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The Evidence.

In accordance with the instructions conveyed in your letter dated 5th December 1910, I now have the honour to report on the legal aspect of the case as presented at the inquest.

The investigation at the inquest was complete and thorough.

Forty-four witnesses in all were examined, including the Inspectors on Mines, Professors Galloway and Louis, and Mr. W. C. Blackett.

I am satisfied that all the evidence available and relevant in connections with questions of fact was tendered and heard.

Some ten of the above witnesses were tendered by the Miners' Federation.

This extension of opportunity to any one who had any material evidence to give was referred to by Mr. T. Richards, M.P., at the close of the inquest in the following terms :—

"When I say that on no occasion have we ever met with a coroner who has given us, not only greater fair play, but greater latitude to bring out everything and anything that we desired to bring to the jury, I think that will be giving you a commendation, the very highest it is possible for me to give.

The following matters having reference to the ordinary working of the colliery must be taken to have been established by the evidence —

(1) The entries in the Daily Report Book referring to gas had reference only to such accumulations of gas as had necessitated some working place being stopped or men withdrawn.

(2) The overmen and deputies did not as a general practice report gas which they were able to clear before the workmen entered the place or which could be cleared in a few minutes, whilst the men stood down from their working places.

(3) The Daily Report Book kept in accordance with General Rule 4 did service for all entries required, both under General Rule 4 and General Rule 7 of the Coal Mines Regulation Act, 1887, and their own Special Rules 42, 56, and 62.

(4) No separate Withdrawal Book for recording the conditions which had necessitated the withdrawal of workmen was in use.

(5) There was a difference in the practice of certain of the overmen and deputies in connection with their examination of the working places before the commencement of a shift and finding gas, and the sending of the men forward to those working places.

(6) Men would knowingly enter places and commence work when the presence of gas was indicated by the fireman's mark ; also men would continue working ("endeavour to finish the shift out") notwithstanding the prevalence of gas and did not, on their own initiative, obey the instructions of Special Rules 112, 113, 148, 151, 168.

A few quotations from the evidence will illustrate the practice in these particulars.

As to (1) and (2) :— Fireman's Reports.-Overman Graham who had the honourable record of 44 years service with this colliery, of which 30 years were at Wellington Pit, and 13 as Overman, gave the following account of his practice :—

(GRAHAM 6478-6484).-"What was the rule that you yourself worked to if you found gas in the working place ; what did you do? — If I found gas I would stop the men from working until I got a brattice cloth up in the working place."

"That would be in the course of your preliminary inspection? — Yes."

"Now as regards reporting the case, would you report that you had found a slight show and had cleared it, or would you not? — When it just shows a little I would stop the men until I got some brattice cloth, and I would send for the joiners and send them to put some ventilation into it."

"If it has caused anyone to be stopped out of his place for any length of time was the practice to report it? — If I was stopping that place I would report it."

"Supposing in the course of your round you found gas which was not a serious accumulation, but still ought to be attended to, that had to be removed, was easily removed and was removed, would you report it? — No, I would not report a simple case, it would be done in a quarter of an hour by putting in a prop or two and five or six yards of canvas, I would fetch the men out and let them stand two or three minutes while I got it done."

"If a place was full of gas and fenced off, would you report it? — Yes."

"But if there was a bit shewing which you could clear off by putting up a bit of brattice cloth you would not report it? — No."

General Rule 4 was then read to the witness and he was asked :—

"According to your reading of that rule, if you found gas which was cleared out with a bit of brattice you did not think it was necessary under that Rule to report it? — Well sir, no, because there was no danger in it, it would only show a quarter inch cap, you see."

Reference will be made to this interpretation of General Rule 4 later.

Mr. Blair the Assistant General Manager spoke of the practice as follows :—

(Mr. Blair 1870-1878). — "Now then the practice is that men are admitted to work although the atmosphere may show a cap in the face? — Yes, if you get into the return air you won't find a cap."

I quite appreciate that. Still, the fact that the ventilation does not keep the face clear and that the men are compelled to work there and have their lamps within useful distance of the face to work by, throws additional responsibility and burden on the various duties where that is done? — Yes."

"And therefore their inspection during the shift is often more important than if the rule of the pit was 'no work if any show of gas'? — Yes."

