3PLR – JONES V. NATIONAL COAL BOARD .

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]

JONES

V.

NATIONAL COAL BOARD .

[COURT OF APPEAL]

[1953 J. No. 136.]

1957 Feb. 26, 27, 28; Mar. 1, 25. [1957] 2 Q.B. 55

3PLR/1957/43 (CA-E)

BEFORE THEIR LORDSHIP

Denning, Romer and Parker L.JJ.

 

MAIN ISSUES

ETHICS – Judge – Conduct of – Evidence of witnesses – Interventions by judge – Roles of judge and advocate.

ENERGY – Mines and Minerals – Coal – Breach of statutory duty – “Reasonably practicable to avoid breach” – Test of liability at common law – Coal Mines Act, 1911 (1 & 2 Geo. 5, c. 50), ss. 49, 102 (8).

PRACTICE AND PROCEDURE – COURT – Judge – Conduct of – Evidence of witnesses – Interventions by judge – Roles of judge and advocate.

 

SUMMARY OF FACTS AND JUDGMENT

The judge’s part when evidence is being given is to hearken to it, asking questions of witnesses only when it is necessary to clear up a point; to see that advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points made by the advocates and can assess their worth; and at the end to make up his mind where the truth lies. Though a judge is entitled and bound to intervene at any stage of a witness’s evidence to understand the nature of the evidence, such intervention should be as infrequent as possible during cross-examination, for the very gist of cross-examination lies in the unbroken sequence of question and answer.

A coalminer working at the coal face was killed by a fall of roof. Some weeks before the accident there had been a previous fall at that point and conditions had not been completely restored to normal. The widow brought an action for damages against the National Coal Board alleging, inter alia, breaches of statutory duty under section 49 of the Coal Mines Act, 1911,(1) and rules made thereunder, and also negligence at common law, in that the board, by using props and not using chocks, had failed to take proper steps to support the place where the dead man had been working. The board denied liability and in turn relied on section 102 (8) of the Act of 1911¹ to excuse them from liability for the alleged breaches of statutory duty.

At the trial of the action the trial judge intervened during the evidence for the plaintiff in order to understand the technicalities. During the evidence for the defendant board the judge intervened frequently, both during examination-in-chief and during cross-examination, at times conducting the examination of a witness himself, at times interrupting cross-examination to protect a witness against questions which he considered misleading, the 1 Coal Mines Act, 1911, s. 49: “The roof and sides of every travelling road and working place shall be made secure, and a person shall not, unless appointed for the purpose of exploring or repairing, travel on or work in any travelling road or working place which is not so made secure. …”

1. 102: “(8) The owner of a mine shall not be liable to an action for damages as for breach of statutory duty in respect of any contravention of or non-compliance with any of the provisions of this Act if it is shown that it was not reasonably practicable to avoid or prevent the breach.”

nature and extent of his interventions being such as to break the sequence of question and answer. On the issue of chocks in particular the judge in effect

 

 

 

 

 

stopped cross-examination. He gave judgment for the board on all the matters in issue.

 

The plaintiff appealed against that decision on the ground, inter alia, that she had not had a fair trial. After the issues as to liability had been fully canvassed on the basis of the transcript of the evidence, the documents, and the relevant statutory provisions and authorities, the board sought and obtained leave to give notice of cross-appeal on the same ground, namely, that there had not been a fair trial:-

 

Held that, though the judge was actuated by the best of motives, his interventions taken together were excessive and ill-timed, with the result that not sufficient primary facts had been elicited to enable the appellate court to determine the issues as to liability; and that there must therefore be a new trial.

 

Roles of judge and advocate considered.

 

Per curiam. The dearth of evidence on the issue of common law negligence, attributable to the judge’s interventions, made it impossible for the court to decide whether the board were excused from liability under section 102 (8); for if the board were exempt from liability at common law, they would also be exempt from liability under section 102 (8).

 

APPEAL from Hallett J.

 

		On January 21, 1953, a coal miner, Emlyn Jones, was working at a coal face over half a mile below ground at the Llay Main Colliery, Wrexham, owned and occupied by the defendants, the National Coal Board, when he was buried by a fall of roof and died as a result. The seam on which he was working was five feet six inches thick. The face was 125 yards long. It was worked by mechanical cutters, and the coal was taken away on a conveyor belt. There were two roads leading to the face, one at each end. As the face moved forward, the space behind (from which coal had been taken) was filled in with packing, but the roadways were kept clear. These roadways had to be made higher than the five feet six inches (the thickness of the seam) and accordingly, as they moved forward, men ripped down the material from the roof above the roadway so as to increase the height. The procedure was for one shift of men to get out the coal from the seam for about eight feet, and for the next shift to rip down the material from above. The place where these rippers worked was called the “ripping.” The edge of the material at that place was called the “ripping lip.” The roadway up to a point 10 yards from the face was called the “road.” The last 10 yards was called the “roadhead.”

 

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

 

The next step, in order to get back to normal working, was to get out the coal so as to make a normal roadhead again. The whole area was known to be “tender” because of the previous fall, and the wet condition of the strata above the coal. It was unwise, therefore, to make a frontal attack on the face from the roadhead, but better to make a flank attack by working from the side by hand. That was the work on which Emlyn Jones and his mate were about to engage on the morning of his death. Previous shifts had made some progress in this flank attack, and had got out coal from the space underneath two of the rails. Emlyn Jones had just come on the work, and he and his mates were preparing to get more coal when a large fall occurred, completely burying them, and Emlyn Jones was killed. Afterwards the surveyor found that the rolled steel joist was still in position, but the rails had broken.

 

		The widow of the dead man, Mrs. Mary Myfanwy Jones, as administratrix of his estate, brought an action against the board under the Fatal Accidents Acts and the Law Reform (Miscellaneous Provisions) Act, 1934, claiming damages and alleging, inter alia, (1) that the board had been in breach of section 49 of the Coal Mines Act, 1911; (2) that they had been in breach of regulation 6 (2) of the Coal Mines (Support of Roof and Sides) General Regulations, 1947 (S.R. & O., 1947, No. 973), which provides that “when there are any roof rippings within the roadhead, a bar or bars shall be set as near as practicable to each ripping lip extending across the whole width of the ripping”; and (3) that they had been guilty of negligence at common law in that they had by using posts and not using chocks failed to take proper steps to support the place at which the dead man had been working. The board denied negligence, and, on the alleged breaches of statutory duty, relied, inter alia, on section 102 (8) of the Act of 1911 as excusing them from liability for damages “if it is shown that it was not reasonably practicable to avoid or prevent the breach.”

 

 

On July 13, 1956, Hallett J., at Chester Assizes, gave judgment for the board, holding, on the basis of the decision in Walsh v. National Goal Board,2 that section 49 did not apply to protect the dead man, since though he was cutting coal at the coal face he was still repairing the results of the previous fall; his Lordship also held that the rules did not apply because there was at this place no roadhead and no ripping within the definitions; and that section 102 (8) would avail the board to excuse them from liability on the claim for breaches of statutory duty.

 

The judge also dismissed the claim alleging negligence at common law, holding that it would not have been good mining practice to use chocks in the particular circumstances at the place where the accident had occurred.

 

The plaintiff appealed on each of the issues as to liability, and also on the ground that the nature and extent of the judge’s interruptions during the trial had been such as to render it impossible for her counsel to put her case properly or adequately or to cross-examine the defendants’ witnesses adequately or effectively. On the fourth day of the hearing of the appeal, after submissions on the issues as to liability had been made in extenso by counsel for both parties, counsel for the board sought and obtained the leave of the court to give notice of cross-appeal on the same ground, namely, that the extent of the judge’s interruptions had prevented the board from having a fair trial.

 

Note. – The conduct of the trial is set out in detail and commented on in the judgment of the court.

 

	[ Note. – The submissions are limited to the only matter on which the court based their decision, namely, the effect of the judge’s interventions.]
	Gerald Gardiner Q.C. and W. L. Mars-Jones for the plaintiff. The plaintiff appeals also on the ground that she did not have a fair trial, owing to the nature and extent of the judge’s interruptions. Plaintiff’s counsel was prevented from putting her case

 

2 [1956] 1 Q.B. 511; [1955] 3 All E.R. 632.

 

 

properly and also from properly challenging the case of the defendants. In particular, counsel for the plaintiff was not permitted to cross-examine the expert witnesses called for the defendants adequately or effectively. One of the most difficult functions of counsel is cross-examination of an expert in technical matters, for unless it is possible to have a run of question and answer it is not possible to obtain really useful admissions. When there are interruptions from the bench, not only has counsel to meet those interventions but they give the expert witness time to think out an answer. Moreover, such interventions may also divert counsel from a preconceived line of inquiry. No member of the bar would question the absolute right of a judge to ask questions to clear up doubtful points, particularly in a technical case, and there is no point in calling technical evidence if the judge does not follow it; but if the judge’s views are expressed too early and too frequently it is bound to have an effect on subsequent evidence. It is a question of degree, but counsel cannot discharge his duty to his client unless he can ask questions in sequence.

 

[ROMER L.J. Were there in the present case similar interruptions during the examination-in-chief of the board’s witnesses?]

