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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 3,  2 QB 55
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COURT OF APPEAL.
B e f o r e :
LORD JUSTICE SINGLETON
LORD JUSTICE BIRKETT.
|NATIONAL COAL BOARD.
MR G.R. HINCHCLIFFE. , K.C.. and MR R. WITHERS PAYNE (instructed by Messrs Raley & Pratt, Barnsley) appeared on behalf of the Plaintiff (Respondent).
Crown Copyright ©
LORD JUSTICE SOMERVELL: This is an appeal by the National Coal Board against a judgment of Mr Justice Hallett at Leeds Assizes on the 15th November, 1950. It was a claim by Mr Fred Jones who sustained very serious injuries and was blinded by an explosion at Darfield Main Colliery on the 24th August, 1949. Mr Jones was at that time engaged as chargehand in making a stone drift. The procedure in making such a drift is of course that the head of the passage is blasted from time to time. The procedure (which is very fully and, if I may say so, clearly described by the learned Judge, but it is necessary that I should summarise it) is, first of all, to drill in the stone face a number of holes. We have a plan which shows some thirteen holes drilled in the face in question. That is done by the Plaintiff and his mate or those working with him, and there is obviously no danger at this stage. When the explosives come on the scene the person in charge dealing with them was known as a shotfirer, in this case a Mr Cobb, who was a deputy shotfirer, but nothing turns on that. The holes are first tested, which is called stemming, to see whether there may be a crack or a break either at the side or at the bottom. In this case those holes were tested and found to be all right. I will take one hole for a moment and assume that it is desired to explode a charge in that hole. The explosive cartridges are first placed in it. They contain explosives which go off not by heat but by detonation, so a detonator is placed at the end which explodes when it is heated. The heat is conveyed to the detonator by electricity. There are leads coming from the detonator and no doubt at an appropriate place in it there is a piece of wire which gets red hot or white hot when the 60 volt current is passed through it. The source of the electrical power is a box (there was one before the learned Judge) which I gather to be about 18" by 18" by 18". From that box what I will call cables go from where it is up to the face, on which, to use the expression normally used, the shots are to be fired. The cables are connected to the leads to the detonator. To cause the explosion two things are done: A button on the exploder box which is a fairly heavy spring button is pressed down, and a key which also turns against a spring is turned, when the circuit is complete and the explosion takes place. On the day in question (and this part of the evidence I do not think is disputed) the Plaintiff with one or more of those working under him had drilled thirteen holes, and Mr Cobb appeared. Mr Cobb seems to have assumed in the first instance that it would be desired to explode at the same time three or four of those holes. While the Plaintiff was doing something else Mr Cobb was, I think, connecting those holes one with the other. The Plaintiff was the person to decide how many holes should be blown at any given time. He decided that he only wanted one hole blown on the first occasion, which was No. 5, the bottom hole. He wanted to see what that did before he decided what others should be exploded. So the leads on Nos. 2, 4 and 3 were disconnected and coiled and put in the normal place. There was some conflict of evidence as to whether it was good practice to do as had been done here, namely, to put the explosives into all these holes at once, or whether they should only have put the explosive into the one which it was intended they should explode, but I do not think anything really turns on that. Everything having been made ready at the drift road face the Plaintiff and Mr Cobb and Mr Colman, who was working with the Plaintiff, retired down the stone drift. The Plaintiff and Mr Cobb retired into a little refuge recess some 26 yards from the face.
I dare say there was not room for three people in it. At any rate, Mr Colman went on down the drift until it joined what is called a road, which was running at a slightly different gradient and possibly in a slightly different direction. He joined the road and got round the corner where he admittedly was safe. Mr Cobb then went through the necessary movements and the shot was fired. After that according to the Plaintiff's evidence, he left Mr Cobb, Mr Cobb remaining behind in the recess. The Plaintiff waited a minute and then went up the drift and he said "which we had always done with the shotfirer". In this case Mr Cobb did not go with him. The purpose was, he says, to get the cable free from the debris which the first shotfiring had caused. 'When the explosion takes place no doubt the leads are blown away and are often, as this answer indicates, under the debris which it dislodges from the stone face. Mr Jones said:
"When I got to the drift face I was getting the shotfiring cable from out of the stone that the first shot had fired. Then I remember no more".
