United Kingdom House of Lords Decisions

Die Jovis, 25° Junii 1953

Parliamentary Archives,
HL/PO/JU/4/3/1021

Lord
Porter

Lord
Oaksey

Lord Reid

Lord
Tucker

Lord

Asquith of
Bishop-
stone

HOUSE OF LORDS

STAPLEY

v.
GYPSUM MINES LIMITED.

Lord Porter

MY LORDS,

This Appeal is brought by Mrs. Seagull Gladys Stapley, the widow of
Mr. John Sydney Stapley, against a decision of the Court of Appeal which
held that her action failed. Before Sellers, J. she had succeeded in recover-
ing £1,512 10s., being half the damages of £3,025 which that learned Judge
found she had sustained from the death of her husband.

Mr. Stapley was employed by the Respondents as a breaker in their
gypsum mine, and part of his duty was to break up gypsum rock, which had
been blasted by a previous shift of workers, in order that it might be
removed by scraper haulage from the spot where it lay. The circumstances
giving rise to her claim are not in dispute and can be shortly stated.

At about 4.15 p.m. on the 21st day of August, 1950, John Sydney Stapley
and one Dale, in the course of their employment by the Respondents, were
underground in No. 9 Stope at the Respondents' Gypsum Mine in the
'County of Sussex. John Sydney Stapley was a breaker and Dale a borer,
which was a slightly more skilled task than that of breaker, but the two
men were of equal status. Neither was in control of or entitled to give
orders to the other. The task of John Sydney Stapley was to break up
gypsum with a pick or a drill to a size convenient for removal, and Dale's
task was to prepare the stope in order that a scraper hauler could be
installed in it to facilitate the removal of the gypsum. When they were
about to commence work in the stope they both observed that the roof
was unsafe and likely to fall, a condition which is of frequent occurrence
in this class of mine, and particularly so in the stope in question because
a fault in the rock formation ran diagonally across its entrance. While the
two men were in the stope and before they had commenced work the
Respondents' foreman, Church, in the course of his regulation routine round
of the mine, came to the entrance of the stope, saw Stapley and Dale and
was informed by them of the condition of the roof. He there and then
instructed them both to bring it down so as to render the position safe for
work.

The task of bringing down the roof was one which was understood by
both men and was one within their capacity to perform without supervision.
Moreover, they were both well aware that such an order meant that they
were not to work in the stope until they had got the roof down.

There were three methods by which that task could have been accom-
plished, all of which were well known to both, namely, with picks, with
pinch bars or by boring holes in the roof and then summoning the shot firer
to blast it down.

Church left Stapley and Dale after he had instructed them to bring down
the roof, it being unnecessary either for him or anyone else to be present
to supervise them whilst they performed this duty. For a period of approxi-
mately half an hour they attempted to perform their task, restricting them-
selves to the use of picks. They might possibly have used pinch bars and
certainly might have resorted to boring and shot-firing, but, having failed
to bring down the roof with picks, they decided to disregard the instructions
of their foreman and to return to their respective duties of breaker and
borer. Having made this decision, Dale went to perform his duties in the
twitten near No. 9 Stope, leaving Stapley to work in the stope itself under
the roof which they had been ordered to bring down and which they both
knew had shown signs of danger but believed to be safe enough. A short
time after they had abandoned their attempts to bring down the roof and
had commenced their respective work, Dale returned to No. 9 Stope,
and found Stapley buried beneath a quantity of gypsum which had fallen
from the roof and killed him.

2

The liability sought to be placed upon the Respondents was based on
Common Law and upon a breach of the provisions of Regulations 7 (3)
and 14 (5) of the Metalliferous Mines Regulations 1938 (S.R. & O. 1938
No. 630 as amended by S.R. & O. 1945 No. 1351) made under section 86
of the Coal Mines Act and applied to Metalliferous Mines by the Mining
Industry Act, 1920.

Certain others of the Regulations were relied upon as having some bearing
on the point at issue and are accordingly inserted here: —

" Regulation 7 (3). The roof and sides of every travelling road,
" outlet and working place shall be made secure, and no person, unless
" engaged in repairing or in investigating the safety of the workings
" shall travel on or work in any travelling road or working place which
" is not so made secure.

" Regulation 14 (1). The owner or agent shall carry out the provi-
" sions of the Acts, the Regulations, and the special rules and to the
" best of his power enforce the observance thereof, and he shall give
" such directions as may be necessary to ensure compliance with those
" provisions and to secure the safety of the mine, and the safety, health
" and proper discipline of the persons employed.

" Regulation 14 (5). The owner or agent or an official appointed in
" writing by him for the purpose shall—

" (a) During every ordinary mineral-getting shift, inspect every
" working place and road in every part of the mine in which persons
" work or along which they have to pass . . . ; every dangerous
" place shall be fenced off, or, if this is not practicable, adequate
" warning shall be given so that such place shall not be inadvertently
" entered by any person.

" Regulation 14 (7). If any danger is revealed by the examination
" or inspection, steps shall be taken at once to remove it and except
" for that purpose any person exposed to the danger shall be withdrawn.

" Regulation 15 (1). Every person employed at the mine shall comply
" with the provisions of the Acts, the Regulations and the special rules
" and any regulation made by the owner or agent in pursuance thereof
" and with such directions concerning safety and discipline as may be
" given to him by those in authority over him.

" (2) Every workman employed in the mine shall, before commencing
" work and during the course of it, especially after blasting, make a
" careful examination of his working place, and as far as practicable
" remove any or secure any loose rock, stones or ground which might
" be a danger.

" Regulation 15 (3). Every person employed at the mine who notices
" anything that appears unsafe or likely to cause danger shall remedy
" the matter if it is within the scope of his duty, and if not shall with-
" draw forthwith from the place of danger and report the matter to the
" owner, agent or other responsible official.

" Regulation 15 (10). No person shall negligently or wilfully do
" anything likely to endanger life or limb in the mine or negligently
" or wilfully omit to do anything necessary for the safety of the mine
" or of the persons employed therein,"

Both grounds of claim were forcibly argued before your Lordships' House
based in each case substantially upon the same facts and reasoning. So
far as the statute was concerned it was submitted that the duty under
Regulation 7 (3) to make the roof and sides of the working place secure
was an absolute one, that the Respondents had failed to do so, albeit
through no personal fault of their own, but they had not fulfilled the require-
ments of the regulation though they had taken all usual or indeed all possible
steps to comply with their obligations. It is true, the Appellant admitted,
that contributory negligence was a defence in part to such a
claim, and it was conceded that Stapley was himself negligent and in part
the author of his own death. But Dale, it was urged, was also negligent;
he also had failed to carry out his owner's orders and was in breach of



3

Regulation 15 (1), (2), (3) and (10). The Respondents as employers, it was
submitted, were responsible for the negligence or neglect of duty of their
employees, of whom Dale was one. Dale's action was, it was said, at any
rate in part the cause for Stapley's death, and now that the doctrine of
common employment has been abrogated and contributory negligence is
no longer a complete defence, Dale's employers are affected by Dale's breach
and must pay the penalty in so far as his fault contributed to the disaster.
This view, as I understand it, was that which appealed to the learned Judge,
and he based his decision on it without distinguishing between a common
law and a statutory liability.

My Lords, a number of alleged acts of negligence were inserted in the
Statement of Claim, but all save two were disposed of by the learned Judge
and are not now relied upon.

The two remaining are that the Defendant " failed to make the said
" roof of the said stope or working place secure contrary to Regulation 7 (3)
" of the said Regulations ", and (by amendment) that " the said Dale their
" servant failed to bring down the said roof by firing or boring holes for
" firing and/or failed to report to the said Church his inability to bring
" down the said roof."

It was upon those allegations, which he found to be proved, that Sellers, J.
held the Respondents liable. As, in his view, however, Stapley was in
part to blame for the accident, he deducted one half of the award which he
would otherwise have given.

The Appellant now accepts the decision of Sellers, J. and does not seek
to disturb his finding that Stapley's own act contributed to his death or the
apportionment consequent thereon.

The Court of Appeal agreed that the Respondents were in breach of
their statutory duty in that they had not fulfilled the obligation imposed on
them by Regulation 7 (3) of keeping the roof secure and that that duty was
absolute. They also, like Sellers, J., were of opinion that both men had
failed to carry out the orders of their foreman, Church, and therefore had
broken the statutory obligation imposed by Regulation 15 (1), (2), (3) and
(10).

Once those findings are accepted it is to my mind unnecessary to consider
whether either masters or men had neglected any of the other duties which
the statute enjoined. They were in breach and it could make no difference
whether the breach was less or greater, except possibly to the extent to which
the blame was distributed and the amount to be deducted from the
Appellant's award.