 

The interventions were of the same order, save that it does appear that during cross-examination the judge intervened to address to the board’s witnesses warning words such as “You must be careful what you are saying?” or “You don’t mean that?” In substance the judge conducted the trial on both sides, but apparently evinced at an early stage a strong provisional view in favour of the board. It is conceded that he had expected the case to last less long than it did, but there is unfortunately only one reason for its length, as the transcript of the evidence clearly shows.

 

		Edmund Davies Q.C. and H. Emlyn Hooson for the board. The judge’s conclusions on liability were right and inevitable. That has a direct bearing on the validity of the ground of appeal that the plaintiff was denied a fair trial. Unless it can be said that an injustice resulted from the judge’s interventions the court should not concede a new trial. There are judges who ignore the advice of Palles C.B. that “the judge who opens his mouth closes his mind,” but this judge could not be accused of closing his mind; on the contrary, with his keen mind, his passion for the law and his passion for exploring a point to its last position, it cannot be said that by his intervention he has prevented the investigation of the whole of the plaintiff’s case on each of the issues raised. The judge displayed a complete

 

grasp of the evidence, gave effect to the considerations which emerged, and his judgment, extempore though it was, was a masterpiece both on the facts and the law.

 

[DENNING L.J. Do you say that if the inevitable result would have been the same this ground of appeal is not one on which this court should take any action? How can the court decide that? May it not depend on the scope of the evidence?]

 

If the court is of opinion that as a result of the judge’s interventions a fair trial was not had for the plaintiff in the court below, it must follow that a fair trial was not had for either side, for the judge’s interventions during the examination-in-chief and re-examination of the defendants’ witnesses were co-extensive with those during cross-examination, as has been conceded. If this court were minded to allow the plaintiff’s appeal on liability at common law, there would be a rankling feeling of injustice on the part of the board that the appeal had been allowed on a ground which had ex hypothesi never been canvassed because of the nature and extent of the judge’s interventions. The duty of the court in such circumstances would be to order a new trial without more, and state that there would be no decision on the points as to liability. That will require the board to obtain the leave of the court to enter a notice of cross-appeal on the ground that the nature and extent of the judge’s interventions were such as to preclude the board from adequately presenting their defence.

 

[THE COURT intimated that leave to enter such a notice would be granted.]

 

Gardiner Q.C. in reply. The court is in a position to decide on the material before it that the board were in breach of section 49 of the Act of 1911 and have not discharged the onus on them of proving that it was not reasonably practicable to secure the roof. It is only in the alternative that a new trial is asked for, for a new trial will involve hardship for the plaintiff.

 

The following cases, relevant only on the issues of liability, were cited during argument: Walsh v. National Coal Board2; Carr v. Mercantile Produce Co. Ltd.3; Caulfield v. P. W. Pickup Ltd.4; Edwards v. National Coal Board.5 Cur. adv. vult.

 

 

2 [1956] 1 Q.B. 511; [1955] 3 All E.R. 632.

 

3 [1949] 2 K.B. 601; 65 T.L.R. 503; [1949] 2 All E.R. 531.

 

4 [1941] 2 All E.R. 510.

 

5 [1949] 1 K.B. 704; 65 T.L.R. 430; [1949] 1 All E.R. 743.

 

March 25. DENNING L.J. read the following judgment of the court, saying that the case had given rise to complicated issues of fact and law. His Lordship stated the facts as set out above, and commented that the fact that, after the accident, the rolled steel joist was still in position, but the rails had broken, seemed to show that the steps taken to secure the place outwards from the previous fall had been successful, but that those taken to secure the newly exposed roof were not sufficient. Having referred to the contentions of the parties on the issues of liability he continued: Mr. Gardiner took a further ground of appeal which is stated in the notice of appeal to be “that the nature and extent of the judge’s interruptions during the hearing of the evidence called on behalf of the defendants made it virtually impossible for counsel for the plaintiff to put the plaintiff’s case properly or adequately or to cross-examine the witnesses called on behalf of the defendants adequately or effectively.” Furthermore, Mr. Edmund Davies said that, in case there was any chance of our being persuaded that Mr. Gardiner’s three points on liability were correct, he wished himself to give a cross-notice of appeal in similar terms complaining that the judge’s interruptions prevented him from properly putting his case. We gave him leave to give a cross-notice to this effect.

 

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

 

		In order to consider the complaint we must state the course of the trial. Mr. Mars-Jones appeared for the plaintiff, and opened the case for her. He relied on section 49 of the Act of 1911, and said it was the duty of the board to make the roof secure, and that the fall showed that they had not done it. In case that approach was wrong, he relied on the Support Rules and on the common law, and he made several specific criticisms in which he said that the board had failed to do what they ought to have done. He called the widow to give evidence on damages, and then an expert, William Charles Davies. This expert had not been down the mine, but he relied on a plan which had been made by the board’s surveyor shortly after the accident. This

 

enabled him to make criticisms on the same lines as those opened by Mr. Mars-Jones. The judge intervened on several occasions during the examination-in-chief of that expert, and also his cross-examination, but this was in order to enable him to understand the technical points of the case, and cannot properly be made the subject of complaint. Mr. Mars-Jones then closed his case.

 

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

 

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

 

		Then Mr. Edmund Davies called the surveyor, Philip Edgar Roberts, who made the plan. Nothing untoward occurred in his short evidence. Finally, Mr. Edmund Davies called Cecil Henry Bates, an expert consultant mining engineer. We are afraid that

 

the judge took the examination-in-chief largely out of the hands of Mr. Edmund Davies. He took the points of criticism made against the defendants, went through them with the witness, and appeared to accept his explanations. Mr. Mars-Jones cross-examined the witness, but after a while the judge disclosed much impatience with him and he brought it to a close.

 

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

 

Nevertheless, we are quite clear that the interventions, taken together, were far more than they should have been. In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question “How’s that?” His object, above all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role. Was it not Lord Eldon L.C. who said in a notable passage that “truth is best discovered by powerful statements on both sides of the question”?: see Ex parte Lloyd.1 And Lord Greene M.R. who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, “he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict”: see Yuill v. Yuill.2

 

1 (1822) Mont. 70, 72n.

 

		2 [1945] P. 15, 20; 61 T.L.R. 176; [1945] 1 All E.R. 183.

Yes, he must keep his vision unclouded. It is all very well to paint
justice blind, but she does better without a bandage round her eyes. She
should be blind indeed to favour or prejudice, but clear to see which
way lies the truth: and the less dust there is about the better. Let the
advocates one after the other put the weights into the scales – the
“nicely calculated less or more” – but the judge at the end decides
which way the balance tilts, be it ever so slightly. So firmly is all
this established in our law that the judge is not allowed in a civil
dispute to call a witness whom he thinks might throw some light on the
facts. He must rest content with the witnesses called by the parties:
see In re Enoch & Zaretzky, Bock & Co.3 So also it is for the
advocates, each in his turn, to examine the witnesses, and not for the
judge to take it on himself lest by so doing he appear to favour one
side or the other: see Rex v. Cain,4 Rex v. Bateman,5 and Harris v.
Harris,6 by Birkett L.J. especially. And it is for the advocate to state
his case as fairly and strongly as he can, without undue interruption,
lest the sequence of his argument be lost: see Reg. v. Clewer.7 The
judge’s part in all this is to hearken to the evidence, only himself
asking questions of witnesses when it is necessary to clear up any point
that has been overlooked or left obscure; to see that the advocates
behave themselves seemly and keep to the rules laid down by law; to
exclude irrelevancies and discourage repetition; to make sure by wise
intervention that he follows the points that the advocates are making
and can assess their worth; and at the end to make up his mind where the
truth lies. If he goes beyond this, he drops the mantle of a judge and
assumes the robe of an advocate; and the change does not become him
well. Lord Chancellor Bacon spoke right when he said that8: “Patience
and gravity of hearing is an essential part of justice; and an
over-speaking judge is no well-tuned cymbal.”

Such are our standards. They are set so high that we cannot hope to
attain them all the time. In the very pursuit of justice, our keenness
may outrun our sureness, and we may trip and fall. That is what has
happened here. A judge of acute perception, acknowledged learning, and
actuated by the best of motives, has nevertheless himself intervened so
much in the conduct of the

3 [1910] 1 K.B. 327.

4 (1936) 25 Cr.App.R. 204.

5 (1946) 31 Cr.App.R. 106.

6 The Times, Apr. 9, 1952; Judgments of the Court of Appeal, 1952, No.
148.

7 (1953) 37 Cr.App.R. 37.

8 Essays or Counsels Civil and Moral. Of Judicature

case that one of the parties – nay, each of them – has come away
complaining that he was not able properly to put his case; and these
complaints are, we think, justified.

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

to which Mr. Mars-Jones was subjected from the bench may well have
prevented him from eliciting from the defendants’ witnesses answers
which would have been helpful to the plaintiff’s case, and
correspondingly damaging to that of the defendants.

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

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

for safety are called for. Again, he wrongly assumed that the shortening
of the conveyor belt would involve exposing more men to the same risk.
We are not saying that the judge was necessarily wrong in accepting the
board’s answer, but we would like to have more facts before accepting it
as sufficient. In the absence of them, we do not think it would be fair
to either party to pronounce upon it.

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

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

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

Appeal and
cross-appeal allowed.

New trial ordered.

Costs of appeal and
in the court below
reserved to the judge
on the new trial.

Solicitors: Jaques & Co. for Cyril Jones, Son & Williams, Wrexham;
Donald H. Haslam for P. E. Lissant, Manchester.

M. M. H.