BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

United Kingdom House of Lords Decisions

You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Herd v Weardale Steel Coal & Coke Co Ltd [1914] UKHL 2 (30 June 1914)
Cite as: [1915] AC 67, [1914] UKHL 2

[New search] [Printable version] [Buy ICLR report: [1915] AC 67] [Help]


BAILII Citation Number: [1914] UKHL 2


Date: 30 June 1914

- v -



    VISCOUNT HALDANE L.C. My Lords, by the law of this country no man can be restrained of his liberty without authority in law. That is a proposition the maintenance of which is of great importance; but at the same time it is a proposition which must be read in relation to other propositions which are equally important. If a man chooses to go into a dangerous place at the bottom of a quarry or the bottom of a mine, from which by the nature of physical circumstances he cannot escape, it does not follow from the proposition I have enunciated about liberty that he can compel the owner to bring him up out of it. The owner may or may not be under a duty arising from circumstances, on broad grounds the neglect of which may possibly involve him in a criminal charge or a civil liability. It is unnecessary to discuss the conditions and circumstances which might bring about such a result, because they have, in the view I take, nothing to do with false imprisonment.

    My Lords, there is another proposition which has to be borne in mind, and that is the application of the maxim volenti non fit injuria. If a man gets into an express train and the doors are locked pending its arrival at its destination, he is not entitled, merely because the train has been stopped by signal, to call for the doors to be opened to let him out. He has entered the train on the terms that he is to be conveyed to a certain station without the opportunity of getting out before that, and he must abide by the terms on which he has entered the train. So when a man goes down a mine, from which access to the surface does not exist in the absence of special facilities given on the part of the owner of the mine, he is only entitled to the use of these facilities (subject possibly to the exceptional circumstances to which I have alluded) on the terms on which he has entered. I think it results from what was laid down by the Judicial Committee of the Privy Council in Robinson v. Balmain New Ferry Co.(1) that that is so. There there was a pier, and by the regulations a penny was to be paid by those who entered and a penny on getting out. The manager of the exit gate refused to allow a man who had gone in, having paid his penny, but having changed his mind about embarking on

    (1)     [1910] A C 295.

    a steamer, and wishing to return, to come out without paying his penny. It was held that that was not false imprisonment; volenti non fit injuria. The man had gone in upon the pier knowing that those were the terms and conditions as to exit, and it was not false imprisonment to hold him to conditions which he had accepted. So, my Lords, it is not false imprisonment to hold a man to the conditions he has accepted when he goes down a mine.

    My Lords, I do not wish to be understood as saying that no other question than that of contract comes into this case, for the Coal Mines Regulation Act, 1887, lays down a statutory obligation on the owner of mines to provide access to the surface, and it lays down conditions as regards the availability of that access. But the material point is this: that on considering the provisions of that statute I find nothing which entitles a miner to claim to use the winding-up cage at any moment he pleases. It may be that the cage is full of coal; it may be that it is employed in drawing other people up; it may be that it is very inconvenient for other reasons to use it at the moment. It is enough that no right is given by statute which enables the workman to claim to use the cage at any moment he pleases.

    Now, my Lords, in the present case what happened was this. The usage of the mine - a usage which I think must be taken to have been notified - was that the workman was to be brought up at the end of his shift. In this case the workman refused to work; it may have been for good reasons or it may have been for bad, - I do not think that question concerns us. He said that the work he had been ordered to do was of a kind that was dangerous, and he threw down his tools and claimed to come up to the surface. The manager, or at any rate the person responsible for the control of the cage, said: "No, you have chosen to come at a time which is not your proper time, and although there is the cage standing empty we will not bring you up in it," and the workman was in consequence under the necessity of remaining at the bottom of the shaft for about twenty minutes. There was no refusal to bring him up at the ordinary time which was in his bargain; but there was a refusal, - and I am quite ready to assume that the motive of it was to punish him, I will assume it for the sake of argument, for having refused to go on with his work - by refusing to bring him up at the moment when he claimed to come. Did that amount to false imprisonment? In my opinion it did not. No statutory right under the Coal Mines Regulation Act, 1887, avails him, for the reason which I have already spoken of. Nor had he (my right in contract. His right in contract was to come up at the end of his shift. Was he then falsely imprisoned? There were facilities, but they were facilities which, in accordance with the conditions that he had accepted by going down, were not available to him until the end of his shift, at any rate as of right.

