hundred yards away from the spot where the men were working. Consequently the deceased man was left at the site alone. But while the others were away, he was visited by Mr Adair, the over man. Mr Adair himself carried out his own test of the roof in the vicinity of where the work was taking place by tapping it with a steel bar, although the deceased man told him that it was all right and that they had bean all over it. Mr Adair also was satisfied that the roof was In a safe condition, and after some minutes of conversation with the deceased man he too went away, mid the deceased man was again left alone. By this time it was about half-past 12, and within a few minutes Mr Rotherly and Mr Carter returned to find that alarge piece of rock had fallen from the roof and had struck the deceased man, who was lyf. ng partially underneath it. The dimensions of the piece of rock which fell have been variously described, but I doubt whether Its precise size matters very much; one witness said that it was something like 10 ft. long and 6 ft. across, and there was evidence to show that it was in the region of 2 to 5 ft. thick at its thickest, but that it tapered away to practically nothing at the end.
No one has ever been able to say for certain what caused this fall of rock. As the case proceeded it was suggested on behalf of the plaintiff that the fall was due to what has been called "bad ground" in the roof immediately over that part which fell. As I understand it, "bad ground" is a phrase which means that there is a sort of space above the rock which falls filled only by loose stone in the nature of shale, so that the rock which falls is not properly bonded to the roof above it. If that theory were correct, it would undoubtedly mean that the fault in the roof ought to have been disclosed by the tapping test carried out by the gang and by Mr Adair, if that test was properly carried out. I understand that where "bad ground" exists, the tapping test results in a different kind of sound as compared with that which results from good solid rock. Clearly, if there were such "bad around", then (subject possibly to some contributory negligence on the part of the deceased man himself) the defendants would have to be held liable for the negligence of their servants in falling to carry out the test properly.
The alternative theory which was put forward by the defendants' expert, Dr Schnellmann, was that the fall was due to what he called an "incipient bedding plane". "Bedding plane", as I understand it, means that, although there is no actual hollow to break the continuity of the rock, there is a change in the structure of the strata, so that the lower section ceases to adhere to the section lying immediately above it. That, as I understand it is a known geological phenomenon; but the evidence in the case is to the effect that such a phenomenon is notdetectable by the tapping teat, for the sound made by tapping is exactly the same as in the case of normal solid rock. Nor is it detectable in any other known way.
The learned judge had to decide between those two alternative theories as to the cause of the fall of rock. He rejected the theory that the fall was due to bad ground and accepted the theory put forward by Dr Schnellmann. Although on the opening of this appeal we were pressed to say that the judge came to a wrong conclusion In rejecting the theory of bad ground, Mr Waller, who has appeared for the plaintiff, ultimately abandoned that point and accepted that in this court it was not open to him to challenge the learned judge's finding in that regard. He further conceded that that meant there was no remaining ground on which he could invite us to review the judge's conclusion that no negligence at common law had been proved. The main argument on the appeal, accordingly, turned upon the statutory provisions to which I have already referred.
Section 48 of the Mines and Quarries act 1954 provides by subsection (1): "It shall be the duty of the manager of every mine to take, with respect to every road and working place in the mine, such steps by way of controlling movement of the strata In the mine and supporting the roof and sides of the road or working place as may be necessary for keeping the road or working place secure". I do not think I need read any further in that section: but whilst the Act is before me, it will be convenient to read the material part of section 157. That provides: "It shall be a defence in any legal proceedings to recover damages and In any prosecution, in so far as the proceedings or prosecution are or is based on an allegation of a contravention, in relation to a mine or quarry, of (a) a provision of this Act", then missing out (b) and (c), "to prove that it was impracticable to avoid or prevent the contravention".
Having rejected the theory that the accident here was caused by bad ground, the learned judge went on to express...
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