It is clear, and indeed it is common ground, that what happened very shortly after that was that the three shots, 2, 3 and 4, or rather the explosives in those holes, exploded simultaneously, and it was that explosion, the Plaintiff being more or less right up against the face of the drift, which blinded him and did the other damage.
The Plaintiff called Mr Colman, who was with him at the time, and this is the only evidence which he put before the Court as to what he was doing, and Mr Colman said that when he said "What happened Fred?" the Plaintiff said that he had two shots coupled up and was coupling the third one when the bang went off. In those circumstances the Plaintiff brought an action and claimed that the accident was caused by the negligence and breach of statutory duty of the Defendants. He said that the happening of the accident is itself sufficient evidence of negligence, and he further alleged that the shotfirer, Cobb, failed after the first shot being fired to make a careful examination of the drift face to see that it was safe. He negligently permitted the Plaintiff to go to the drift face before any examination had been made after the first shot. Further that in breach of clause 2(h) he "did not himself couple up the cable to the detonator wires for the second shot or shots, and/or did not so couple them before coupling the cable to the firing apparatus, and/or did not before coupling the cable to the firing apparatus see that the Plaintiff, who was in the vicinity, had taken proper shelter". Then it is said that he failed before firing the second shot to see that the Plaintiff had taken proper shelter. It will be seen from those allegations that although it is pleaded generally that the circumstances of the accident indicate negligence, the case particularised is that the explosion which caused the damage was the result of a shot being fired by Mr Cobb, and on the Plaintiff's own evidence that he alone went up to the face, it would seem to follow inevitably that he must himself have connected the cables with the leads of two detonators and connected the two end detonators with the middle one when the explosion occurred.
I will say now so as not to come back to it, first of all, that there are of course regulations which have been worked out over many years with a view to avoiding accidents happening and explosions. It seems plain that it is not unusual when the shotfirer is there for him to get help in fastening up connections; but it is his responsibility, and those matters should not be dealt with or interfered with except when he is on the spot, The defence was in effect contributory negligence based upon the regulations which are set out in detail, that the Plaintiff failed to take reasonable care for his own safety or alternatively that in coupling the cable to the detonator wires the Plaintiff took upon himself the risk of injury, and so on. That undoubtedly was the main apparent issue on the facts. The learned Judge, as I say, after a very clear exposition of the mechanics of the matter, deals with the evidence, and so far as the evidence of Mr Colman was concerned, who was called for the Plaintiff, he said that a minute or two after the explosion he went up towards the drift face, very properly as there was more work to be done and they were going to fire two or three more shots. He said he waited about three minutes. He said he saw Mr Cobb, he seemed to be coming out of the manhole, and that then when he went ten or twelve steps further on he heard the debris flying and he and Mr Cobb went to the assistance of the man, Mr Cobb's evidence was that the Plaintiff had gone out of the recess in front of him. He said that he did not know where he was going, but I think he must have assumed he was going to the face. He remained for a minute or two, as he says, in this recess. After the Plaintiff had left he took the key, which I have spoken of as necessary to fire the shot, out of the case, put it in his pocket, uncoupled the terminals and proceeded up the drift. It was while he was going up the drift — he said he saw Mr Colman pass him, he was two or three yards behind — that this bang went. Of course, on that evidence the exploder in the recess could have had nothing to do with the explosion.