"Assuming a ½ inch cap of gas is found at the working place and men are admitted, I take it that that would not be a condition which you would expect to find reported in the Daily Report Book, because it would be the ordinary routine? — Yes" (meaning "that is so").

"Then what conditions are considered of sufficient moment for the deputy to incorporate in his Daily Report? — Supposing he finds gas four or five yards back from the face."

"That is to say, supposing the place was stopped and men not allowed to go in, that would be a condition that would call for mention in the Daily Report? — Yes."

"Now, once having been permitted to enter, if the face becomes badly fouled they might have to be withdrawn? — They would have to withdraw themselves if the deputy was not there."

"If he withdrew them would that be a condition which in your opinion would come under General Rule 7 for entering up? — Yes."

(BLAIR, 1923). — The presence of gas in the working place was later explained to mean, "only close up against the face and" added the witness, "the lamp should not be there," and had reference to the No. 6 N district workings in the solid.

(CAMPBELL, 9468-9471). — Another deputy, William Campbell, gave evidence to the same effect as Graham.

Mr. Swift, counsel for the owners, seemed from the questions he put to the deputy, Thomas Swinburne, to accept it as established practice.

(SWINBURNE, 9951-9956). — "If your could not remove the gas at once what would happen? — I should find them another place or they would have to go home."

"Now supposing you had to find a man another place or he had to go home, would you call that place stopped? — I would call that place stopped."

"If he was stopped would you report it? — Yes."

"But would you call it stopped if you were able to clear the gas away, and he went back at once? — If stopped slightly we never book it."

"Would you report that? — I never booked it."

"So that if it was a stoppage you could clear away at once you did not report it, but if you had to take a man away from the working you called it stopped and reported it? — Yes."

So also with reference to the finding of gas away from the actual working place.

An overman (Graham) and a deputy (Swinburne) volunteered the information that they had on occasion found a show of ¼-inch and ½-inch cap in the main airway leading from No. 6 to No. 5 District (technically the intake of No. 5 District) in the course of their round of inspection and had not reported it because it was "not dangerous."

General Rule 4. — As to the true intent and meaning of General Rule 4, so far as it relates to reporting gas, considerable difference of opinion was shown.

The material parts of General Rule 4 are as follows :—

(i.) As to inspection before commencing work :—

A competent person or competent persons appointed by the owner, agent or manager for the purpose, not being contractors for getting minerals in the mine, shall, within such time immediately before the commencement of each shift as shall be fixed by special rules made under this Act, inspect every part of the mine situate beyond the station or each of the stations, and in which workmen are to work or pass during that shift, and all working places in which work is temporarily stopped within any ventilating district in which the men have to work, and shall ascertain the condition thereof so far as the presence of gas, ventilation, roof and sides, and general safety are concerned.

The inspection shall be made with a locked safety lamp, except in the case of any mine in which inflammable gas has not been found within the preceding twelve months.

A report specifying where noxious or inflammable gas, if any, was found present, and what defects (if any) in roofs or sides, and what (if any) other source of danger were or was observed, shall be recorded without delay in a book kept at the mine for the purpose, and accessible to the workmen, and such report shall be signed by, and so far as the same does not consist of printed matter, shall be in the handwriting of the person who made the inspection.

The overman's view is given in the quotation above from Graham's evidence, which was to the effect that he did not report gas where there was no danger in it.

(Mr. BLAIR, 1926-1932). — Mr. Blair was questioned by Mr. Richards.

"Do You suggest that close up against the face the gas will show a ½ inch cap? — Yes, in rise working I suggest that."

"What percentage of gas do you say would be present when you have a ½ inch cap? — About 4½ per cent."

"What is the explosive mixture? — About 7 per cent., 6? if you want it exactly."

By Mr. REDMAYNE. — "It is a well-known fact that the ignitable point of firedamp is 6.1 per cent."

Mr. RICHARDS. — Is not 4½ per cent. rather dangerous? — Mr. Blair — 7 per cent. is explosive, I do not see where it comes in so long as we keep below that."

The question came up again in the course of my examination of Mr. Steel, the manager.

(Mr. STEEL, 12511).-"Now these reports are only cases of places which have been stopped on account of gas and the places fenced off? — Yes."

(12521-4).-"You see what it amounts to is this, that they (the overmen and deputies) have to exercise their judgment and discretion as to when they will report gas and when they will not? — Yes."

