AB & Ors v British Coal Corporation & Anor

The judgment in Griffiths and Others v British Coal Corporation delivered on 28 January 1998 forms the essential context of the present proceedings. It will be necessary to refer to a number of its findings for the purposes of the judgment in these proceedings. It has been accepted by the parties to these proceedings that they are bound by those findings and, with one immaterial exception, its conclusions of law.

In the circumstances set out below, the Department of Trade and Industry (DTI) seek to recover contribution, under the provisions of the Civil Liability Act 1978, or indemnity, in contract, in respect of some of the liability which they inherited by statutory subrogation from the former British Coal Corporation (British Coal). From the late 1950’s/early 1960’s, British Coal (National Coal Board, as it was then constituted) started to employ contractors to execute work connected with major developments in their underground mines. Over the period up to 1994, between five and six thousand men may have been so employed at any one time. The main purpose of such work was to enable new production faces to be opened up, an essential feature of any systematic mining of coal. The nature of the work was essentially tunnelling, which is an everyday part of civil engineering construction. In addition to underground work executed in existing mines, shaft sinking and the opening up of new mines were also included in the work which was contracted out. The practice of using contractors in this way was spread across coalfields, although some areas were more reluctant than others to make use of their services. The decision whether or not to employ contractors for any particular project was determined by policy which emanated from the Mining and Projects Department of British Coal. The terms of contractors’ employment were then determined by the Purchasing and Supplies Department as supplemented by instructions issued by Area organisations into instructions issued by colliery managers. As Dr Jones, who became the last Head of Mining for the former British Coal, was to say:

The regime imposed to deal with contractors was quite rigid. … The contract documentation would set out who was responsible for what in terms of delivering the contract and in providing health and safety equipment, instruction (and so on).

As will shortly become clear, the exact role of the contractor in terms of his responsibilities under the contract and towards his own men was a major area of dispute in this litigation.

The liabilities of the former British Coal were transferred to the Department of Trade and Industry under the provisions of the Coal Industry Act 1997. In the case of Griffiths and Others v British Coal Corporation, judgment in which (“the original judgment” [bundle P]) was delivered on 27 January 1998, British Coal was found liable to compensate a selection of miners and former miners in respect of damage caused to their respiratory systems following work underground in the course of their employment. The medical conditions in respect of which compensation was held to be recoverable were identified as chronic bronchitis, emphysema, small airways disease and temporary exacerbation of asthma (but not its initial causation). These conditions have been described collectively as chronic obstructive airways disease, allowing the acronym COAD or chronic obstructive pulmonary disease and the acronym COPD. It is the latter which will be used throughout this judgment.

Since judgment was delivered as above, the numbers of claimants have swelled dramatically, such that claims numbering in excess of 550,000 have been made. In financial terms, this has led to a potential liability amounting to something in excess of £3.5 billions. In these proceedings, the DTI seek to recover contribution and or alternatively indemnity from the independent contractors in respect of the compensation which they have paid to men who at some stage in their lives worked for contractors and also for British Coal. The broad grounds asserted are that the Contractors were in a number of particular respects also at fault, so far as those men were concerned, and that such fault contributed, at the least, to some of the injury of which complaint is made. It is implicit in the nature of these proceedings that British Coal was itself, as the DTI accepts, concurrently in breach of its duty of care to those same workmen. British Coal does not, nor could they, seek to challenge in these proceedings any of the relevant findings in the original judgment. The basis of this necessary precondition to the DTI’s right to proceed against the contractors is to be found fully set out in that judgment. Throughout the proceedings and this judgment, the Contractors are referred to as the Third Party – modern nomenclature (part 20 defendant) does not readily lend itself to a clear understanding of the true characteristic of a conventional third party.

Following the original judgment, and realising the possible extent of the claims which would be forthcoming, the DTI entered into a scheme with the Claimants’ solicitors, the intention being to enable the vast majority of those claims to be disposed of administratively, and without further reference to the Court, save for the purposes of review of the operation of that scheme. This scheme, the Claims Handling Agreement (CHA)), was subsequently approved as a reasonable basis for settlement of the claims by the Court in its role as manager of the Group Litigation, of which the original claims and the present claims were and are both a part. The Agreement was the product of much careful, detailed and technical negotiation by the original parties to the litigation and their legal and professional advisers including, as will be seen, a team of medical advisers. As has appeared in practice, some parts of the scheme have been found not to be meeting the intentions of the parties as they would have wished, the consequence has been that it has been amended from time to time to reflect those needs, and has been further approved by the Court. In all essential respects, however, the scheme has met, and is still meeting its objectives, although from the point of view of many claimants it has appeared that the active participants, namely the DTI and the Claimants’ solicitors, have introduced unnecessary delays in the process. This is a separate issue, which is one of those reviewed by the Court on a regular basis and need be of no more concern in these proceedings.

The claim by the DTI is that the Contractors were as much in breach of the relevant duty of care towards their workmen, also in many of the same respects, as British Coal had been found to be towards its workmen in the proceedings which led to the original judgment and thus it makes its claims. These are founded both in contract and also for contribution under the provisions of the Civil Liability (Contribution) Act 1978. The claim in contract is also founded on two bases. First, there are alleged breaches of the express terms of the specifications within the contracts under which the contractors performed their works. Secondly, the Defendants, rely on express indemnity clauses to be found in the relevant general conditions of contract as they were from time to time. The Contractors’ answers to these claims have been to deny they were in breach of contract and that, if they were at fault at all, it was of so limited and infrequent occurrence that it is not a case where it would be just or equitable that they should be ordered to make either contribution or afford indemnity. The Contractors also contend that, in acting as they did, they did no less than the contracts, when properly construed, required of them. Insofar as the claim for indemnity is concerned, it is they the Contractors, not the Defendants, who are entitled to claim indemnity by relying upon the indemnity clauses in their favour contained in those same conditions of contract. The Contractors also raise other arguments of substance.