    My Lords, under these circumstances I find it wholly impossible to come to the conclusion that the principle to which I have alluded, and on which the doctrine of false imprisonment is based, has any application to the case. Volenti non fit injuria. The man chose to go to the bottom of the mine under these conditions, - conditions which he accepted. He had no right to call upon the employers to make use of special machinery put there at their cost, and involving cost in its working, to bring him to the surface just when he pleased.

    My Lords, I am aware that this question is one which will probably give rise to great general interest; but, whatever may be the feeling about questions of this kind, it is still more important that in deciding matters arising out of them strict adherence is maintained to intelligible and well-defined principles of our law so long as they stand part of it. The law of England seems to me, as it stands to-day, to be perfectly defined as regards cases of the kind, and, if it is to be altered, it must be altered by statute. It may obviously be very difficult to make any provision in relation to coal mines which requires that a workman should be entitled to come up at any moment he pleases. The nature of the employment will probably always require reasonable restrictions. But what we are concerned with at the moment is this and this simply: that no conditions existed which enabled the miner in this case to claim the right which he asserted, and that there was nothing which comes within the definition well known in the law of England which amounts to false imprisonment.

    Under these circumstances, my Lords, I am unable to come to any other conclusion than that Pickford J. was wrong and that the majority of the Court of Appeal were right, and that this appeal ought to be dismissed with costs. I move your Lordships accordingly.

    LORD SHAW OF DUNFERMLINE. My Lords, this is an action founded on tort, and the tort alleged is false imprisonment. I put to the learned counsel for the appellant what was the basis of the tort upon which he relied? And it was - as it must have been - admitted by him that that basis lay in the contractual relations subsisting between the employers and the appellant. Voluntarily the employee went down the shaft of this mine. The basis of his rights being estimated as per his contract, it becomes important to see exactly the true extent and nature of his contract. They were that he should be taken down to his work when his work began, namely at the beginning of the shift, and when his work was ended, namely at the end of the shift, he should be brought up to the surface. There was so far as I know no express arrangement or bargain of any other kind. My Lords, while that was the express bargain, it may also be implied from such a contract that if, say, illness occurred on the part of the workman during the currency of the shift there would also then emerge a right to be removed to the surface. That is a special implication arising from exceptional circumstances.

    My Lords, I now ask myself, these being the contract relations of the parties, was it any part of the contract between them that the master became obliged to give the workman the use - on demand - of the machinery for ascending from and descending the shaft? It is an admission in the case that the contract was broken; it is also an admission that there was no emerging implication of contract such as illness; and it is the last admission in the case that, the contract being broken, all the claim of alleged false imprisonment depends upon this, - that the workman's demand to be instantly let up to the surface by the master's machinery was not instantly obeyed.

    My Lords, I find no ratio which would enable me to posit a legal foundation for such a claim. For, my Lords, observe what it would result in. Such a view would be to compel one party, founding on a contract and abiding by it, to do something to assist the other party in the abandonment and violation of that very contract which is founded upon. That, my Lords, is a contradiction in legal thought, and it is indefensible in actual practice.

    I admit, my Lords, that what has been referred to by the noble Viscount on the woolsack must be carefully attended to in these cases, namely, the provisions of the Coal Mines Regulation Act with regard to the ascending and descending as well as to the other conduct of the mine. But, my Lords, there is no rule under the Coal Mines Regulation Act in general, and no special rule applicable to this mine, which covers the situation which has arisen. After some experience, my Lords, extending over many years in the analysis of both general and special rules under the Mines Acts, I myself should incline to doubt whether it might not be accompanied by great confusion, and in certain circumstances by danger, if a rule were to be set up in a mine that the winding machinery was to be set in operation upon the demand of every workman, and at his will. A different principle is now applied, namely that the proper authority is to consider the whole situation of the mine and to issue orders accordingly. And, my Lords, in the absence of any rule we are accordingly driven back to the contract with which I have already dealt.

    Is there any other ground, my Lords, upon which this action could be maintained? Can it be maintained as an action of tort on general grounds, such as some violation of natural liberty? The answer to that, my Lords, your Lordship on the woolsack has already expressed. This man voluntarily went down the mine. There is no right of natural liberty at all that he should come up at his own time and on his own demand. He went down under the arrangement, which was perfectly well known to him, that he was expected to come up, and had alone a right to come up, when the shift was completed. There is no question of general tort or of general invasion of freedom.

