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December, 1962

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One of the most important decisions of the courts on the nature and scope of a colliery manager’s liability for breach of duty is Brown v. National Coal Board decided by the House of Lords this year. The litigation started at Newcastle upon Tyne assizes and arose out of an accident which occurred in the Crofton Mill Colliery, Northumberland. The trial judge, the Court of Appeal and the House of Lords agreed that in the circumstances of the case the Board were not liable to pay damages for an injury unfortunately incurred by an electrician working in the colliery. The principle now firmly established by this decision is that a manager is not, by virtue of section 48 of the Mines and Quarries Act 1954, under an absolute duty; he is under a duty to obtain information and act in the light of that information with all the care and skill which a manager ought to bring to bear. There was no shortcoming in these latter respects.

Undoubtedly, if a manager fails to do anything which a careful and skilled manager in his shoes would have done, he will be in breach of his duty and his employers will be liable for any damage caused thereby. But the question in this case was whether the Act went further and imposed on him a duty to do things which later investigation may show were necessary but which neither he nor anyone else could know at the time were necessary. Did the Act require him to do the impossible?

Although the answer was, No, there were arguments for its being, Yes. Some Acts of Parliament do require the impossible in the sense that someone in charge is put under a duty to prevent harm occurring and is liable simply because harm does occur, even though he could not possibly have prevented it. The duty is then said to be absolute. The working of section 48 of the Mines and Quarries Act is certainly stringent in defining the manager’s duty. The first sub-section says that "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. Subsection (2) goes on to say that " It shall be the duty of the manager of every mine to take such steps as may be necessary for securing that he is at all material times in possession of all information relevant for determining the nature and extent of any steps which it is requisite for him to take in order to discharge efficiently the duty imposed on him by the foregoing subsection."

Working place not "Secure"

The facts of the accident to which these statutory rules had to be applied were as follows. The appellant’s accident occurred in a drift connecting a main travelling road with a working seam at a lower level. There was an endless haulage in the drift and on the day in question a tub which had been damaged by derailment was sent up the haulage in order to get it to the pit-bottom. On the way up the drift it was derailed again and collided and displaced a prop which formed one of the two supports of a roof girder. The girder came down and there was then a fall of stone from the roof. The appellant was called to the spot on the instructions of the overman for the purpose of removing an electric lamp from the fallen girder, to enable it to be restored to position. The appellant, realising what was wanted, started work on the light fitting unknown to the overman, when another stone fell from the same part of the roof, injuring him.

There was nothing to suggest that the manager neglected to take any step required to make the roof of the drift secure. The girder was dislodged by an accident and no complaint was made by the appellant either of the support system or of the proximity of the haulage line to the sides of the drift. It was conceded that prior to the moment when the derailed truck collided with the prop and brought down the girder the roof of the drift was secure.

The appellant’s argument was that the next moment the roof became insecure and so remained until again properly supported, and that this state of affairs in itself constituted a breach of the manager’s duty to take whatever steps might be necessary to keep the road secure. In other words, the fall of the stone that followed demonstrates that the roof was not then secure, and if it was not, that fact in itself proves, even though retrospectively, that the steps necessary for keeping the road secure had not been taken. This line of reasoning was too simple for the wording of the Act, said Lord Radcliffe in his judgment. The House of Lords rejected the reasoning.

Manager not "a blind guarantor"

A fall does not necessarily show that a roof was not then "secure," for there may be certain very special causes of collapse which are not inconsistent with the roof having been secure the moment before. Such causes might be an earthquake, an explosion, or deliberate operations designed to bring the roof down. But it is true that in ordinary cases a fall speaks for itself on the issue as to the state of security. Nonetheless, Lord Radcliffe did "not think that under this Act a manager is made automatically guilty of having failed to take the necessary steps by the bare circumstances of insecurity coming about or a fall taking place." "So to hold," he continued, in the face of the wording of the two subsections of section 48 would be to ignore altogether the fact that the emphasis of the section is entirely on things to be done by the manager, the obtaining of information for the efficient performance of his duty and the taking of steps by way of control of strata and support of roof and sides in order to keep roadway and working place secure.

"The manager would be converted into a blind guarantor of the desired consequences, however casual or unforeseeable the cause of the accident." It seemed to Lord Radcliffe plain" that if a manager’s duty is to ask himself from time to time ‘ What steps are required now to keep the roadway secure?’ he can only pose or answer that question in the light of the best obtainable information as to the circumstances, geophysical or otherwise, that he is to deal with, and knowledge of skilled and up-to-date engineering science and practice. If he answers the question in those terms and acts accordingly he cannot in my view, be said to be in breach of his duty, even though there is a state of insecurity or a roof fall." The other judges of the House of Lords agreed with this view.

It is now the authoritative legal principle to apply to the interpretation of the statutory duty. Under section 48 (2) the manager is to take "such steps as may be necessary" for securing that he has all relevant information. Investigation after an accident may disclose information which it was physically possible for him to obtain earlier, but which, if it could have been known earlier, would have enabled him to prevent the accident. The subsection must not be read as laying on him the impossible duty of obtaining that information before the accident.