In particular, the Contractors rely on the existence of the detailed and elaborate statutory scheme which was at all material times embodied in the Mines and Quarries Act 1954 and subordinate legislation which makes meticulous and detailed provision for management of coal mines, as well as every aspect of safety of any individual who goes underground for the purposes of his work. It was within such a regime that the Contractors were required to operate. Apart from this, the Contractors were under contractual obligations to British Coal which were largely uniform, albeit the specifications of individual contracts would of necessity differ as to detail according to the work which was the subject of the contract. It was said that the terms of the contracts left little, if any, scope to the Contractors to perform their work in any other way than British Coal determined, that was “the British Coal way”. It was accepted by the Third Party that they were, nevertheless, not relieved from having to comply with their common law obligations towards their workmen. It was further accepted that, despite these statutory and contractual provisions and restraints, the common law duties of the employer were ‘non-delegable’.

The contractors took exception either to the whole or to certain aspects of the CHA, as a basis upon which a claim for contribution under the Act of 1978 could properly be founded. The grounds upon which reliance was placed for this position were that, in certain limited respects, the CHA did not reflect the principles of common law governing the assessment of damages. This consequence flows, it was argued, from various of its provisions which enable some claimants to be excessively compensated while, in other respects, there is scope for double recovery by claimants who have claims both in these proceedings in respect of COPD and in the other major occupational health claims brought against the former British Coal relating to vibration white finger (VWF) and, possibly, deafness. In addition, in other particular respects, the awards of damages to individual claimants are excessive, and therefore unreasonable, because the respiratory specialist (RS) who performed the medical assessment (MAP) on those men, has either misunderstood or misapplied the criteria written into the CHA or has failed to take properly into account, evidence in the individual case, or information which was contained in his medical records or revealed by the tests which were performed for the purposes of the assessment.

Notwithstanding, these generalised answers to the present claims, the Contractors accepted through their Counsel that there will have been times when as a matter of probability occasions must have arisen when an employee would have been exposed to excessive dust and that the Third Party would have been in breach of their duty of care as employers. [V1.p3]

Seven Lead Claims have been selected either by the parties, or as ordered by the Court. One other claim (Mellor) was included for consideration by the Court because it raised a limited, but potentially important, issue in relation to the attribution and quantification of a relatively minor disability. These cases are intended to be representative of men who worked for Contractors for some, at least, of the time which they spent working underground. All Lead Claimants also worked for a substantial part of their working lives for British Coal and have already been compensated under the provisions of the CHA. It is in relation to the recoverability of some part of the compensation so paid that these proceedings are brought.

Generically, the claim is that the Third Party had been guilty of many of the shortcomings that were found against British Coal in the Griffiths proceedings. Inevitably, as the owners of the mines and employers of the managers and workmen employed therein, the duties of the Defendants were by Statute and Regulations more extensive and rigorous than those under which Contractors worked. But reliance is placed by the Defendants on (relevant) generic findings in the original judgment:

1.

(British Coal failed) to take reasonable steps to minimise the creation and dispersion of [respirable] dust by the introduction and use of known and available dust suppression techniques from about 1949 to 1970 and to a lesser extent thereafter.

2.

(i) Failure to use picks and drills equipped with water sprays;

(ii)

…

(iii)

…

(iv)

Failure to minimise dust exposure during shot firing by firing on production shifts in the proximity of miners;

(v)

Failure to attend to ‘housekeeping’ within the mine, such as attention to chutes , transfer points, spillage on conveyors, dusty roadways and the like;

(vi)

Failure to ensure there was sufficient ventilation in headings and drivages by:

(a)

failing to ensure ducting was extended to the face and repaired so as to be effective;

(b)

failing to use ventilation systems that would be more effective at dispersing dust, such as overlap systems which combined forcing and exhausting fans.

(vii)

Failure to encourage miners to wear respirators (or dust masks) from 1965 onwards, during times when dust levels were particularly bad.

It is alleged that these listed failures on the part of British Coal, suitably adapted to the particular work undertaken by contractors can equally be made against the latter, together with some important additions.

One such addition to the list was the allegation that because contractors were remunerated under their contracts on the basis of rate of advance, or “yardage”, there was an incentive on the men, who were also paid bonus for the progress made, for them to re-enter the working area or ‘face’ of the heading too soon after shotfiring while heavy concentrations of fume and dust were still present. Such conduct was not only in breach of the requirements of the Coal Mines (Respirable Dust) Regulations 1975 (RDR), after they came into force on 1^st January 1975, but was also a breach of one of the Shotfiring Regulations (see below).

The Third Party’s pleaded defence had been a model of what pleading used to be before the introduction of the Civil Procedure Rules and what ought never to have been seen since. As the case has progressed some refinements have been introduced by way of amendment and concession. Thus, importantly, but enigmatically, in the skeleton opening made on behalf of the Contractors, it was stated that:

The Third Party accepts that as employers the Third Party owed a non-delegable duty of care to their employees. The Third Party do not deny that as a matter of probability occasions must have arisen from time to time when an employee engaged in work underground in a coal mine would have been exposed to excessive dust and that the Third Party would have been in breach of such duty of care. [V1. ¶1]

The Defendants are thus put to proof of when, for what periods and in what circumstances those situations of exposure to excessive dust as a result of the Third Party’s fault or breach of contract were actually experienced by any of the Lead Claimants. [V1. ¶4]

It is the fact that before any man was permitted to work unsupervised underground, he underwent training by British Coal and received a training certificate. Two of the claimants worked in the South Wales Coalfield. The remainder have come from the Yorkshire and Nottinghamshire Coalfields. The Third Party have been selected from the body of contractors who have worked for British Coal from the 1950’s until the time when the mines were returned to private ownership in 1994, and subsequently. The historical scope of these proceedings falls within this timescale. As it happens, the nominated Third Parties are the largest of the firms of contractors who carried out development work and were the only ones who undertook shaft sinking and repair work in addition to constructing headings, roadways and drivages which are the underground areas with which this litigation is particularly concerned.

As might have been expected with so large an organisation as British Coal, there were attempts at standardisation of the terms upon which they contracted for the supply of goods and services. There were two major editions of Standard Terms and Conditions. These will be separately considered in detail under The Contract Issues (Chapter 3) hereafter. In summary, the thrust of both sets of conditions was similar, although the format obviously differed. Under both versions of the terms, a contractual obligation was placed on the Contractors to comply with the provisions of the Mines and Quarries Act 1954, in particular sections 55 (ventilation) and 74 (minimise dust), as well as the RDR after they had come into force. One of the questions to arise in these proceedings will be the extent to which the statutory obligations, to which the Defendants were subject could also be applied to the Contractors, while working in British Coal mines.

In addition to disputes over the contractual and common law position of both parties, there are also significant challenges over the extent to which the CHA should have been held to be a reasonable attempt to settle all the outstanding claims which had been brought against the Defendants and whether the Third Party, which was not a party to it, may nevertheless be bound thereby. It is the Third Party’s case that in certain identified respects, the CHA results in over-generous compensation to claimants and that, as the result of lack of clarity of instructions issued to RSs and the claims assessors non-respiratory co-morbid conditions which could impact on overall disability were ignored. As well as this generic challenge, it is also disputed that RSs properly assessed the disability of each lead claimant with the result that there have been “overpayments” as compared with compensation which should have been payable at common law and which should not, therefore, have occurred.

From this short overview, it will be understood that the issues in these proceedings are many, complex and varied.

In the light of the judgment in the original litigation the objective of the parties was to enable the awards of compensation to qualifying miners and ex-miners to be assessed without the need for any further Court proceedings, while at the same time, so far as practicable, replicating the common law principles upon which damages should be awarded as were set out in the CHA. The introduction to the CHA is instructive in this respect. Thus:

1.

Several (Claimants) have brought claims for personal injury, loss and damage against British Coal Corporation (BCC) alleging that various respiratory illnesses were caused by the tortious exposure to mixed mine dust and/or fumes during the course of the (Claimants’) various employments with BCC at various dates from 1947 onwards.

2.

The said … claims were brought together as a group and made the subject of directions styled the … BCRDL by the Order of … Mr Justice Turner dated 21 December 19985 and by related Orders.

3.

The BCRDL was tried by way of eight lead actions and judgment was given on 23 January 1998.

4.

In excess of 70,000 Claimants have lodged claims and further claims are anticipated [now in excess of 400,000 and still increasing).]

5.

The occupational health liabilities to which the BCRDL relates were transferred from the BCC … to the Secretary of State for Trade and Industry on 1 January 1998 by way of a Re-structuring Scheme made under the Coal Industry Act 1994.

6.

The Parties have agreed a procedure for the fair, consistent and expeditious assessment of claims, and for the payment of damages where appropriate.

7.

It is the intention of the parties to settle claims under the following Agreement …

ACCORDINGLY the Parties agree that the DTI will offer the following terms for the disposal of claims to Claimants … .

All claims made or intended to be made against British Coal for COPD were stayed under the terms of the Group Orders which were made on 6 March 1996, 31 March 2000 (especially paragraphs 3 and 4).

In order to further the objects of the CHA, the DTI appointed Irisc Claims Management Ltd (IRISC), formerly a division of AON, to manage claims arising thereunder. In summary, the procedure set out in the CHA provided broadly for two methods of pursuing claims according to whether a claimant had provided a medical report on joining the scheme, or he had not. Thereafter, if IRISC was able to make an offer on the basis of the information contained within the report, subject to being satisfied in respect of the employment record among other matters, it would do so. If not so satisfied, then the claimant would have to proceed to the MAP. In such a case the Claimant has then to complete a Claims Questionnaire(CQ) and submit to examination by a specially appointed Respiratory Specialist (RS) who would be required to follow the procedure contained within Schedule 7 to the CHA. The procedure is detailed, as will appear from relevant the sections which are reproduced later in this judgment.

The Guidance Notes to the RSs contained within the CHA also provide that the assessments are to be based on the test of “balance of probability” both as to the presence of one of the relevant conditions and as to the presence, or otherwise, of disability and co-morbid conditions “and the contribution they may or may not make to overall disability”. At a later stage of this judgment, it becomes necessary to examine, in some detail, the contents of the Medical Assessment Process (MAP) forms in respect of all the Lead Claimants, whose claims have been settled by IRISC. All these assessments are now challenged as to their validity by the Third Party. Validity, that is, both in terms of the findings as to relevant disability, but also as to the percentage factor by which the appropriate level of compensation, which is determined by the assessment of disability, is to be allocated. There are two scales which are of importance: Impairment of Lung Function and the Disability Rating Scale. The first is the classification of impairment of lung function, whatever its cause, into mild, moderate and severe. The measure here is as follows:

Impairment of Lung Function

Mild	FEV1 or FVC or TLCO < 80% predicted or FEV1/FVC < 70%
Moderate	FEV1 or FVC or TLCO < 60% predicted or FEV1/FVC < 60%
Severe	FEV1 or TLCO <40% predicted or FVC < 50% or FEV1/FVC<50%

It is important that these expressions of lung capacity, which feature largely in the present dispute, should be understood. It will be most convenient to reproduce the relevant passage from the original judgment [pp 112-114] in Chapter 8 (Medical disputes) where these measures of lung function are described. The second scale is found in Schedule 7 to the CHA (as guidance note to question 38 on the MAP form) and is in the following form:

The Disability Rating Scale for COPD

All assessments should be based upon comparison with healthy men of similar age.

Disability Score	Symptoms	Lung Function Impairment
0% - 10%	Not breathless on exercise	None
10% or more	Breathless on prolonged or heavy exertion	Mild
20%	Breathless on walking uphill or climbing stairs or on hurrying on level ground	Mild
30%	Breathless at normal pace for age walking on level ground	Moderate
40%	Breathless on walking 100 yards or climbing one flight of stairs at a normal pace	Moderate
50%	Breathless on walking 100 yds at a slow pace or climbing one flight of stairs at a slow pace	Moderate
60%	Breathlessness prevents walking 100 yds at a slow pace without stopping or climbing one flight of stairs without stopping	Severe
70%	Breathlessness prevents activity outside the home without assistance or supervision	Severe
80%	Breathlessness limits activities to within the home	Severe
90%	Able to walk only a few steps because of breathlessness	Severe
100%	Bed and chair bound, totally dependent on carers because of breathlessness	Severe

Note: These scales are replicated in the MAP forms.

Under the terms of the CHA, when a claim is first made, the claimant (which expression may include his representative) is offered screening spirometry in accordance with the provisions of schedule 10. This enables IRISC to make an ‘expedited offer’ based either on chronic bronchitis (CB) alone or COPD on the basis of a tariff of general damages set out in the agreement. This tariff provides a range of awards from £1,750, where the claimant has between 5 and 9 years’ underground work and his FEV1 is 90 per cent or less of predicted, to £2,050 when employment exceeds 10 years. The tariff is graduated so that with an FEV₁ of only 20 per cent of predicted with more than five, but less than 10 years work, underground, the award will be £8,250 but, where the employment exceeds 10 years, the figure will be £14,500. In none of these cases will an offer which is made, and accepted, carry with it any entitlement to special damages. In respect of later arguments raised by the Third Party about the reasonableness of the CHA as a settlement, this is one of the features which may lead to “under compensation” as compared to claims assessed at common law.