    In concluding, my Lords, I desire to say that I pass no judgment either by way of commendation or of reflection upon the action adopted in this mine with regard to this particular workman. These are questions of policy with which we have in this House, in our present situation, nothing to do; but I will say that I think it much to be regretted that, under the head of false imprisonment, a confusion should have been threatened in any part of the administration of our law - false imprisonment as a head of tort being perfectly well understood and clearly failing to apply to any case in which a contract existing between the parties has in no respect been violated.

    LORD MOULTON. My Lords, I concur, and I should add nothing to the two opinions which have been delivered, with both of which I entirely agree, if it were not that this case touches one of the fundamental concepts of the English common law, namely, false imprisonment; a concept which, although I do not think that there is any doubt as to its delimitations, is one of those which are most likely to lead to mistaken ideas in the minds of laymen and those who have not thoroughly mastered the elements of law.

    In the first place let me clear away one class of considerations with which we here have nothing to do. We have nothing to do with considerations that relate to the safety of human life, or the exceptional incidents in life, such as sudden illness or urgent calls based on our duties to other people which may interfere with contracts of labour. It is scarcely possible to ascertain from recorded cases the exact legal effect of such considerations, and for this reason. In honour of human nature it must be said that when cases like these occur it is in the highest degree rare to find people standing on their strict contractual rights; there is generally an eagerness to meet the claims of the unfortunate. Therefore it has never been settled, and I trust it will never have to be settled, how far the deviations from the ordinary rules of behaviour which then occur are strictly contractual rights, and how far they are dependent merely on the general loving kindness of mankind. But we have nothing to do with such questions here. Two parties are here insisting on their strict legal rights. The plaintiff is insisting that making some workmen wait for a time before they are drawn up in the cage is to be called false imprisonment; and the masters are insisting that they were not obliged to draw those workmen up in the cage until the contractual time for so doing had arrived - a point of time as to which there is no dispute. We are therefore considering a question of pure law. To my mind there are no sentimental considerations which could have any tendency to lead us to decide on the one side or the other; what we have to do is to protect the concept of false imprisonment from being disfigured by a wrong decision.

    Looked at from that point of view, what are the facts of this case? The defendants are mine owners; they have excavated shafts, and they have fitted them up with mining machinery under the strict regulations of the Coal Mines Regulation Act, and no one says that they have not fulfilled their statutory duties in that respect. That Act requires that the winding machinery shall always be in a condition to do its work, so that, if it is properly called upon to do it, it may be able to perform it. This required a large outlay of capital initially; it requires now a large daily outlay to work it.

    What is the position of the plaintiff? The plaintiff is a workman who has undertaken to work in the mine on certain purely contractual terms. There is no doubt as to the stipulations of his contract. His contract is that he is to be taken down the shaft on presenting himself at the pit mouth within certain hours, that he is to work for the seven hours and ten minutes, which is the length of his shift, and that he is to be drawn up once more on presenting himself at the pit bottom between fixed times. The plaintiff, as is admitted, broke his contract, refused to work, came to the pit bottom at a time other than that which was stipulated in the contract, and demanded to be taken up.

    I will assume that it was possible for the masters to take him up to the surface at the moment when he presented himself at the pit bottom without interfering with the regular working of the pit; but I ask myself, under what obligation were they to do it? It is admitted that they had no such contractual obligation. But it is said that it was a tort not to do it. In other words that by the law of England they were bound to work this apparatus which they had fixed for their purposes, and with their money, and which was under their control, at the bidding of a man not entitled by any contractual relation with them to demand it, and, if they did not do so, they were guilty of an actionable wrong.

    My difficulty, my Lords, throughout this case has been to understand upon what ground in law the claim of the plaintiff was based. I am extremely anxious not to use any language which might hurt the feelings of the unsuccessful party in this case; for I can easily understand that, from a wrong conception of what is meant by false imprisonment, he may have worked himself into a feeling that he has suffered some serious wrong. But as far as I am concerned it appears to me that there is no support whatever to be found for such a contention in the whole law of England. That a man should be bound to work machinery which is expensive to work, and which is his, and which he is under no contract to work at the bidding of a person who, not being entitled thereto by contract, wants to come up to the surface of the ground, and that, if he does not do so, he is guilty of false imprisonment, seem to me to be propositions which need only to be stated to be rejected as being wholly contrary to that good sense on which English common law is based. I am of opinion therefore that this appeal should be dismissed with costs.

The permission for BAILII to publish the text of this judgment
was granted by Incorporated Council of Law Reporting for England & Wales and
the electronic version of the text was privided by Justis Publishing Ltd.
Their assistance is gratefully acknowledged.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII