Scottish Court of Session Decisions

LORD STRACHAN'S OPINION.—The deceased, John Wilson Angus, died on 28th September 1950 as a result of an accident which was due to subsidence in a field on the farm of Bowhouse, near West Wemyss, Fife. The deceased was an agricultural contractor and had been instructed by the farmer to spray the field with acid. For that work he used a tractor. It is averred that, as he was driving the tractor over the field, the ground over which he was travelling suddenly gave way and fell a distance of about eight feet. The tractor fell with the ground, and the deceased was trapped underneath it and was asphyxiated.

Underneath the point where the accident happened there were certain coal workings from which, according to the pursuer's averments, coal had been extracted about the years 1838, 1921 and 1942. The pursuer's case is that the subsidence in the field was caused by the negligence of the Wemyss Coal Company and that the liability for that negligence is now enforceable against the National Coal Board by virtue of section 48(1)(a)of the Coal Industry Nationalisation Act, 1946. The pursuer now sues the National Coal Board for damages, and she sues both as an individual and as tutrix-in-law of the deceased's pupil child.

The main question in the case is whether or not section 48(1)(a) of the statute applies to a liability of the kind which is averred. The Coal Board maintains that the section is not applicable and that the action is therefore irrelevant and should be dismissed. The pursuer on the other hand contends that a relevant ground of liability has been averred. A proposed issue for the trial of the case before a jury was lodged in process, but at the hearing on the Debate Roll counsel for the pursuer departed from the proposal that there should be a jury trial and moved that a proof be allowed.

[His Lordship quoted section 48(1)(a), and continued]—That statutory provision is the sole ground upon which the pursuer seeks to bring home liability to the National Coal Board in this action. It is therefore crucial to her case to show that the section is applicable. In order to do so the pursuer must, in my opinion, (1)relevantly aver facts and circumstances which apart from the foregoing section would render the Wemyss Coal Company liable to the pursuer in damages in respect of the death of the deceased, and (2)show that that Liability was a liability for a breach of a right of support. It is thus important in the first place to note the nature of the liability which the pursuer now seeks to enforce.

The facts and circumstances which the pursuer has averred may be briefly summarised as follows. Underneath the field in which the accident happened there was, near the surface, the Wemyss Parrot Coal Seam, in which there were old workings which had ceased in 1838. The extraction of coal from these old workings had been by the stoop and room method. The support for the surface thereby left would have been adequate if undisturbed by subsequent workings in underlying seams. The Wemyss Coal Company, however, extracted the Dysart Main Coal Seam at a depth of 640 feet in 1921 and the Sandwell Coal Seam at a depth of 400 feet in 1942. Both of those later workings were by the long wall method of total extraction. It is averred that the extraction of those two seams caused considerable subsidence and fracture of the overlying strata, and left the roof of the old roads or rooms in the Wemyss Parrot Coal in such a state of suspension that any extra weight on the surface would be liable to cause complete collapse. The pursuer avers that, when the weight of the tractor which the deceased was driving was brought to bear on the surface, the ground subsided because of the fact that the surface was inadequately supported.

The liability which is alleged against the Wemyss Coal Company is, as I have said, a liability for negligence. No other ground of liability is suggested. The averments of fault on the part of that company are set forth in condescendence 4, to which I refer. Briefly put, the case of negligence is that the company knew, or ought to have known, that, as a result of their workings in the Dysart Main Coal and in the Sand-well Coal, subsidence of the surface was likely to occur at any time, especially if any weight was brought to bear upon it; that they knew or ought to have known that from time to time the surface at the place in question "was likely to be used by farm workers and farm machinery and by the farmer's invitees, such as the deceased"; that hi those circumstances it was the duty of the company not to extract the coal from the said two seams below the Parrot workings so as to expose "said person" to the risk of sudden injury; and that in those duties the company failed and so caused the accident.

