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(1957) JELR 87182 (CA)

Court of Appeal  •  25 Mar 1957  •  United Kingdom



DENNING, L.J.: The judgment which I am about to read is the judgment of the court.

On Jan. 21, 1953, the deceased coalminer, Emlyn Jones, was buried by a fall of roof in the Llay Colliery at Wrexham and died. His widow brings this action against his employers, the National Coal Board, claiming damages on the ground that they were in breach of their statutory duties, or alternatively were guilty of negligence at common law.

The case gave rise to complicated issues of fact and law which I will try to state in outline. The deceased was working at a coal face over half a mile below ground. The seam was five feet six inches thick. The face was 125yards long. It was worked by mechanical cutters, and the coal was taken away on a conveyor belt. There were two roads leading to the face, one at each end. As the face moved forward, the space behind (from which coal had been taken) was filled in with packing, but the roadways were of course kept clear. These roadways had to be made higher than the five six inches (the thickness of the seam) and accordingly, as they moved forward, men ripped down the material from the roof above the roadway so as to increase the height. The procedure was for one shift of men to get out the coal from the seam for about eight feet, and for the next shift to rip down the material from above. The place where these rippers worked was called the “ripping”. The edge of the material at that place was called the “ripping lip”. The roadway up to a point ten yards from the face was called the “road”. The last ten yards was called the “roadhead”.

Some six or seven weeks before the deceased was killed there had been a previous fall at the roadhead at this point, and conditions had not yet been restored to normal working. The fallen debris had been cleared away and the face (of the coal above) had been dressed down. In order to fill in the gap from which material had fallen, timber covering was put over the steel arches. In addition, four rails each nine feet long had been forepoled into the top of the coal seam, so that five feet of each was embedded in the seam leaving four feet outside. The outer ends of these four rails were supported on a rolled steel joist, which was itself supported on three wooden props about five feet high. The space above the rails was also filled with timber. In this way it was believed that the place had been made secure from any further fall downwards or out-bye.

The next step, in order to get back to normal working, was to get out the coal so as to make a normal roadhead again. The whole area was known to be “tender” because of the previous fall, and the wet condition of the strata above the coal. It was unwise, therefore, to make a frontal attack on the face from the roadhead, but better to make a flank attack by working from the side by hand. That is the work on which the deceased and his mate were about to engage on the morning of his death. Previous shifts had made some progress in this flank attack, and had got out coal from the space underneath two of the rails. The deceased had just come on the work, and he and his mates were preparing to get more coal, when a large fall occurred completely burying them. Every effort was made to dig them out. His mate was rescued, but the deceased died. Afterwards the surveyor found that the rolled steel joist was still in position, but the rails had broken. This seems to show that the steps taken to secure taken to secure the newly exposed roof were not sufficient.

Such being the facts in outline, counsel for the widow took before us these points:

(i) That the National Coal Board had broken s. 49 of the Coal Mines Act, 1911, which says that “The roof and sides of every travelling road and working place shall be made secure.....”

(ii) That the National Coal Board had broken reg. 6 (2) of the Coal Mines (support of Roof and Sides) General Regulations, 1947 (S.R and O. 1947 No. 973), which says that

“Where there are any roof rippings within the roadhead, a bar or bars shall be set as near as practicable to each ripping lip extending across the whole width of the ripping”.

(iii) That the National Coal Board had been guilty of negligence at common law in that they had not taken proper steps to support the place where the deceased was working in that they had only put posts there, whereas they ought to have put chocks, which are well known to be much better.

Counsel for the National Coal Board denied those charges, and in regard to the alleged breaches of statutory duty he relied on s. 102 (8) of the Act of 1911 which excuses the board from liability for damages “if it is shown that it was not reasonably practicable to avoid or prevent the breach”.

Thus far the case raised nothing out of the ordinary for our consideration. But counsel for the widow took a further ground of appeal which is stated in the notice of appeal to be.

“that the nature and extent of the learned judge’s interruptions during the hearing of the evidence called on behalf of the defendants in particular made it virtually impossible for counsel for the plaintiff to put the plaintiff’s case properly or adequately or to cross-examine the witnesses called on behalf of the defendants adequately or effectively”.

Furthermore counsel for the board said that, in case there was any chance of our being persuaded that counsel for the widow’s three points on liability were correct, he wished himself to give a cross-notice of appeal in similar terms complaining that the judge’s interruptions prevented him from properly putting his case. We gave him leave to give a cross-notice to this effect.

We much regret that it has fallen to our lot to consider such a complaint against one of Her Majesty’s judges: but consider it we must, because we can only do justice between these parties if we are satisfied that the primary facts have been properly found by the judge on a fair trial between the parties. Once we have the primary facts fairly found, we are in as good a position as the judge to draw inferences or conclusions from those facts, but we cannot embark on this task unless the foundation of primary facts is secure.

In order to consider the complaint we must state the course of the trial. Mr. Mars-Jones of counsel appeared for the widow, and opened the case for her. He relied on s. 49 of the Act, and said it was the duty of the board to make the roof secure, and that the fall showed that they had not done it. In case that approach was wrong, he relied on the Support Regulations and on the common law, and he made several specific criticisms in which he said that the board had failed to do what they ought to have done. He called the widow to give evidence on damages and then an expert, Mr. William Charles Davies. This expert had not been down the mine, but he relied on a plan which had been made by the board’s surveyor shortly after the accident. This enabled him to make criticisms on the same lines as those opened by counsel for the widow. The judge intervened on several occasions during the examination-in-chief of Mr. W. C. Davies and also during his cross-examination, but this was in order to enable him to understand the technical points of the case, and cannot properly be made the subject of complaint. Counsel for the widow then closed his case.

Mr. Edmund Davies, Q.C., who appealed for the National Coal Board, then called Mr. John Kerr. He was the manager of the Llay Main Colliery at the time of the accident and had inspected the spot on Jan. 19, 1953, two days before the roof fell. He was accompanied on that occasion by H.M. Inspector of Mines, who made no complaint of the manner in which the work was being done. Mr. Kerr explained to the judge exactly what was being done to support the roof, and the judge, naturally enough, intervened from time to time to see that he understood. Then leading counsel for the board began to ask Mr. Kerr to deal with the criticisms which had been made by counsel for the widow, and by his expert witness, Mr. W.C. Davies. Now when this happened the judge, we fear, intervened far too much. He had himself made a note of the criticisms and, in his anxiety to understand Mr. Kerr’s replies to these criticisms, he took the examination of the witness, but during the cross-examination the judge intervened on several occasions to protect the witness from what he thought was a misleading question, and to bring out points in favour of the witness’s point of view.

Next leading counsel for the board called Mr. Thomas George Davies. He was the deputy who was actually on duty on Jan. 21, 1953, when the accident occurred. He said that he thought that the roof was secure, and that he told the deceased workman and his mate to get the remainder of the coal off, and try to get another rolled steel joist up at this point. He examination-in-chief proceeded on normal lines, but during his cross-examination by counsel for the widow the judge seemed to be afraid that he was being misled, and intervened at considerable length and in effect stopped his cross-examination on the important points of chocks. When leading counsel for the board re-examined, the judge cut him short saying: “that is what has been given again and again”.

The leading counsel for the board called the surveyor, Mr. Philip Edgar Roberts, who made the plan. Nothing untoward occurred in his short evidence. Finally leading counsel for the board called Mr. Cecil Henry Bates, an expert consultant mining engineer. We are afraid that the judge took the examination-in-chief largely out of the hands of counsel. He took the points of criticisms made against the board, and went through them with the witness, and appeared to accept his explanations. Counsel for the widow cross-examined the witness, but after a while the judge disclosed much impatience with him and he brought it to a close.

No one can doubt that the judge, in intervening as he did, was actuated by the best motives. He was anxious to understand the details of this complicated case, and asked questions to get them clear in his mind. He was anxious that the witnesses should not be harassed unduly in cross-examination, and intervened to protect them when he thought necessary. He was anxious to investigate all the various criticisms that had been made against the board, and to see whether they were well founded or not. Hence he took them up himself with the witnesses from time to time. He was anxious that the case should not be dragged on too long, and intimated clearly when he thought that a point had been sufficiently explored. All those are worthy motives on which judges daily intervene in the conduct of cases and have done for centuries.

Nevertheless, we are quite clear that the interventions, taken together, were far more than they should have been. In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question “How’s that?” His object above all is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not LORD ELDON, L.C., who said in a notable passage that “truth is best discovered by powerful statements on both sides of the question” (see Ex p. Lloyd (1) (1822), Mont. 70, n.) and LORD GREENE, M.R., who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputation? If a judge, said LORD GREENE, should himself conduct the examination of witnesses,

“he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict”.

See Yuil v. Yuill (2) ([1945] ALL E.R. 183 at p. 189).

Yes, he she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth: and the less dust there is about the better. Let the advocates one after the other put the weights into the scales – the “nicely calculated less or more” – but the judge at the end decides which way the balance tilts, be it ever so slightly. So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witnesses whom h thinks might throw some light on the facts. He must rest content with the witnesses called by the parties; see Re Enoch and Zaretsky, bock and Co. (3) ([1910] 1 K.B. 327). So also it is for the advocates, each in his turn, to examine the witnesses, and not for the judge to take it on himself lest by so doing he appear to favour one side or the other; see R. v. Cain (4) ((1936), 25 Cr. App. Rep. 204); R. v. Bateman (5) (1946), 31 Cr. App. Rep. 106); and Harris v. Harris (6) (Apr. 8, 1952, The Times, Apr. 9, 1952) by BIRKET, L.J., especially. And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost; see R. v. Clewer (7) (1953), 37 Cr. App. Rep. 37). The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. LORD BACON spoke right when he said that:

“Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal”.

Such are our standards. They are set so high that we cannot hope to attain them all the time. In the very pursuit of justice, our keenness may out-run our sureness, and we may trip and fall. That is what has happened here. A judge of acute perception, acknowledged learning, and actuated by the best of motives, has nevertheless himself intervened so much in the conduct of the case that one of the parties – nay, each of them – has come away complaining that he was not able properly to put his case; and these complaints are, we think, justified.

We have sufficiently indicated the nature of the interventions already, but there is one matter which we would specially mention. Leading counsel for the widow made particular complaint of the interference by the judge during the cross-examination of the board’s witnesses by junior counsel for the widow. Now it cannot, of course, be doubted that a judge is not only entitled but is, indeed board to intervene at any stage of a witness’s evidence if he feels that, by reason of the technical nature of the evidence or otherwise, it is only by putting question of his own that he can properly follow and appreciate what the witness is saying. Nevertheless, it is obvious for more than one reason that such interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness’s evidence can be properly trusted, and it loses much of its effectiveness in counsel’s hands if the witness is given time to think out the answer to awkward question; the very gust of cross-examination lies in the unbroken sequence of question and answer. Further than this, cross-examining counsel is at a grave disadvantage if he is prevented from following a preconceived line of inquiry which is, in his view, most likely to elicit admissions from the witness or qualifications of the evidence which he has given in chief. Excessive judicial interruption inevitably weakens the effectiveness of cross-examination in relation to both the aspects which we have mentioned, for at one and the same time it gives a witness valuable time for though before answering a difficult question, and diverts cross-examining counsel from the course which he had intended to pursue, and to which it is by no means easy, sometimes, to return. Leading counsel for the widow submitted that the extent of the learned judge’s interruptions was such that junior counsel for the widow was unduly hampered in his task of probing and testing the evidence which the board’s witnesses gave. We are reluctantly constrained to hold that this submission is well-founded. It appears to us that the interventions by the learned judge while junior counsel for the widow was cross-examining went far beyond what was required to enable the judge to follow the witnesses’ evidence and on occasion took the form of initiating discussions with counsel on questions of law; further, and all too frequently, the judge interrupted in the middle of a witness’s answer to a question, or even before the witness had started to answer at all. In our view it is at least possible that the constant interruptions to which counsel for the widow was subjected from the bench may well have prevented him from eliciting from the board’s witnesses answers which would have been helpful to the widow’s case, and correspondingly damaging to that of the board.

The judge seems to have been under the impression on occasions that counsel for the widow was asking as misleading question. We do not gain that impression ourselves. It seems to us that the case was conducted by counsel on both sides with complete propriety.

Counsel for the board asked us to say that the decision reached by the judge was the inevitable decision, but we cannot say that. We have not the material for the purpose. We have some of the primary facts, but not all of those necessary to a decision. We have an adequate description of the state of affairs in this mine before and after the first fall, and before and after the second fall; but we have not sufficient evidence to be sure whether further precautions might not have been taken to avoid the accident. It seems to us that the widow made a strong case which calls for an answer. She showed that in the middle of December there was a big fall of roof at the roadhead notwithstanding that all the Support. Regulations were observed, and every normal precaution was taken. The fall disclosed a dangerous condition of the strata at this point. Seven weeks later her husband was killed by a second fall at near enough the self-same place by the self-same danger. Her counsel makes on her behalf this strong plea: If this known danger could have been avoided by taking extraordinary precautions, why did the board not take those precautions? If the danger could not be avoided by any known precautions, why was her husband sent to work there? Better stop getting coal at that point than send him to his death. The board made answer that they put up many more props than usual. The widow’s counsel asked: why did not they use chocks instead of props, since chocks give much better support than props. The bard answered that they knew that it was most desirable to use chocks whenever possible, but that they could not get them in. The judge seems to have regarded that as a sufficient answer, though there is little doubt that chocks could have been used if the conveyor belt had been shortened. The judge gave, as part of his reason for accepting the board’s answer, his view that it was good mining practice not to use chocks, and that it would have been inconvenient to curtail the conveyor belt; but such considerations carry little if any weight when extreme measures for safety are called for. Again, he wrongly assumed that the shortening of the conveyor belt would involve exposing more men to the same risk. We are not saying that the judge was necessarily wrong in accepting the board’s answer, but we would like to have more facts before accepting it as sufficient. In the absence of them, we do not think it would be fair to either party to pronounce on it.

In these circumstances, we think we must grant the widow a new trial. There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. The widow and the National Coal Board stand in this respect on the level. No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.

Counsel for the widow urged us in any event to give a ruling on the true interpretation of s. 49 of the Act and of the Support Regulations; but we do not think it desirable so to do. If there was a breach of the section or regulations there is still the question under s. 102 (8) whether it was reasonably practicable to avoid or prevent the breach. This is closely allied to the issue at common law whether the board took every reasonable precaution that the situation demanded. So close indeed are these issues that we think that, if the board are exempt from liability at common law, they will be exempt under s. 102 (8) also; and if they are liable at common law, there is no need to consider whether they are also liable by statute.

We have come to the conclusion with much regret that the only thing we can do in this case is to order a new trial. We allow the appeal accordingly.

Appeal allowed: new trial ordered.

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