If the decision is taken not to proceed by way of the acceptance of an expedited award, the claimant then proceeds by way of the MAP. To initiate this process, a Claims Questionnaire (CQ) must be completed and verified by a Statement of Truth. In substance, this form takes the place of a statement of case in civil proceedings, but has detailed requirements which fit it for the process of which it is an integral part. Details have to be included both of employment and smoking history. IRISC, to which the CQ is directed, has then to check the information provided against British Coal records and will supply the Claimant with an Employment History Schedule (EHS) which enables suggested corrections to be made, but a response must be made to this within a specified period. If no response is made, then IRISC will make an offer based on the EHS and the contents of the MAP report, together with any changes which may be justified in the smoking history.

Upon receipt of a correctly completed CQ, IRISC have then to arrange for the claimant to attend lung function tests as part of the MAP. This will then be followed by a medical examination by a single fully qualified RS in accordance with schedule 7 of the CHA.

From the nature of the agreement as thus far explained, it will be apparent that the role of the RS will be of great importance in determining the level of the award. It was suggested during the hearing that the role was similar to that of a ‘mini-judge’. This is, I believe to misunderstand the true position, which is more akin to that of a medical referee. The findings and recommendations of the RS give rise to certain shared consequences, which are written into the CHA.

Annex 7a to the CHA (O5 p178) contains the, all important, instructions (Guidance Notes) to RSs. After a number of introductory paragraphs, these provide:

E. Your task is to diagnose the conditions suffered by the Claimant and to assess the extent of disability. Once you have made an assessment of the overall disability you are required to apportion between (i) that attributable to chronic obstructive pulmonary disease (in respect of which the DTI will pay compensation) and (ii) other co-morbid conditions which contribute to disability and in respect of which no compensation will be paid. Your report must be on the MAP Medical Report Form provided (see paragraph H below).

F. Your report will help determine whether or not compensation is paid to the Claimant and, if so, it will substantially influence the amount paid. As the Respiratory Specialist you owe an equal duty to the Claimant and to the DTI. Your report must therefore be accurate and objective, and comply with the instructions and guidance set out in this document.

Under a later sub-heading Asthma (questions 10-12) [Note that all question numbers relate to those on the MAP Report form] it is stated:

You are asked to investigate three issues:

i)

Does the Claimant have asthma now?

ii)

Was he asthmatic during the period that included working underground in a British Coal mine?

iii)

If he was asthmatic when he worked underground in a British Coal mine, did he suffer from exacerbation of asthma as a result of exposure to dust and/or fumes after 4 June 1954 … ?

You should note that your final decisions on these matters should be set out later in the MAP Medical Report at Q31. They are deferred until then because at that stage you will also have had the opportunity of examining the Claimant and reviewing his lung function tests. In addition, if you believe that the Claimant has asthma now, you are also asked later at Question 52 to estimate the contribution that it is making to any current disability

The annex then discusses the circumstances in which a diagnosis of asthma may properly be made, including the necessity to place weight on the medical records of the Claimant which will have been made available to the RS. It stresses, however, that (p181):

You are asked to use your clinical judgment, keeping in mind the “balance of probabilities”. Note again that there should be some objective evidence, in the form of documentation in the medical records, that a man had asthma at the relevant time and that it was exacerbated by his exposure to dust and/or fumes at work.

The document then deals with the need to obtain details, and requires an assessment to be made, of the smoking history. Similarly, the RS is required to make an interpretation of the lung function tests which will have been provided, including “flow volume loop and body mass index”. It then provides (p182):

The presence of emphysema may be inferred from the characteristic flow-volume loop, hyperinflation and lower KCO. Airways obstruction can be identified by reduced FEV1 and FEV1/VC ratio (<70%) or high RV/TLC ratio (>40%) or hyperinflation in excess of normal values. You should note that in the mining population epidemiological evidence shows that the FEV₁/VC ratio may be maintained in miners who show conclusive evidence of emphysema.

Any other causes of airways obstruction and additional lung disease (e.g. a restrictive defect) should also be noted if they exist. When reporting you should also establish that the lung function recordings are technically acceptable, and confirm that this is the case.

The body mass index (BMI) is required to help you judge whether the Claimant is obese (which you do later at Question 34).

Under the cross heading Chest x-rays, CT Scans and Other Test Results (Questions 25 – 27) the following provision appears:

You are asked to comment upon any other information in the records available to you regarding past investigations. These may include past x-ray reports, or previous spiromentry result(s) or full lung function testing. Similarly, there may be blood tests or the results of other investigations for co-morbid conditions other than COPD.

Under the cross heading Diagnoses is the following provision:

It is the overall consultation with the Claimant which is intended to assist in assessing the degree of injury and disability, the physical examination in isolation may only provide limited confirmatory information. In mild and moderate cases, physical signs (apart possibly from wheeze) may well be lacking. In more severe cases there may be additional features of emphysema, for example quiet breath sounds or hyperinflation. Additionally, there may be physical signs of respiratory failure, for example cyanosis or cor pulmanale etc.

When completing the answers to Questions 28 to 35 please remember that each diagnosis must be made on the balance of probabilities.

Chronic Bronchitis (Question 28)

28.1

In the lead cases in the miners’ lung disease claims, the Judge used the MRC definition, and said that it:

‘is a functional rather than disease based definition, with sputum production on most days for at least three months in the year for at least two consecutive years.’

28.2

Note: to diagnose chronic bronchitis by the MRC definition, other conditions such as bronchiestasis, tuberculosis and asthma must be excluded, though these conditions may co-exist with chronic bronchitis.

28.3

You are asked to assess the claim to establish whether the Claimant has, or had, symptoms which fulfil the criteria for the MRC definition of chronic bronchitis. Part of your role is, as set out in the qualification to the definition above, to satisfy yourself that the Claimant has or had no other conditions causing the symptoms. Bronchiestasis is likely to be the most common of these.