Perhaps before I refer to the learned Judge's findings on the evidence as to that I ought to refer to the expert evidence called by both sides. The Plaintiff called an expert and I think I am summarising it rightly when I say that the burden of his evidence was that this could only have happened by the firing of the shot by the apparatus; it must have happened, in other words, by electrical means and the circuit must have been connected up and completed. The Defendants called a Dr Willett, who was an expert well qualified, and his evidence I think is of importance in its negative rather than its positive application. There had been, though it is not before the Court as one would expect, an enquiry which was no doubt a very full enquiry. A number of people were on it of knowledge and experience. Dr Willett did not himself give evidence at that enquiry, but it came out in cross-examination that he had been sent a report as to that enquiry. He says that questions were considered as to whether it was possible that any other electrical equipment in the pit could have brought about this explosion. I think it is a fair assumption, and indeed it is clear from the general burden of his evidence, that he directed his mind to the question which other people no doubt had directed their minds to, as to how this accident could have happened or could it have happened otherwise than the Plaintiff in his Statement of Claim suggests. Dr Willett produced, I do not say a theory of how the accident could have happened because I think when one examines it he cannot be regarded as doing that. He did address his mind to the question as to whether an explosion in one hole could ever bring about an explosion or indeed any effect in another hole. He said the only possible way that that could happen was, first of all, if there was a break or crack or hole in the drift stone from the first hole either to or in the direction of or in the immediate proximity of the second hole — I suppose the explosion might blow a little bit away — and that the heat from the explosion of the first hole might then start combustion, I dare say a rather slow smouldering combustion, in the explosive in the second hole. He said he had known that happen, but he had never known combustion so started lead to an explosion in the second hole, that is to say, get right back to the detonator and produce sufficient heat there to explode the detonator, presumably enough of the other explosive not having been burned to cause an explosion. That regarded, as I say, positively as to how the accident could have happened does not seem to me to take one any way because you would have to assume that there were breaks to all these three holes, that in all of them combustion took place, and that simultaneously something happened which had never happened before, namely, combustion leading to explosion. That seems to me wholly impossible. But I think the importance of Dr Willett's evidence is that the only explanation or the only circumstances in which he could imagine an explosion from one hole affecting another hole, could not have caused what happened here. This supports the conclusion that the explosion was caused in the way the Plaintiff suggests.
The learned Judge who heard the evidence of Mr Cobb, and was struck by. him, said this after reciting the evidence, which I have summarised:
"It seems to me that on that evidence it is well nigh impossible that Cobb fired the shots which caused the accident by operating the exploder".
That may of course merely mean, if one accepts that evidence, then Mr Cobb could not have fired the explosive. On the next page he says in considering whether he should accept Mr Cobb's evidence: So far from having strong evidence the other way, as I have said, the only evidence I have got at all, beyond the bare fact of the second explosion, is the evidence of Colman, which seems to me to tally with Cobb's evidence, not to establish an operation of the exploder by Cobb, but, on the contrary, for various reasons which I will indicate, an explosion caused by something other than an operation of the exploder. In my view, therefore, so far as the onus is upon the Plaintiff to establish affirmatively that the explosion was caused in the way which is pleaded in the Statement of Claim, the Plaintiff fails". Then he concludes his judgment at the bottom of page 10 in this way. He considers the theory which Dr Willett put forward and says:
"I have now arrived at this position. I am far from satisfied that the accident was occasioned in the way alleged in the Statement of Claim. I am equally far from satisfied that the accident was occasioned in the only other way which the Defendants suggest, namely the way thought out, but by no means enthusiastically advocated by Dr Willett. To my mind no explanation has been produced by either side that satisfies me as to how this lamentable accident was occasioned. That, of course, is an unsatisfactory position, but it is the position in which I am placed; and the final question I have to ask myself is: What is the legal result?".
(Adjourned for a short time).
LORD JUSTICE SOMERVELL: In the remainder of his judgment the learned Judge refers to various authorities dealing with what is commonly expressed in the latin phrase res ipsa loquitur. He refers to the well-known case of Scott v. London and St. Katherine's Dock Company. He also refers to two cases which Mr Hylton-Foster relied on in this Court, Duncan v. Woods, 1946, Appeal Cases, page 401, and what was said in that case, which I will refer to in a moment, and Turner v. The National Coal Board. Those cases were cases which Mr Hylton-Foster relied on as indicating that in certain circumstances a Defendant may discharge the onus which is on him having regard to the application of this so-called principle of res ipsa loquitur to the facts of the case, although he was not able to put forward an explanation as to how the accident happened. That is undoubtedly a conclusion which may be cone to if the facts justify it. As the learned Judge said each case must necessarily depend on its own facts, and after considering those authorities, to which he refers, he repeats the conclusion to which he had come, which I have read. Of course, that involves an examination of what the Defendants did prove on the basis — and this, of course, is on the assumption of the learned Judge that he did not accept the case as put forward on behalf of the Plaintiff — that the accident did not happen by a second shot fired by Mr Cobb. One has to consider the evidence of Dr Willett. I think there is great force in Mr Hylton-Foster's submission that the conclusion on considering all the evidence, having regard to the expert called by the Plaintiff and the expert called by the Defendants, is, that if the accident was not caused as the Plaintiff suggested, it must have been some cause so unprecedented that the Defendants could not be expected to have taken steps to avoid its happening, I said I would refer to Duncan v. Woods. I think it is always worth remembering in considering what was said in that case that the learned Law Lords were dealing with a case which was put forward against an individual Defendant. They were not dealing with what is the more normal res ipsa loquitur case, a case brought against some undertaking which is responsible prima facie for everything that takes place in the premises which it occupies.
Lord Simonds said that the application of the principle of res ipsa loquitur is to do no more than shift the burden of proof, At page 439 he said:
"A prima facie case is assumed to be made out which throws upon him the task of proving that he was not negligent. This does not mean that he must prove how and why the accident happened: it is sufficient is he satisfied the Court that he personally was not negligent. It may well be that the Court will he more easily satisfied of this fact if a plausible explanation which attributes the accident to some other cause is put forward on his behalf; but this is only a factor in the consideration of the probabilities. The accident nay remain inexplicable, or at least no satisfactory explanation other than his negligence may be offered: yet, if the Court is satisfied by his evidence that he was not negligent, the Plaintiff's case must fail".
A consideration of Mr Hylton-Foster's first submission, namely, that the Defendants, having regard to their evidence, have discharged the burden of saying that the accident was not caused by their negligence, or, rather, that it could not properly be concluded that it was caused by their negligence, led us all in the course of the argument to an examination of the learned Judge's finding on the case as put forward by the Plaintiff. The question whether we could properly come to a different conclusion is I think one of some difficulty. The learned Judge saw and heard Mr Cobb and Mr Colman on the matter. I think it is right to emphasise that in his concluding words he did not find affirmatively that the accident had not so happened, though there were one or two earlier sentences which rather indicated, at any rate, that that was the inference in his mind. In the concluding passage, treating the onus as on the Plaintiff, he was not satisfied that it had been discharged.
Having had the advantage in this Court of further argument and a further examination of the evidence and the circumstances I have come to the conclusion — and having come to the conclusion this Court must, I think, act upon it — that the only possible explanation of what happened is that the explosion was caused by an electric circuit, and it is clear that the only electric circuit was the one to which I have referred. I think, with respect, that the learned Judge may possibly not have had sufficiently in mind the inference that as it seems to me must follow from the fact that all these three shots went off together. That seems to me capable of leading only to the conclusion that it was the electrical circuit which sent them off. Each case has to be decided on its merits. On the evidence on both sides it seems to me there is no escape from that conclusion. It is reinforced by that part of Mr Colman's evidence, to which I have referred, and he was called by the Plaintiff. The Plaintiff naturally enough did not remember what he said, but Mr Colman's evidence was that he said that he had two shots coupled up and he was coupling up the third one when the bang went off. That also I think leads to what I may call an electrical cause. If that is right I do not think it is necessary to speculate or particularise how it did happen, but when the Plaintiff, as he must have done, had completed or was completing the circuit, the electrical exploder must have been operated. It was suggested that it might have been arranged between Mr Cobb and the Plaintiff, though the Plaintiff did not say this, that the Plaintiff should make the connections. Mr Cobb on this view must have wrongly thought that the Plaintiff must have made the connection and got back to some place of safety. On the other hand, it is possible that Mr Cobb was making some test on the machine, not imagining the connection had been made. I think it is unnecessary to speculate or come to a definite conclusion as to how it precisely happened because on the basis that it was caused by the electrical connection there was negligence on the part of Mr Cobb and also of the Plaintiff. It is quite plain from the regulations that such a thing never ought to have happened. Mr Cobb ought to have been at the face according to the regulations. The Plaintiff ought not to have been making the connection on any view except under the express supervision of Mr Cobb. Mr Cobb ought to have taken steps to see that nothing was done with the exploder while that was happening. But, of course, one has to consider the matter to some extent in detail in order to solve the problem which then arises as to the quantum of blame to be attached to the Plaintiff. On that matter on the evidence the learned Judge expressed his view — and our decision has led us to the necessity of coming to a conclusion upon it — that the major part of the blame must fall on Mr Cobb. He was the shotfirer. The next operation was going to mean another shot and I think the main blame must fall on him. Reconstructing so far as one can (and to some extent as I say one must for the purpose of deciding this issue) the most probable explanation is that the Plaintiff, having reached the stone face and finding perhaps that there was but little debris to clear away, set about preparing for what was to be the next operation, namely, the firing of two or three further shots. Mr Cobb not having arrived he might think: "Well, I may as well get on with it", having no reason to anticipate that anything would happen at the other end or that Mr Cobb would be doing anything except uncoupling the exploder and following up the Plaintiff. On the other hand, it is very important that these regulations should be observed and he certainly — and I do not think this is disputed — should not have been doing what on this basis he must have been doing, connecting up the wires without having the shotfirer there in order to supervise what he was doing. Doing the best I can I think that the damages, as found by the learned Judge — and that figure is not disputed if the Defendants are one hundred per cent to blame — should be reduced by 25 per cent. In my judgment, therefore, the appeal should be allowed on that basis.
LORD JUSTICE SINGLETON: The learned Judge who had to determine this case was faced with very considerable difficulty, and the difficulty in the way of this Court is no less. Several men, including the Plaintiff, were working down a pit and they were engaged in driving a drift through stone. When they are working in stone there is perhaps less likelihood of an explosion than there is when that kind of work is done through coal or other material. Explosive charges had to be put into the stone and exploded at the right time. One charge had been exploded by the action of the authorised shotfirer, a man named Cobb. At that time all those immediately engaged — Cobb, the Plaintiff and a man called Colman — had taken cover some little way away from where the explosion took place. After that shot had been fired the Plaintiff went to the face — that is, to the place in which the charge had been: he said it was in the ordinary course that he went there — to clear up the results of the explosion. While he was at the face there was another explosion, which indeed was the explosion of three charges, and he received serious injuries. The question before the Court was: Who caused, or what was the cause of, that second explosion?
The case for the Plaintiff as pleaded was that that explosion was the negligent act of the authorised shotfirer, Cobb, and further that his action was in breach of the regulations; and the Plaintiff claimed damages. The Defendants put up two answers, perhaps three. They said, in the first place, "There was no negligence on our part: our shotfirer did not fire that second shot." They said, further, that if he did, and if he was negligent, there was negligence on the part of the Plaintiff himself in that he coupled up the cable to the detonator wires, a thing which he ought not to have done. Furthermore, the Plaintiff said:
"In any event that which took place was something of a kind which ought not to take place and which does not take place if proper precautions are taken, and you, the Defendants, were in charge of the whole operation going on in that mine, and if the matter is left unexplained you are liable in damages";
to which the Defendants answered:
"Not so: we shall show",
and after trial they said:
"we have shown", "that here there was something of an unusual character, something totally unexpected and something which happened without any negligence on our part, and there being no negligence on our part we are not responsible".
The learned Judge had before him the Plaintiff, the man Colman and the authorised shotfirer, Cobb, who were the only people anywhere near where this explosion took place and who were the only people who could have had anything to do with it, so it was said. The learned Judge having considered the evidence for the Plaintiff, which was not very helpful to him because the Plaintiff remembered little, proceeded to consider the evidence of Colman. He was of the opinion that Colman was a very good witness. Then he considered the evidence of the shotfirer, Cobb, and he said:
"It seems to me that on that evidence it is well nigh impossible that Cobb fired the shots which caused the accident by operating the exploder".
And later in his Judgment he said:
"I am far from satisfied that the accident was occasioned in the way alleged in the Statement of Claim. I am equally far from satisfied that the accident was occasioned in the only other way which the Defendants suggest, namely, the way thought out, but by no means enthusiastically advocated by Dr Willett."
The result, as the learned Judge said, was that the position was unsatisfactory.
He then went on to consider the case put forward by the Plaintiff that as this was an unexplained accident and as everything was under the control of the Defendants, the Plaintiff was entitled to succeed upon the basis of the maxim res ipsa loquitur. Really the Judge was saying:
"I do not know how this accident happened. I do not know what was the cause of it".
He said that Cobb, the shotfirer, was a good witness and that his evidence and that of Colman was in agreement. He did not find expressly that Cobb did not fire the shots: the position was that he did not know.
If the true conclusion was that Cobb did not fire the shot which caused the damage, I am inclined to think that the Plaintiff would have been in very great difficulty in view of the remainder of the evidence, for though it could have been said that there was something unexplained in one sense, yet there is very considerable force in the submission put forward by Mr Hylton-Foster and by Dr Charlesworth that, on the evidence, if it is accepted, this was something which was unlikely to happen: the Defendants caused careful enquiry to be made afterwards and at the end of it all there was no cause which presented itself as feasible to the learned Judge. Thereupon as Dr Charlesworth submitted, the Defendants were entitled to say if something so unusual as that happened, how could there be any duty upon the Defendants to guard against it? Furthermore, they submitted that every witness who was anywhere near had been called, and if it could be said that the learned Judge had accepted their evidence, and in particular that he had accepted the evidence of Cobb that he did not fire the shot, then the evidence was sufficient to show that there was no negligence on their part and that the maxim res ipsa loquitur did not apply.