All the members of the Court of Appeal, however, absolved the Respon-
dents from liability, but so far as I am able to judge not wholly on the
same grounds. It was said on the one hand that the obligation placed
upon Stapley and Dale was a joint obligation and each was wholly to blame
for neglecting to carry it out. One can set out the proposition in the words
of Birkett, L.J. He says:

" Now, there is no doubt that in this case the men were charged with
" the statutory duty jointly, and the learned Judge so finds. Whatever
" may be attributed to Dale by way of breach of duty can be attributed
" to Stapley with equal force. If Stapley had not failed in his statutory
" duty the drummy roof would have been brought down whatever Dale
" did or did not do. Why, then, because one of the two men is killed
" should the breach of duty be attributed to Dale the survivor in order
" to make the employers liable? It was a joint duty, not the duty of
" Dale alone; but by the amendment the learned Judge indicated that
" he was deciding the case as though Stapley had nothing to do with
" the breach of duty that resulted in the drummy roof being left without
" being brought down, though he recognised that Stapley was equally
" to blame.

" The two men had mutually agreed to disobey the orders of Church.
" and in so doing committed offences against the Metalliferous Mines
" Regulation Acts of 1872 and 1875 punishable by tine and
" imprisonment.

2

4

" It seems to me to be impossible to say that the employers were
" guilty of a breach of statutory duty because of the default of Dale
" without saying in the same breath that they were at the same time
" guilty of the same breach because of the default of Stapley."

The other ground was that the cause of the death was, in the legal sense,
the resumption of work by Stapley under the " drummy " roof.

Again the Lord Justice says:

"But I think this appeal can be decided on another ground. It
" seems clear that if the inquiry to be made is: What was the cause
" of Stapley's death? Then the answer must be that it was his own breach
" of duty in resuming work under the drummy roof. If he had not
" done that, it is obvious that he would not have been killed."

Singleton and Morris, L.JJ. appear, on the other hand, to rely mainly
on the first of the two reasons.

My Lords, I find the first ground elusive and difficult. It may be that in
some future case your Lordships will be confronted with the difficulty of
finding a solution.

For myself I am content to say that I agree with the judgment of the
Court of Appeal upon the second point. The cause of Stapley's death,
to my mind, was brought about by his own return to the stope.

Causation is always a difficult topic. One is but using a commonplace
if one repeats that many causes have some place in the sequence of events
which lead to a result, or follows Lord Shaw in saying that causation is not
a chain but a net. The question always is how far back is one justified in
going or how wide a net must one envisage. In the present case both men,
it is true, neglected their duty, and it is said that they agreed to do so. The
exact meaning of what their agreement amounted to has never been inquired
into or elucidated. For my own part I agree with Morris, L.J. when he
says: "I do not consider that their 'agreement' should be considered as
" denoting more than their concurrence in a joint decision to abandon their
" duty to make the roof secure ". Each, in my view, after discussing the
matter with the other. went his own way and returned to his own work.
If I did not hold this opinion a further question might require consideration,
viz.. whether Stapley in agreeing that Dale should return to his work and
leave the appointed task undone was not to that extent also the victim of
his own negligence so that his and not Dale's act was the cause of his death.

It was urged that if Dale had insisted on continuing the work or had
started to bore holes for shot-firing Stapley would have followed his lead.
It may be so ; but such a conclusion is at best speculative, and in any case it
was not Dale's place to command or persuade his comrade to do his duty.

The more forcible argument is to say that Stapley's death was caused by
the fall of the roof, that that fall would not have occurred if Dale had either
bored the roof for shot-firing and obtained the assistance of a shot-firer
or reported again to Church. It may indeed be said that historically the
fall of the roof was a cause of the accident, but though it was a cause, yet,
in my opinion, it was not, in a legal sense, the cause. The result was
brought about by Stapley's own act. and for that act his employers are
not liable.

My Lords, a number of authorities were brought to your Lordships'
attention, 1 think for two purposes: (1) to show that the duty of the
Respondents under Regulation 7 (3) was an absolute one and (2) to direct
your Lordships' minds to the relevant approach to matters of causation.

For my own part I do not find myself much helped in this way. In the
first place, I am content, for the purpose of this case, to assume without
deciding that the employers' duty under Regulation 7 (3) is absolute, and
such an assumption does not conflict with my view as to what the result
of the case should be. In the second place, one example of what has been
deemed to be the cause of an event is but of slight assistance to the true
view in other and different circumstances. I agree indeed with the opinion
which has been commonly held since the decision of the Admiralty Com-



5

missioners v. s.s. Volute [1922] 1 A.C. at p. 144, viz. that the abolition of
the rule that any contributory negligence, however small, on the part of a
plaintiff defeated his claim, (has no effect upon causation. It enables the
Court (be it judge or jury) to seek less strenuously to find some ground for
holding the plaintiff free from blame or for reaching the conclusion that
his negligence played no (part in the ensuing accident inasmuch as owing
to the change in the law the blame can now be apportioned equitably
between the two parties.