"And they have told us, in fact these reports show, that the occasions which they deemed important occasions for putting on the record and informing the management of, were only occasions when they had to stop men from their working places? — Yes."

"Or withdraw them? — Yes."

"Well, now surely it is an unwise proceeding, apart from any statute, to leave the overmen and deputies so large a measure of discretion and responsibility, is it not? — Oh, yes. I did not back them up in that. I maintain they should have reported no matter how slight the show was."

(12528).-"The reading of your Special Rule and of the General Rule 4, goes to show that the presence of any flammable gas found should be reported in the ordinary way? — Yes, it is so."

"And so far as they failed to do it they have not been carrying out Special Rule 56 or General Rule 4 of the Act of Parliament? — You see Rule 56 says the deputy ought to specify where noxious or inflammable gas, if any, was found present? — Yes, it is so."

"Even if he has found a slight show owing to some fall or some other local disturbance, and it has been cleared up, it is advisable from the point of view of discipline at any rate that the management should have an intimate knowledge of all those little matters? — Yes, I quite agree."

Mr. RIGBY SWIFT: Mr. Pope, as regards the obeying of the rule, the rule refers to inflammable gas which is a source of danger. The rule does not apply unless the gas is a source of danger. Mr. Steele says, "I will go further and say, I will have any gas reported, but the rule does not demand that. Surely it is common sense. I quite understand other people differing from me about that, I cannot understand my friend differing from me. I doubt whether any lawyer in the world could read that rule in that way. I read that the inflammable must be a source of danger before that rule applies."

I do not myself accept the above interpretation of the rule.

The effect of reading the rule as suggested by Mr. Swift would be that, as the ignitable point of firedamp is 6.1 per cent. and, according to Mr. Blair, a ½ inch cap indicates something like 4½ per cent of gas — it would be unnecessary to report gas except where something over ½ inch cap was shown or until the gas actually ignited (became "inflammable") in the lamp. Where then would be the margin of safety ?

The word "inflammable" must be taken to mean a description of the kind of gas and not the amount or quantity of such gas. Further the word "danger" cannot be read as standing unqualified. The expression used is "other source of danger," which I take to mean, that which originates or gives rise to danger and refers to the presence of the inflammable gas, without reference to its quantity.

As to the importance to the management of such a record there can be no question, since it is from the Daily Report Book that the manager, to a large extent, derives his information as to the safety of the underground workings. As Mr. Steele stated — "He worked the mine from the Report Book," and the finding of a ¼ or ½ inch cap of gas in the intake to No. 5 had never been brought to his notice.

I therefore take the view that it is of the utmost importance that all gas, however small in quantity, should be recorded for the information of the management and I am distinctly of opinion that the law requires this to be done.

I must therefore report that there was a contravention of General Rule 4 by the overmen and deputies and of their own Special Rules relating to the reporting of gas.

As to 3 and 4. — Occurrence of gas and withdrawal of workmen. General Rule 7. Sufficient has been quoted from the evidence to show that men were sometimes withdrawn from their working places. These occurrences were "just reported in the Daily Report Book." No separate book designed to receive entries connected with matters arising under General Rule 7 was in use.

General Rule 7* directs the withdrawal of workmen in case of danger and applies to dangers arising from any cause whatever. Under the rule there have to be two examinations and a report, whenever withdrawal has been deemed imperative, and such report has to be recorded in a book "which shall be kept at the mine for the purpose."

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* Rule 7. — If at any time it is found by the person for the time being in charge of the mine, or any part thereof, that by reason of inflammable gasses prevailing in the mine, or that part thereof, or of any cause whatever, the mine or that part is dangerous, every workman shall be withdrawn from the mine or part so found dangerous, and a competent person appointed for the purpose shall inspect the mine or part so found dangerous, and if the danger arises from inflammable gas shall inspect the mine or part with a locked safety lamp ; and in every case shall make a true report of the condition of the mine or part ; and a workman shall not, except in so far as is necessary for inquiring into the cause of danger or for the removal thereof, or for exploration, be re-admitted into the mine, or part so found dangerous, until the same is stated by the person appointed as aforesaid not to be dangerous. Every such report shall be recorded in a book, which shall be kept at the mine for the purpose, and shall be signed by the person who made the inspection.