28.4

The questions in the Claim Questionnaire are designed to elicit the key features which must be established before a diagnosis of chronic bronchitis due to working in mines can be considered. You should keep the following points particularly in mind, and may wish at this point to look again at the Claim Questionnaire.

Question 26 …

The claimant must have had a cough which produced sputum during, or in very exceptional circumstances shortly after, the period when he was working underground in a British Coal mine after 4^th June 1954.

Question 27 …

This establishes whether the claimant was treated for his symptoms. If he was not then the necessary corroboration will not exist. [Emphasis added]

Questions 28 and 29 …

These are designed to establish whether the Claimant’s recollection of his symptoms fulfils the MRC criteria in terms of frequency and duration of cough with sputum.

Question 30 …

It is not necessary for the Claimant to establish that he still has problems now in order for him to qualify for compensation for chronic bronchitis suffered during the period when he worked underground in a British Coal mine.

Questions 31 and 31 …

Haemoptisis is not a feature of chronic bronchitis. A response to this question which indicates more than a single isolated instance of haemoptisis should indicate the possibility of other conditions, particularly bronchiectstasis, and may indicate the need for further investigation. Its presence may indicate that it, rather than chronic bronchitis, was the cause of any chronic cough documented in the records.

Question 33.

The section of the questionnaire dealing with matters related to chronic bronchitis ends at this point. Some Claimants will not have indicated any breathlessness in response to question 7, and these individuals are being assessed via a separate process. The Claimant whom you are seeing has stated that he does have problems with breathlessness and has filled in the remainder of the Questionnaire. Your opinion as to whether he has chronic bronchitis, however, should be based on this section and your review of the records and clinical assessment as below.

28.6

The records, if available, should contain corroboration of chronic bronchitis. However, there may be circumstances when even though there is no corroborative evidence in the records the Claimant nonetheless gives you such a persuasive history that you form a clear view that he did have chronic bronchitis whilst working underground in a British Coal mine (or, in very exceptional circumstances, shortly after).

28.7

Similarly, if records are lost, whilst you should be careful about diagnosing chronic bronchitis on the Claimant’s self reported symptoms alone, if you are satisfied in your judgment that the Claimant did have chronic bronchitis you should say so. Again the parties will, if necessary, resolve the lack of corroboration via the Disputes Procedure.

28.8

…

28.9

Records vary greatly in their quality and extent. You should also keep in mind that some Claimants may be more disposed to attend their GP or take time off work than others, even with similar symptoms. You are accordingly expected to use your experience and judgment as a Respiratory Specialist when forming your view as to whether or not there is sufficient corroboration in the records to substantiate the Claimant’s statement that, whilst he was working underground in a British Coal mine (or, in very exceptional circumstances, shortly after), he had symptoms which would satisfy the MRC criteria for a diagnosis of chronic bronchitis. Further, the same experience and your judgment should be used to form your view as to whether the Claimant has or had other significant respiratory conditions.

29.10

Corroboration of a diagnosis of chronic bronchitis would be suggested by the use of terms like the following recorded in the notes whilst working underground in a British Coal mine:

Chronic bronchitis	(one or more entries)
Bronchitis	(two or more entries)
Cough and phlegm/sputum/spit	( “ “ “ )
Productive cough	( “ “ “ )
Acute exacerbation of chronic bronchitis	(one or more entries)

28.11

The list cannot be exhaustive. Repeated entries for “chesty cough” would qualify, as would repeated prescriptions for expectorants.

28.12

Entries stating “acute bronchitis” would not qualify.

28.15

You should keep in mind the principle that you are not asked to give either the Claimant or the DTI the “benefit of the doubt”. You are asked whether, in your judgment and on the information available to you, it is more likely than not (i.e. you are more than 50% sure) that the Claimant did have chronic bronchitis when working underground at a British Coal mine. Similarly you are forming a view, on the balance of probabilities, whether or not the claimant had other Respiratory conditions which were wholly or partly responsible for a productive cough whilst working underground (or, in very exceptional circumstances, shortly after).

Annex 7, then deals with the major condition with which this litigation is concerned, namely COPD. The RS is required to state whether he finds the condition to be present and continued by providing that "At questions 30 to 35 you are asked to set out all other conditions which you believe to be relevant to the Claimant's overall disability". The current edition of the CHA provides:

[The presence of asthma … does not preclude a simultaneous diagnosis of COPD. Features which would point to such a situation would include significant response to bronchodilator (such that the criteria for asthma are fulfilled), but failure of the FEV1 to approach normal, either in the current lung function tests or in the previous medical records. You are asked to use your skill and judgment to the best of your professional ability in determining whether a combination of these conditions is present.]

There are then comments on questions relating to pneumoconiosis, asthma and cor pulmonale or other heart disease as well as obesity. The possible relevance of obesity is the effect which it may have in reducing FEV₁ in the affected individual. By reference to question 38 (in the MAP form) (p188) the RS is required to assess the:

Extent and component parts of Disability

38.1

Respiratory disability has been defined by the World Health Organisation as a reduction in exercise capacity due to impaired lung function. The resulting social and occupational disadvantage is designated as a “handicap”.

38.2

You are asked to rate the Claimant’s respiratory disability relative to a healthy man of similar age. Measurements of lung function are a guide, but only a guide, to this. Other factors, including the starting level of lung function when fit, the Claimant’s customary level of activity when well, other physical illnesses and psychological reaction to illness, all influence the degree to which a given level of lung function impairment will cause disability in an individual. The lung function impairment should therefore be taken into account in assessing disability but cannot be the sole determinant.

38.3

The European Society for Clinical Respiratory Physiology has formulated a rating scale [as set out above] …in simplified form … . You may use this to guide you towards the range into which you might expect the Claimant’s disability to fall, whilst keeping carefully in mind the distinction between impairment measured at lung function testing and actual disability in terms of reduction in exercise capacity.