The learned Judge was, of course, entitled to form his view on the evidence, and I felt in the course of the argument yesterday and this morning that it was difficult for this Court to draw a conclusion contrary to the learned Judge's finding of fact if he, having seen and heard the witnesses, had come to a definite finding that the shot which caused the damage was not fired by the authorised shotfirer. On the other hand, Order 58, Rule 1, shows that we, sitting here, are to hear appeals by way of re-hearing; and Order 50, Rule 4, expressly provides that
"The Court of Appeal shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been made, and to make such further or other order as the case may require."
I am impressed, having considered this case with care, by the argument which has been addressed to the Court that it is almost, if not quite, impossible to think that the explosion of the three charges can have been simultaneous unless the exploder machine was used. The learned Judge was not satisfied affirmatively that that had taken place, but when the evidence is examined closely it does become more and more difficult the longer you look at it to see that there can be any other explanation of this accident. There was a system adopted in the mine; the regulations were followed, as far as one knows; but at this particular time something happened which I think can only be explained by the wrongful operation of the exploder. I see no other way in which this accident can be explained. The learned Judge was not satisfied: he gave judgment for the Plaintiff applying the maxim res ipsa loquitur. After most careful consideration, I think that this Court ought to say that, on the evidence, the true cause of the accident was the operation by the shotfirer, Cobb, of the exploder at a time when he ought not to have put it in action.
That involves something more, because unless there had been a connection made at the face, or near the face, by the Plaintiff, the action of the shotfirer would not have caused the explosion. It follows that both Cobb and the Plaintiff were responsible for this accident and for the damage which resulted. The learned Judge did not have to consider the apportionment of liability, but he did say in passing:
"Accordingly on that view of the case contributory negligence would, as Mr Hinchliffe concedes, be established against the Plaintiff and some reduction would have to be made from any award in his favour, although I accept Mr Hinchliffe's contention that in apportioning the negligence on that view of the case by far the larger share ought to be attributed to the shotfirer, Cobb."
That is my view. I think it is right that in this case the Plaintiff, the Respondent to the appeal, should bear some proportion of the responsibility, and I agree with the apportionment my Lord has suggested, that the Defendants ought to be held responsible for 75 per cent of the damages and the Plaintiff for 25 per cent.
LORD JUSTICE BIRKETT: I agree most fully with the two Judgments which have just been delivered. It is perfectly manifest that at this stage I can add nothing that is new to the Judgments which have been delivered, but as we are differing from the learned Judge below I would just like to add a sentence or two, and they will only be a sentence or two. I should like to say for myself that this Judgment of Mr Justice Hallett's which we have been considering was, if I may say so with all respect, a Judgment of the greatest lucidity, and it showed a complete comprehension of all the facts to be considered, including some that were of a highly technical nature; and the difficulty, therefore, of differing from the learned Judge has been expressed in the Judgment of Lord Justice Singleton, with which I most fully agree.
But the facts which I would just like to mention are these. From the very earliest opening of this case in this Court the fact with which I was impressed, which more and more as the appeal proceeded took on a deeper significance, was this; that whatever else was in controversy (and many things were) this was not in controversy, that these three shots that did this damage to the Plaintiff all went off together. Now it is to be remembered that evidence was given before the learned Judge of the most complete enquiries which had been made into the source of this explosion. Dr Willett when giving evidence told the Court that there had been an inquiry on the 14th September, 1949. He told the Judge that many theories were there put forward and the whole matter, he said, was considered from the scientific point of view. In answer to this question by the learned Judge himself, "As far as you are concerned, you agree that the possibility of electric current from a source other than the exploder operated by Cobb is negative?", Dr Willett said "Yes". So the significant fact that these three shots went off together seems to me to lead to a complete disposal of all other theories about flash back and all the rest of it and to point irresistibly to the conclusion that these three shots all went off together simply because they were electrically fired. That firing, done electrically, could have been done by means of the exploder, and the only exploder which comes into this case at all is the exploder controlled by Mr Cobb.