I shall assume, but I am not to be taken as deciding, that the pursuer has relevantly averred negligence upon the part of the Wemyss Coal Company. I am, however, quite definitely of opinion that there is no averment at all of a right of support or of a breach of a right of support, and no relevant averment of a liability to which the Wemyss Coal Company would be subject for a breach of a right of support. The pursuer's case simply assumes that a failure to take due care to avoid personal injury to someone on the surface by subsidence is a breach of a right of support. In my opinion, that is a fallacy. The phrase "rights of support" as it occurs in section 48(1)(a)in the statute must, I think, be given the meaning which is ordinarily attributed to those words in law. At common law a right of support is a right to the support of land or buildings by land or buildings, and it is a right which is vested in the owner of the surface as a natural incident of his ownership of the surface. If any authority is needed for those propositions, it will be found in Rankine on Land-Ownership, (4th ed.) at pp. 488 et seq., in the chapter headed "Support of Lands and Houses-Surface Damages," and in the article on "Support" by Lord Carmont in Green's Encyclopaedia, vol. xiv. By contract or statute a right of support might conceivably be constituted in someone other than the owner of the surface, for example, in connexion with the support of such things as sewers or gas pipes, and it may be—I say no more—that liability for breach of such contractual or statutory rights would fall under section 48 (1)(a). The support of such things in the soil seems to me to be analogous to the support of buildings on the surface. I am not, therefore, disposed to go so far as to accept an argument which was addressed to me by counsel for the National Coal Board to the effect that section 48 (1) (a) deals solely with rights of the owner of the surface, and it is in this case unnecessary for me so to decide. But I am of opinion that it would be an entirely novel conception to say that an invitee of the tenant of the surface has a right of support against a mining company, meaning thereby a right to have himself and his vehicle supported as he moves about the surface. Counsel for the pursuer argued that the right of the owner of the surface was a right to enjoy his property and therefore included a right to cultivate the surface. It was said that his right of support must therefore include a derivative right of support for all those whom he invites on to his land in order to cultivate it. I was not, however, referred to any decided case or any text-book where the words "right of support" were used in any such derivative sense.

In appropriate circumstances a person such as the deceased may have a right to claim damages for personal injury caused by subsidence where the injury can be said to be due to negligence, that is, where it can be said that there was on the part of those conducting mining operations a duty to take due care for the safety of the person concerned and a failure in that duty. But such a right depends on the ordinary principles of the law of negligence and is not a right of support as that term is ordinarily used in law. I see no warrant for giving to. the words "right of support" as they occur in section 48 (1) (a) such an unusual and novel meaning as that for which the pursuer contends. Had it been the intention of Parliament that claims which are based solely on negligence were to be enforceable against the National Coal Board, the statute would, in my opinion, have said so expressly.

Counsel for the pursuer founded strongly upon M'Cormick v. Fife Coal Co ., 1931 S. C. 19. The claim in that case, however, was treated by the Court as one which was founded on negligence, and, in my opinion, the decision has no bearing on the question as to what is a right of support. It may be that M'Cormick would be an authority in the pursuer's favour in a claim against the Wemyss Coal Company, but the case does not assist the pursuer at all on the question whether any liability which may have rested on the Wemyss Coal Company is now enforceable against the National Coal Board by virtue of section 48 (1) (a).

For the foregoing reasons I am of opinion that the pursuer has not relevantly averred that the alleged liability of the Wemyss Coal Company was a liability for a breach of a right of support. She has therefore not brought this case within the statutory provisions by which alone the alleged liability could be made enforceable against the defenders. I shall, therefore, sustain the first and second pleas in law for the defenders and shall dismiss the action.

In view of the decision which I have reached it is unnecessary for me to deal with an argument, addressed to me by counsel for the defenders, to the effect that there is no relevant case of negligence averred against the Wemyss Coal Company.

The pursuer reclaimed, and the case was heard before the Second Division (without Lord Patrick) on 4th and 9th February 1955.