What was the cause of an event, however, leads to an enquiry of the
same nature as existed before the change.

I should add that if I took the view which commended itself to the learned
Judge I should nevertheless think the proportions in which he divided the
blame attributed far too much to Dale. If I were left to myself I should
place it at an infinitesimal quantity, but if the matter becomes material,
I should not think it necessary to dissent from an allowance to the represen-
tatives of the deceased man of twenty per cent, of the total damage, i.e. £605.



Lord Oaksey

MY LORDS,

The only question which was decided in the Courts below and the only
question fully argued before your Lordships was whether the breach of duty
by Dale was causally connected with the death of the Plaintiff's husband
Stapley. The doctrine of common employment having been abolished, there
is no doubt that the Respondents are liable for Dale's negligence if it was
causally connected with Stanley's death.

Dale's negligence was not disputed, but it was argued that Stapley's death
was not in any way a result of Dale's negligence.

Dale and Stapley were ordered to " fetch the roof down ", and they under-
stood, that order to mean. " Do not work under it until you have got it
down ". But notwithstanding these orders, after attempts to get the roof
down for about half an hour, they decided, after discussion together, that
it was safe and that they would go on with their ordinary work. As Dale was
a borer and Stapley a breaker, Dale's work took him away from the place
in the mine where they had been trying to get the roof down and Stapley's
work took him to that place. There was no suggestion that Dale went
where he did because of the order or to report the matter or to make any
further effort to get the roof down. But it is argued that because the roof
fell while Stapley was under it and Dale was not, Stapley's presence alone
was the cause of his death. In my opinion they were both equally disobeying
an order which applied to each of them and in so doing they were both
equally in breach of their duty.

Dale's disobedience continued up to the moment of Stapley's death, and
I agree with Mr. Justice Sellers that Stapley's death was a result of their
decision not to continue their efforts to get the roof down, a decision which
was just as much Dale's decision as Stapley's. As Lord Birkenhead said
in Admiralty Commissioners v. s.s. Volute [1922] 1 A.C. at p. 144: "the
" question of contributory negligence must be dealt with somewhat broadly
" and upon common-sense principles as a jury would probably deal with
" it. And while no doubt, where a clear line can be drawn, the subsequent
" negligence is the only one to look to, there are cases in which the two
" acts come so closely together, and the second act of negligence is so much
" mixed, up with the state of things brought about by the first act, that the
" party secondly negligent . . . might, on the other hand, invoke the prior
" negligence as being part of the cause of the collision so as to make it a case
" of contribution."

The learned Lord Chancellor was there dealing with acts of negligence
which were not synchronous, but in the present case the breach of duty
by Dale was synchronous with the breach of duty by Stapley and continued



6

up to the moment of Stapley's death, and it seems to me, looking at the
matter broadly and upon common-sense principles, impossible to say that
the acts of Dale and Stapley did not " come so closely together and were
" not so closely mixed up " that Dale's breach of duty could be regarded
as not being part of the cause of Stapley's death.

Lord Justice Morris was apparently of the opinion that because they
agreed to disobey the order and because neither was in a position of authority
over the other the negligence was joint and that Dale's negligence could
not have been asserted by Stapley if he had lived or by his widow in the
circumstances of his death. With the greatest respect for the Lord Justice's
opinion, I cannot follow his reasoning. The doctrines of common employ-
ment and of contributory negligence having been abolished, the only ques-
tion is whether, under the Law Reform (Contributory Negligence) Act, 1945,
Stapley's death was " the result partly of his own fault and partly of the
" fault of " Dale, for whose fault the Respondents are responsible. It follows,
in my opinion, that Stapley, if he had lived, could have asserted as against
the Respondents that Dale's breach of duty had contributed to the accident,
and that his widow can do likewise in the circumstances of his death.

Each man was responsible for disobeying the order and, in my opinion,
it is quite uncertain whether Stapley would have acted as he did had not
Dale agreed that the roof was safe and that they should go on with their
ordinary work.

I think the matter may be tested by considering a case of conspiracy.
If an agreement to commit an unlawful act is sufficiently causally con-
nected with the unlawful act to be criminal, how can it be said that an
agreement to commit a breach of duty is not causally connected with the
consequences to either party of that breach of duty?

For these reasons, my Lords, I am of opinion that the judgment of
Mr. Justice Sellers was right and ought to be restored on the question of
liability. I am not at all certain that I should not have decided the
apportionment in the same way as the learned, judge did, but in view of
your Lordships' view that the apportionment should be varied, I am not
prepared to dissent.

Lord Reid

MY LORDS,

In the Respondents' mine the workings are driven at right angles away
from the main haulage way: the actual working place is the stope and the
part between it and the haulage way is the twitten. The miners all work
in pairs, one being the borer and the other the breaker. There is no sharp
demarcation between their work and neither can give orders to the other,
though the borer appears to be the senior man. Before the accident, Stapley
and Dale were working together, Stapley being the breaker. He was a
steady workman with long experience but rather slow. He had for a time
been a borer but had reverted to being a breaker.

A well recognised danger in the mine is a fall of part of the roof. The
roof is not generally shored up, as any weakness in it can be detected by
tapping it: if it is " drummy ", giving a hollow sound, it is unsafe and must
be taken down. There are three ways of doing this—with a pick, or with a
pinch bar or crow bar, or by firing a shot. Whichever way is adopted, of
course, men doing the necessary work must not stand immediately below the
dangerous part of the roof.

One morning when Stapley and Dale arrived at their stope they tested
the roof and found it to be drummy. They saw the foreman Church about
it, and he ordered them to fetch it down. They all knew that that meant
that no one was to work under the roof before it had come down. Church
did not say which method was to be adopted: both men were accustomed
to this work and the method was properly left to their discretion. They



7

used, picks, but after half an hour had made no impression. The work was
awkwardly placed as a fault ran across the mouth of the stope, the floor
and roof inside being about eighteen inches higher than outside it. Probably
they could not use a pinch bar, but they could easily have prepared the place
for firing a shot and sent for the shot-firer. Instead, according to Dale, whose
evidence was accepted, they agreed that the roof was safe enough for them
to resume their ordinary work, and did so. There was a quantity of gypsum
lying in the stope, and if the roof had been safe their first task would have
been to get this to the haulage way: to do that Stapley had to enter the
stope and break the gypsum into smaller pieces and Dale had to make pre-
parations in the twitten. So they separated, and when Dale came back
half an hour later he found Stapley lying dead in the stope under a large
piece of the roof which had fallen on him.

There is no doubt that if these men had obeyed their orders the accident
would not have happened. Both acted in breach of orders and in breach
of Safety Regulations, and both ought to have known quite well that it was
dangerous for Stapley to enter the stope. The present action against the
Respondents is chiefly based on Dale's fault having contributed to the
accident and on the Respondents being responsible for it, the defence of
common employment being no longer available. So it is necessary to con-
sider what would have happened if Dale had done his duty. It was his
duty either to try a pinch bar or to start boring holes for the shot-firer, and
on the evidence I think that it is highly probable that, if he had insisted
on doing that instead of agreeing with Stapley to neglect their orders and
the Regulations, Stapley would not have stood out against him or tried to
resume his ordinary work. Stapley had nothing to gain from his disobedience,
and if he had not found Dale in agreement with him it appears to me unlikely
that he would have persisted. But if he had persisted and thereby prevented
Dale from carrying out his orders—because Dale could not have worked
at the roof if Stapley had persisted in going below it—then it was Dale's
duty to go for the foreman, as he, Dale, could not give orders to Stapley.
We do not know how soon the roof fell or how long it would have taken
Dale to find and bring the foreman, but it is at least quite likely that the
foreman would have arrived in time to prevent the accident. If Dale's
failure did contribute to the accident, then I do not see on what ground the
Respondents can escape liability in respect of that failure.

In these circumstances it is necessary to determine what caused the death
of Stapley. If it was caused solely by his own fault, then the Appellant
cannot succeed. But if it was caused partly by his own fault and partly by
the fault of Dale, then the Appellant can rely on the Law Reform (Contribu-
tory Negligence) Act, 1945. To determine what caused an accident from
the point of view of legal liability is a most difficult task. If there is any
valid logical or scientific theory of causation it is quite irrelevant in this
connection. In a court of law this question must be decided as a properly
instructed and reasonable jury would decide it. " A jury would not have
" profited by a direction couched in the language of logicians, and expound-
" ing theories of causation, with or without the aid of Latin maxims"
(Grant v. Sun Shipping Co. Ltd. [1948] A.C. 549 per Lord du Parcq at p. 564).
The question must be determined by applying common sense to the facts
of each particular case. One may find that as a matter of history several
people have been at fault and that if any one of them had acted properly
the accident would not have happened, but that does not mean that the
accident must be regarded as having been caused by the faults of all of
them. One must discriminate between those faults which must be discarded
as being too remote and those which must not. Sometimes it is proper to
discard all but one and to regard that one as the sole cause, but in other
cases it is proper to regard two or more as having jointly caused the accident.
I doubt whether any test can be applied generally. It may often be dangerous
to apply to this kind of case tests which have been used in traffic accidents
by land or sea, but in this case I think it useful to adopt phrases from Lord
Birkenhead's speech in The Volute [1922] 1 A.C. 129 at pp. 144, 145, and to
ask was Dale's fault " so much mixed up with the state of things brought
about " by Stapley that " in the ordinary plain common sense of this business "