It does seem to me, therefore, that upon a review of the whole of this case, the only explanation which commends itself to the mind is the explanation that this unfortunate accident was indeed caused by the firing of those shots by means of Cobb's exploder. I do not really want to go into the detail of the case, though I had considered some further detail. I think the evidence of Cobb himself about what happened in that refuge and the passage of time is very significant too. My Lord Lord Justice Somervell spoke about a possibility that there was an arrangement between Cobb and the injured man Jones. It seems very likely that there was, or at least that there might have been. But it was a quite extraordinary thing, I think, that this injured man, Jones, should leave the refuge and travel all the way to the top of the drift and that inside the refuge was Cobb, and when he was cross-examined by Mr Hinchliffe in the Court, first of all, as to the passage of time, he did not agree with Mr Hinchliffe's estimate, but when he was asked: "What were you doing", he used the word "nothing", meaning: "I was doing nothing".
Upon that part of the case there is a lot that causes one to think, but it is enough for my purpose to say I agree with the Judgments which have been delivered on the source of this injury.
With regard to the contributory negligence of the Plaintiff, I agree too. There was evidence which has been debated at some length in this Court dealing with the matter, and I will not add to it except to say I agree with the proportions which have already been announced and that the Plaintiff should be liable for 25 per cent.
I therefore agree with both the Judgments which have been delivered.
MR HYLTON-FOSTER: Will your Lordships allow the appeal with costs, substituting for the existing Judgment a Judgment in the Plaintiff's favour for £6,700. 4s. 5d.?
LORD JUSTICE SOMERVELL: Do you agree with that, Mr Hinchliffe?
MR HINCHLIFFE: I did not think my learned friend would ask for costs in the circumstances. I have in fact succeeded in the case that I presented before the learned trial Judge.
LORD JUSTICE SINGLETON: Are you asking that they should be apportioned in some way?
MR HINCHLIFFE: Inevitably that would have been so on the case I presented.
LORD JUSTICE SOMERVELL: You did put forward two cases, did you not? There may be a question whether there should be full costs here. Mr Hylton-Foster had to come here to get the figure reduced.
MR HINCHLIFFE: My learned friend came here to get Judgment reversed and Judgment entered for him.
LORD JUSTICE SOMERVELL: That is not uncommon. An Appellant comes here and says: "First of all, I would like A, but if I cannot succeed on that I ask for B". He gets his full costs because he has to come here to get relief. Sometimes if A has taken up a considerable amount of time, there may be a different Order.
LORD JUSTICE SINGLITON: He had to come to get his reduction, and in most cases we have allowed costs on that basis.
LORD JUSTICE SOMERVELL: I do not know, Mr Hylton-Foster, whether you have got anything you would like to say?
MR HYLTON-FOSTER: I do not want to waste too much sympathy on my learned friend, because he is a powerful and rich Union and I am a public Board, and if I am mulcted in costs the public has to pay. I submit that we should not all be here unless my learned friend's client had said what this Court believes now to be untrue in the Court below. It turns upon the question whether the learned Judge would ever have accepted the evidence in the Court below of the shotfirer had the Plaintiff not himself sworn that he had not wired up the connection.
LORD JUSTICE SINGLETON: On the other hand, it is an unusual circumstance in which your partial success comes to you through your casting over a witness who you asked the Judge to believe.
MR HYLTON-FOSTER: May I say it is the Judgment which I appealed against which puts me into that position. With great respect, it is the learned Judge who would not have that case as presented to him. I could not get this result without coming here.
LORD JUSTICE SOMERVELL: The only question is this. Take a case which is fought out in a day. The successful party gets his costs although he has not got all he asks for and a certain amount of time has been spent in considering his argument which failed. On the other hand, if a case lasted twenty days and the point on which he succeeded had taken only one day, he would not get his full costs.
MR HYLTON-FOSTER: If it is to be commuted on a time basis rather like a taximeter principle, might I remind your Lordship that to present the case on which I have succeeded I had to read the Judgment and the Shorthand Notes, which occupied until 3.30 yesterday. That was the basic material. I have not added to it by making my primary submission.
LORD JUSTICE SOMERVELL: Well, it took a little time. We appreciate the point, but we think in this case the Appellant ought to have his costs.
MR HINCHLIFFE: If your Lordship pleases.