8

it must be regarded as having contributed to the accident. I can only say that
I think it was and that there was no " sufficient separation of time, place
" or circumstance " between them to justify its being excluded. Dale's fault
was one of omission rather than commission, and it may often be impossible
to say that, if a man had done what he omitted to do, the accident would
certainly have been prevented. It is enough in my judgment if there is a
sufficiently high degree of probability that the accident would have been
prevented. I have already stated my view of the probabilities in this case,
and I think that it must lead to the conclusion that Dale's fault ought to
be regarded as having contributed to the accident.

Finally, it is necessary to apply the Law Reform (Contributory Negligence)
Act, 1945. Sellers J. reduced the damages by one half, holding both parties
equally to blame. Normally one would not disturb such an award, but
Sellers J. does not appear to have taken into account the fact that Stapley
deliberately and culpably entered the stope. By doing so it appears to me
that he contributed to the accident much more directly than Dale. The
Act directs that the damages " shall be reduced to such extent as the court
" thinks just and equitable having regard to the claimant's share in the
" responsibility for the damage". A Court must deal broadly with the
problem of apportionment and in considering what is just and equitable
must have regard to the blameworthiness of each party, but " the claimant's
" share in the responsibility for the damage " cannot, 1 think, be assessed with-
out considering the relative importance of his acts in causing the damage
apart from his blameworthiness. It may be that in this case Dale was not
much less to blame than Stapley, but Stapley's conduct in entering the stope
contributed more immediately to the accident than anything that Dale
did or failed to do. I agree with your Lordships that in all the circum-
stances it is proper in this case to reduce the damages by 80 per cent, and
to award 20 per cent, of the damages to the Appellant.

I have not dealt with the question whether at the time of the accident the
Respondents were in breach of Regulation 7 (3) of the Metalliferous Mines
Regulations because, whichever way that question were decided, it would not
in this case affect my view as to the amount by which the damages should be
reduced.

Lord Tucker

MY LORDS,

I need not repeat the facts as found by the learned Judge. It will, I
think, tend to simplify the case if these facts in relation to their causal effect
are considered irrespective of the accidental circumstance as to which of the
actors happens to be, or to be regarded as standing in the position of,
Plaintiff or Defendant in the action. Two men, named Stapley and Dale,
disobeyed the lawful instruction of their foreman Church " to bring down
" the roof " of the stope. It is common ground that this instruction meant
and was understood to mean that they were to bring it down by the use
of a pick or pinch bar or, if either of these methods failed or was impractic-
able, to bore holes and get the shot-firer to blast it down. Failing all these
methods their duty was to report the matter to Church. Having tried for
about half an hour to get the roof down with a pick they did not adopt
any of the other methods or report to Church. The result was the roof
remained insecure and dangerous and if anyone entered the stope in that
condition an accident was liable to occur. Someone did enter and an
accident did occur.

My Lords, I cannot avoid the conclusion that the failure of these men to
carry out their instructions was a contributory cause of the accident.

In The Volute ([1922] A.C. 129) Viscount Birkenhead at pages 144 and 145
said: " Upon the whole I think the question of contributory negligence must
" be dealt with somewhat broadly and upon common-sense principles as a
" jury would probably deal with it. And while no doubt, where a clear line



9

" can be drawn, the subsequent negligence is the only one to look to, there
" are cases in which the two acts come so closely together, and the second
" act of negligence is so much mixed up with the state of things brought
" about by the first act, that the party secondly negligent, while not held free
" from blame under the Bywell Castle rule, might, on the other hand,
" invoke the prior negligence as being part of the cause of the collision so
" as to make it a case of contribution ".

Towards the conclusion of his speech he observed: " The Volute, in the
" ordinary plain common sense of this business, having contributed to the
" accident, it would be right for your Lordships to hold, both vessels to
" blame for the collision ".

In this connection I venture to quote a passage from a recent judgment
of the Privy Council in the case of Sigurdson v. British Columbia Electric
Railway Co. (unreported, dated 21st July, 1952) because it was the judgment
of the Board including Lords Simon, Normand and Oaksey although it was
delivered by me. After referring to the above quoted passages from The
Volute, the judgment proceeded:—"This was an Admiralty case, but now
" that Common Law Courts have to apply the same principles to cases of
" collision on land it seems to their Lordships that this language will be
" found particularly suited to the exposition to a jury of the principles which
" they have to apply in these cases, and is much to be preferred to attempts
" to classify acts in relation to one another with reference to time or with
" regard to the knowledge of one party at a particular moment of the
" negligence of the other party and his appreciation of the resulting danger
" and by such tests to create categories in some of which one party is solely
" liable and others in which both parties are liable. Time and knowledge
" may often be decisive factors but it is for the jury or other tribunal of fact
" to decide whether in any particular case the existence of one of these
" factors results or does not result in the ascertainment of that clear line to
" which Viscount Birkenhead referred—moreover, their Lordships do not
" read him as intending to lay down that the existence of ' subsequent'
" negligence will alone enable that clear line to be found ".

My Lords, in the present case the negligence of Stanley in going into the
stope seems to me to be " so mixed up with " the negligence of Dale and
himself in not obeying their instructions that it cannot be regarded as an
independent act unrelated to and distinct from their disobedience so as to
make it the sole " real " or " effective " cause of the accident. The decision
in these cases is one of fact and degree, and I see no reason for rejecting
the conclusion arrived at by Mr. Justice Sellers on this issue. If your
Lordships were compelled as a matter of law to hold otherwise it would
appear that no relief is afforded by the Law Reform (Contributory Negli-
gence) Act, 1945. in a great number of cases under the Factories Act where
employers are in breach of their obligation to fence but an operative has
been negligent in working at an unfenced machine.

My Lords, so far as causation is in question it can make no difference
whether Stapley or Dale was the person injured, nor can it matter whether
Stapley was one of two or one of a hundred men who acted in disobedience
to the order. Each of them was guilty of a separate and independent act
of negligence and breach of statutory duty which was a contributory cause
of the accident. It is admitted that in acting as he did Dale was in breach
of Regulations 15 (1) and 15 (10). On the facts of this case these breaches
clearly also constituted negligence at common law for which the Respondents
are responsible. As to the proper proportion of responsibility to be attributed
to them, the learned Judge does not appear to me to have given sufficient
weight to the important fact that it was Stapley alone who entered the
dangerous stope. Dale and Stapley were no doubt equally at fault up to
that stage, but then Stapley alone acted in contravention of Regulation 7 (3)
by entering and working in the stope which had not been made secure. He
must, I think, consequently bear a much larger share of responsibility than
the Respondents. I agree to the proposed proportions of 80 per cent, and
20 per cent.

10

On this view of the case I have not found it necessary to decide whether
the Respondents were in breach of their duty under Section 23 of the Metal-
liferous Mines Regulations Act, 1872, and Regulation 7 (3) of the General
Regulations made under that Act, because on any view it would not affect
my conclusion on liability or the proportions of responsibility indicated above.

I desire to reserve for future consideration, if and when it arises, whether
the result would be different if Dale's acts or omissions had not amounted
to negligence but had only been breaches of statutory duties imposed upon
him personally.

For the reasons stated I would allow the appeal and assess the damages
recoverable by the Appellant at the sum of £605. I agree to the Order
proposed as to costs.

Lord Asquith of Bishopstone

MY LORDS,

I agree that if, as the majority of your Lordships hold, contributory
negligence by the Company is established and therefore a question of
apportionment arises, the Plaintiff should not recover more than 20 per cent,
of the damage. I find myself, however, unfortunately in disagreement with
the majority of your Lordships in so far as you hold that any contributory
negligence has been proved: and wish to record, briefly and with respect,
my reasons for concurring with the conclusions on this issue of my noble
and learned friend Lord Porter.

There was in this case, in my opinion, no breach by the Company, by
itself or any servant or agent, of the Metalliferous Mines Regulations
(S.R. & O. 1938 No. 630) made under section 86 of the Coal Mines Act, 1911.
The Company carried out its obligations under Regulation 7 (3) to the
letter, if the first line and a half of that Regulation be read with the last
two and a half lines. If the Company detail X and Y to repair a defect in the
walls or roof to restore safety, they cannot possibly, it seems to me, be told
that they are breaking the regulation by permitting the repairers to work
in a working place which, pending the completion of the repair, is insecure.
It was further suggested that the Company were guilty of a breach of
Regulation 15 (1). This is a regulation binding on the employee only. It
binds him to comply with " such directions concerning safety and discipline
" as may be given to him by those in authority over him ". It was, how-
ever, argued that a breach of this regulation by the employee was a breach
by the mineowner, on the principle of " Respondeat Superior", which is
now disencumbered from the fetters of the doctrine of common employ-
ment. This argument, in my view, also fails, so far as it is based on the
Regulations: since Regulation 14 (1) defines the extent to which the mine-
owners are to be liable for the failure of their employees to carry out the
provisions of the Regulations and provides that the Company need only
" enforce the observance thereof" " to the best of their power ". This
they clearly did, on the facts of the present case.

The Regulations were, in my view, complied with, and I only mention
them because a very large percentage of the argument was devoted to their
supposed breach and its consequences.

But, it is said, the matter does not rest on the Regulations. Over and
above them, and unimpaired by them, there is the common law liability
of the employers to use all due care for the safety of their employees: this
duty, the argument runs, was infringed when Dale, an employee of the
owners, acting within the course of his employment, failed to carry out
the instructions of Church, the foreman: and this, it is said, was a contribu-
tory cause of Stapley's death.

That Dale was in breach of his duty seems to me undeniable. He, like
Stapley, was told (1) to bring down the roof of the dangerous stope ; (2) not
to work on the stope till the roof had been brought down. Stapley violated
both of these injunctions. Dale violated only the first. Of the three



11

well recognised methods of bringing the roof down, one—that of fetching
the " shot-firer " and getting it blasted down—he failed to employ, and was
a consenting party to an arrangement whereby each of them, he and Stapley,
should proceed with their respective normal tasks, without that method
having been first resorted to.

Let it be assumed, therefore, that Dale was guilty of a negligent act
committed within the course of his employment. Does it follow, as the
night does the day, that Dale's omission, the negligence of Stapley's act
being undisputed, was contributory negligence in part causing the mishap to
Stapley?

In my view it does not. The Court of Appeal has so held. Like my
noble friend, Lord Porter, I am not confident that I can wholeheartedly
subscribe to the ground on which Lord Justice Birkett based his conclusion
in this sense. He seems to say that since Stapley's negligent act in resuming
work at the dangerous stope with the roof still intact was sufficient in itself
to cause the disaster, without assistance from any positive negligent act by
Dale, ergo the Court need not take into account the fact, that if Dale had
done his duty, the consequences of Stapley's breach of duty might have been
averted; and that consequently Dale's omission was not a contributory
cause of the accident.

While I feel, with great respect, doubt about the validity of this reason-
ing, I consider that the conclusion of the Lords Justices can and should be
supported on a different ground.

Courts of Law must accept the fact that the philosophic doctrine of
causation and the juridical doctrine of responsibility for the consequences
of a negligent act are not congruent. To a philosopher—a term which I
use in no disparaging sense, for what is a philosopher but one who, inter alia,
reasons severely and with precision?—to a philosopher, the whole legal
doctrine of responsibility must seem anomalous. To him, if event C could
not occur unless each of two previous events—A and B—had preceded it,
it would be unmeaning to say that A was more responsible for the occur-
rence of C than was B, or that B was more responsible for its occurrence
than was A. The whole modern doctrine of contributory negligence, however,
proceeds on the contrary assumption. If not there would be no question
of apportionment. But the fission between law and strict logic goes
deeper than that. For I am persuaded that it is still part of the law of
this country that two causes may both be necessary pre-conditions of a
particular result—damage to X—yet the one may, if the facts justify that
conclusion, be treated as the real, substantial, direct or effective cause, and
the other dismissed as at best a causa sine qua non and ignored for purposes
of legal liability. This is a doctrine affirmed by your Lordships' House:
and not, in my view, displaced by the Law Reform (Contributory Negligence)
Act, 1945. On the contrary, the words " as the result of " in section 1 of that
Statute impliedly preserve the doctrine: the assertion of which your Lordships
have more than once coupled with an admonition that if the conditions for its
application occur, a judge sitting alone should assume .the mantle and the
mentality of a jury, and should take what is called a " broad commonsense
view ", in deciding whether one of the causes (there may be two or twenty) is
the " real " cause.

Approaching the matter from this angle, I have hardly any doubt that
a jury would have said that the real cause of this mishap was Stapley's
resumption of work at the perilous place without the roof having been
brought down. While no doubt they would have realised that if Dale had
acted in conformity with his duty this result might have been averted—
it is a pure speculation whether it would or not—yet I am satisfied that
they would have said Stapley's act was the real and substantial cause. His
resumption of work, in the circumstances, was the crossing of the legal
Rubicon. For that reason I agree with my noble friend Lord Porter that
the appeal should be dismissed. But as a majority of your Lordships are
of a contrary opinion, I repeat that I think 20 per cent, is a reasonable
percentage for the widow to recover.




(21002) Wt. 8218—43 35 7/53 D.L./PA.19