The annex then sets out the “mechanics” by which the RS is to arrive at a ‘total disability score’ which is defined ‘as the sum of all the elements of disability’ as will have been found as set out in the MAP form. In particular the RS is required to assess the percentage disability attributable to COPD, PMF (pulmonary massive fibrosis) and “all other causes”. Importantly, so far as concerns this litigation, there is then the cross-heading:

Other examples are then given in the notes to questions 38.18 to 38.22. This examination of annex 7 must conclude by quoting:

38.23

It is, of course, fully understood and accepted that, as with some other aspects of this process, the calculations you are being asked to make may seem artificial, and unlike those which are an part of your everyday practice as a RS. They are, however, an important part of the legal process needed for fair assessment and apportionment of compensation. You are asked to use your skill and clinical judgment, to do the best you can, and answer the question to the best of your ability.

The necessity for this extensive discourse on the provisions contained in annex 7 was conditioned by the nature of the challenges made to it at the commencement of the hearing. It was the case for the Third Party that there were two principal questions which arose, videlicet:

1.

Whether the CHA provides the basis for a reasonable settlement of the (individual) Claimant’s claim, or whether there are material deficiencies within it which allows (sic) for an unreasonable (excessive) payment to be made; if not, in any event

2.

Whether the requirements of the CHA were in fact applied to the particular case.

No fewer than nine alleged deficiencies were identified. These can be summarised as:

1.

No discount for the fast track no fault compensation scheme;

2.

No obvious duty in IRISC to scrutinise claims for their essential validity;

3.

The apportionment of claims where there is co-morbidity only takes place where respiratory disability is adversely affected by the co-medical condition;

4.

Apportionment in the co-morbid cases is permitted, whereas at common law there would be a nil recovery in a case in which the co-morbid condition eclipsed the effects of the respiratory condition;

5.

In the result, over compensation;

6.

…

7.

Payments for chronic bronchitis are made without rigorous application of the full MRC definition, which requires corroboration;

8.

Failure to take adequate, or any, account of age in the application of the Disability Rating Scale (above)

9.

Failure to allow for the future effects of continued smoking.

The legal basis underlying these alleged deficiencies may be formulated by the proposition that it is for a defendant who is to succeed in his claim for recovery from a stranger to those proceedings, and who seeks contribution towards the settlement of his liability for a claim made against him, to prove that the settlement was in fact reasonable. If, by reason of the omission of some important consideration, or it might be inclusion of some irrelevant matter, it was not reasonable then payment of compensation should be regarded by the court as a voluntary assumption of liability to compensate and should not to be imposed on a stranger to the original litigation.

Because of its expressed “concerns” – which later revealed their true character as challenges - the Third Party required all live Lead Claimants (and Mr Mellor) to undergo medical examination by a RS of their choosing (Dr Stenton). In deceased claims, further examination of medical documents relating to those deceased was also performed. The consequences of these re-examinations were to be that there were challenges to every assessment which had been made by the RSs who had taken part in the MAP of the claims in respect of all eight Lead Claimants. The Defendants led evidence from the RS who examined and reported by way of the MAP form on each such Claimant. Dr Stenton was also called to give oral evidence on behalf of the Third Party. There was extensive examination of the workings of the CHA and the steps taken to amend it, to audit its operation, both generally and also with respect to the individual RSs. The evidence in respect of the individual Claimants and the estates’ claims will be examined in the section of the judgment entitled Medical disputes (Chapter 8).

Schedule 10 of the CHA contains the tariffs for general and special damages which are schemed. The provisions contained in this schedule are comprehensive, detailed and complex. Fortunately, they need not detain us, since no issue arises in connection with them in these proceedings. The Third Party raised no issue in respect of the amounts contained in these tariffs It will be remembered, however, that in the original judgment, there was much discussion about how the apportionment of damages should be achieved. The need for this arose out of the diversity of factors such as the numbers of years underground, the impact of limitation in respect of employment before 6 June 1954, respirators, smoking and job factors (by which an attempt was made to reflect the fact that different categories of underground employments in different coalfields would have undergone varying exposures to harmful (tortious) dust). It is implicit from this last variable that illness resulting from exposure to respirable dust, which was at or below the irreducible minimum, would not, therefore, yield any entitlement to compensation.

Schedule 11 apportions awards by a methodology which takes into account factors such as:

(a)

The Claimant's exposure to dust and the effects of smoking tobacco products.

Pneumoconiosis X-ray (PXR) data is used to estimate levels of dustiness at each colliery.

The Claimant's smoking history is divided into periods of:

(i)

Non-smoking;

(ii)

Light smoking: less than 15 ready made cigarettes per day …

(iii)

Average smoking: 15-24 cigarettes per day …

(iv)

Heavy smoking: 25 or more ready made cigarettes per day …

The basic equivalence is that one year's heavy dust exposure equates to one year's average smoking.

(b)

The number of years spent working underground in coal mines prior to 4 June 1954 as compared with the number of years spent working underground … after (the same date).

(c)

The amount of tortious dust it is assumed the Claimant will have been exposed to will depend on the area in which the collieries worked at were situated and the periods during which he was employed.

A table has been prepared which specifies different mining areas and the assumed tortious exposure to dust in those areas for sequential 5 year periods. The figures contained in the table are in turn derived from the PXR data which were obtained by the Defendants for those same areas and periods as part of their long running research programme into the causes of lung diseases in miners. Thus, a percentage figure is arrived at which is then applied to the provisional award in order to arrive at the final award. Provision is also made in respect of the different jobs (job factors) which a claimant may have performed when underground since these will have affected his cumulative exposure. The PXR data are averages for all men, surface as well as underground. This data took no account of the different exposures to which the men will actually have been exposed by reason of their jobs. The inevitable result of this process of averaging is that some men will be compensated where no relevant injury was caused. Others will have been under-compensated because their exposure was greater than the norm. Yet others will be over-compensated because their actual exposure was less than the norm. In order to reach a figure which would be fair to a claimant, this is then converted into factors as follows:

An uplift to all underground workers job factors, since the PXR data included surface workers, who were not exposed to high concentrations of dust. In practice this means that in the case of a face worker, he will have applied to the relevant PXR data for his pit, as adjusted individually (as above), a multiplier of 1.5 to provide a figure of tortious dust in his case. The actual exposure for any given miner will not be reflected in the award he receives.

Allowance is then made for men employed for short periods, only, underground. Finally, in terms of allowances, provision is made for respirators, more properly dust mask, use or otherwise. This is in the following terms:

(c)

The potential that the Claimant's job provided for the use of respirators. Repsirators should have been provided and worn from 1965 (-1985) onwards and failure to have provided and ensured the wearing of respirators (during this period) will result in the conversion of innocent dust to tortious dust according to the following table:

Face workers (hand filling)	15%
Rippers and packers	15%
Face worker mechanised	25%
Development worker	40%
Overmen/Deputies	30%
Underground craftsmen	40%
Conveyor/haulage attendant	50%
Other occupations underground	40%
Posthumous claims	33%
Bord and Pillar working	15%

(3)

A progressive cap is placed upon the effect of the respirator factor in the sense that any consequent increase in the overall tortious dust figure in excess of 10% will be halved),

(4)

The apportionment for each of the above factors will be calculated by the use of a computerised model to determine the recoverable proportion of quantum for claimants. The following information will be entered into the model:

(a)

An agreed employment history; and

(b)

The smoking history as verified by the respiratory specialist.

Express provision is made for amendment of the computer programme in the light of experience from time to time.

Enough has been written above to indicate that the task of devising a scheme for the assessment of compensation which would be fair to both parties under a practical administrative framework was likely to prove contentious and of extreme difficulty. That a scheme was in the end formulated, it had taken some 18 months or so from the date when the original judgment had been given, is testament to the endeavours of all those involved to reach a just settlement. As a matter of history, the scheme was put before me and approved on 24 September 1999. At a later stage the scheme was again subjected to judicial scrutiny in the case of Tasker v British Coal, a case in which the Court's approval had been sought in the case of a miner who was under disability. Curtis J gave his approval on 24 April 2001. That matter had been allocated to Curtis J, rather than to myself, because of the sensitive nature of the material which had to be disclosed to him. This was necessary so that he could give his approval to the internal reasonableness of the settlement. There were matters of negotiation which were revealed to Curtis J which could not be revealed to me, in case at some future date I should be required to adjudicate upon certain details contained in the CHA.

The nature of the complexities of the scheme from a medical point of view were explained in a joint statement made by Drs Rudd and Moore-Gillon [F1 p1]. That in most respects, the statement was not controversial, makes it unnecessary to refer to it in substantial detail. Important factors to be taken into account, however, were the numbers of claims which were anticipated would be made under the scheme, although in the event these were substantially under-estimated by a factor greater than five. There was then the recognition that, in order to process the quantity of claims expected, there would have to be a recruitment of large numbers of qualified RSs who, alone, would by virtue of their experience be able to conduct the MAP in a manner which would be fair to all parties. The process could not permit each party to appoint their own specialist; there were or are not enough RSs with the appropriate qualifications for that to have been done. The RS concerned is required to conduct his examination and report with the concept of fairness to both parties uppermost in his mind. The nature of the examination and report were that they were to be made in the context of a claimant suffering from a long term disease process with the requirement that both a retrospective, as well as a prospective, estimate of its likely progression should be made. The nature of the effect of COPD, that is breathlessness, is one which can be caused or contributed to by other medical conditions which have to be isolated and separately apportioned as to their assumed effect. This is a crucial element in framing the opinion and report of the RS. There are further issues such as handicap on the labour market and the need for care and assistance which the RS may have to consider since his decision may trigger awards which are schemed in the CHA in respect of one or more of these heads of claim. Finally, there are the reciprocal concepts of loss of expectation of life in the live Claimant and the shortening of life in the case of a deceased miner both features having to be assessed in the appropriate case. An additional factor, which had to find its way into the agreement, was the need to ensure consistency of approach as between one specialist and another.

A decision was taken that, such were the complexities of the individual case, a live examination of those who rejected the scheme for accelerated payments (see above) was a practical necessity. In deceased claims, there is, of course no possibility of examination as such, the process has to be entirely paper based. Of necessity, the assessments in such cases are more speculative than with live Claimants.

The joint statement also contains a rationale for the development of the scale of disability (see above). Importantly, the authors wrote F2/1 p7:

This scale … suggests the disability assessment which should be made when … various (specified) limitations are present. It gives further guidance in terms of bands of objectively measured lung function impairment (none, mild, moderate and severe) which should be expected to be present at varying levels of disability.

As in all such cases, it is still necessary for the respiratory specialist to exercise his/her clinical judgment: the assessment depends not just upon the statement of the Claimant and the measured lung function, but also upon the review of the records and upon the medical assessment of the Claimant. The exercise of judgment and experience is particularly important when projecting both backwards and forwards for estimates of past and future disability.

The statement then addresses the problem which would arise if there were to be a lack of consistency in relation to the assessment of the reasonableness of the claim in respect of loss of employment, the need for care services and expenditure incurred in mitigating the effects of disability. So it is that the CHA made provision that at specific levels of disability the Claimant will be entitled to claim compensation for a change in jobs, the provision and use of care services or incur expenses or as the case might be. This provides another example where the schemed nature of these awards may work for, or against, an individual claimant in so far that his award of compensation may be the same as, more than or less that a comparable common law award of damages.

Before any RS was deployed on MAP work, he/she underwent specific training in the completion of the MAP form and observation of the process in practice; “accreditation”. The procedure, then, is for the first five reports from any one specialist to be scrutinised in detail by a senior medical adviser before accreditation is finally granted. A system of objective periodic checks is in place to ensure the continuing efficacy of the process as a whole. There are, thus, quality control checks on individual MAP forms with a view to detecting omissions or inconsistencies.

When complete the MAP report form itself is examined both by IRISC and the Claimant's solicitor. A technical check is then performed on the arithmetical content in the form. There is also provision for quality control checks to be carried out

Within the scheme of the CHA, there is a medical reference panel (MRP) charged with the duty to provide impartial medical advice to the parties, to audit the efficacy of the process as a whole and, if required, to be the final decision makers in the event of there being a dispute in regard to any medical matter. There is also provision for audit in the form of an Outcome Monitoring Exercise, which enables the MRP to identify emerging trends such as rising or falling percentages of awards being made, also whether individual specialists are diagnosing in accordance with general trends or not. There is, finally, a routine audit of a sample of reports submitted to the MRP on a biannual basis.

The joint report ends with a summary which includes the following statement F2/1 p13¶6:

There was challenge to this Olympian view of the MAP process in the respect that there was a lack of clarity in instructions issued to RSs when they came to deal with co-morbid non-respiratory conditions. It was the view of Dr Rudd that a RS could be left to mention such a condition in the MAP form, although he would not be expected to step outside his specialist field and assess the relative impact of a co-morbid non-respiratory condition as compared with a respiratory condition. It would be for the loss adjuster (IRISC) to note the existence of such a condition and make whatever adjustment was necessary and reflect it in the award.

Another area of concern (challenge) arose out of the changes made to the Guidance Notes to RSs in respect of the diagnosis of chronic bronchitis. These changes had been made in the light of experience in the operation of the CHA and demonstrate its dynamic quality. It will be recalled that as the form had originally been devised, unless there were special circumstances, the RS was expected to look for corroboration of chronic bronchitis in the Claimant’s medical records. There was also a section in the MAP form, which the specialist was expected to complete, to confirm that corroboration did exist. In practice, this requirement had been found to work injustice against those men who were of firmer character than some, who accepted cough and the production of sputum as facts of underground mining life and did not attend their general practitioner presenting with these as complaints frequently, or at all. So the requirement was dropped from later editions of the form and in the instructions to RSs. This led to anxieties on the part of the DTI that chronic bronchitis was being over-diagnosed and by the Third Party that the claim for contribution against them was unreasonably inflated to the like extent.

In addition to these points, when consideration came to be given to the MAP forms on the individual Lead Claimants, it was the case for the Third Party, supported by evidence from Dr Stenton, that there were examples of erroneous diagnosis or assessment in each and every one of the cases, such as to demonstrate that the process was flawed both as devised and in its operation. This last aspect will be considered when the individual cases are discussed below. It is, however, necessary to consider whether, if the challenges are found to have been well made, they would afford any ground for reducing the extent of the Defendants’ claim for contribution. The reason for the existence of this apparent anomaly would lie in the fact that it is not the reasonableness of the individual settlement that matters, but whether the scheme which is represented by the CHA does represent a reasonable attempt, when viewed as a whole, to provide a settlement of the liability of the DTI to the cohort of claimants in the BCRDL. One consequence which would flow, if the Third Party is held liable to make contribution, and also entitled to make individual challenges to assessments, would be that in all cases it the Third Party would be able to reopen the assessment process and delay the attempt by the DTI to enforce the Third Party’s potential and consequent liability. How far that should be a consideration must await discussion and decision later in this judgment.

It is of crucial importance to the future course of this litigation, if the Third Party are found to be under any liability to contribute, to determine whether and, if so, how far the Defendants can rely upon the CHA as an agreement to “make any payment in bona fide settlement or compromise of any claim made against him as constituting ‘damage’”, in respect of which they are entitled to make a claim for contribution for the purposes of section 1(1) and (4) of the Civil Liability (Contribution) Act 1978. Alternatively, the question may be whether or not the Defendants can be permitted to rely on the assessment of claims under the CHA for the purposes of recovery of damages for breach of contract or indemnity, if statutory contribution is not a remedy available to the Defendants. If it were otherwise, the necessity that the Defendants should receive some form of monetary restitution as the result of the Third Party’s breaches of contract, the law will be seen to have failed.

As a matter of history, at the time of the original judgment, it was believed that there were some 2,500 claims were awaiting the outcome of the Griffiths litigation. Shortly after the judgment, a deluge of further claims occurred. Under Orders made during the interlocutory stages of the Griffiths litigation, and renewed from time to time, all claims were brought within the umbrella of Orders of the Court and stayed. It was provided by the Order made on 29 July 1999 that the claims could only be advanced through the mechanism of registration of the claim and subsequently processed through the CHA. [When Griffiths was in its interlocutory stages, registration was not a concept for which the rules made specific provision. Since the CPR came into effect, registration is a necessary incident of group litigation].

In their closing submissions, the Third Party stated their position in regard to the CHA as being:

The good sense and necessity of creating a scheme for the handling of COPD claims is not and never has been questioned by the Third Party. The Third Party having come late to the long running engagement of the Defendants and Claimant, acknowledge the considerable effort involved in devising and implementing the scheme.

That said, these lead cases reveal a fundamental flaw attaching to the issue of co-morbidity. The Third Party believe that they can offer constructive suggestions in relation to that scheme which reflect both the common law principles of assessment of damages (in relation to co-morbidity) and an appropriate (well intended and … constructive) approach to the assessment of claims within a scheme.

Despite the conciliatory nature of this stated position, the Third Party denied that it was bound by the terms of the CHA or affected by the fact that judicial approval to the scheme had been given on two occasions, both by Curtis J (in respect of disability cases) and by myself. In this litigation, the nature and effect of the CHA is of fundamental importance. It has provided the basis of compensation to many thousands of miners or ex-miners and will continue to do so, until all cases within the scheme have been disposed of. It is also the basis, in the sense of quantification in money terms, of the current claims for compensation for disability caused by the fault of one or other of the parties. The stance adopted by the Third Party has throughout been an ambiguous one, which would have fallen foul of the expression that “you cannot both approbate and reprobate”. The uncertainty revealed by the above quotation from leading counsel’s submissions was embarrassing to the Court as well as to the Defendants. The purpose of this section of the judgment is to examine the question whether the Third Party is to be held to be bound by the terms of the agreement and what the consequences of such a decision would be. It will not have escaped attention that the overall reasonableness of the CHA was not put in issue. Nor yet was it put in issue that it was reasonable of the original plaintiffs (claimants) to have entered into some scheme for the non-forensic assessment of the compensation to which they were held to be entitled by the original judgment. A necessary consequence of this position is that some form of scheme for the assessment of compensation was a necessity.

Because of the continuing uncertainty over the position of the Third Party in relation to the CHA, on Day 20 of the current trial, the Third Party was ordered to prepare and serve a re-amended defence and counterclaim 28 days after the Defendants had been ordered to provide additional disclosure in respect of amendments which had been made from time to time to the Guidance Notes issued to the RSs who conducted the MAPs. In the re-amended document, the Third Party attempted to set out its stall in relation to the question of the reasonableness of the CHA. The original pleading had merely “not admitted” that the CHA provided for a reasonable settlement for the purposes of the Defendants’ claim for contribution under the Act of 1978 and thus provided no clue what was its real position in regard to it. In their re-amended pleading the Third Party asserted that “for the purposes only of these 8 individual claims” it is its case that:

The manner in which (the CHA) was implemented or operated does not reflect how the claim would have been dealt with at common law and thereby provided the claimant with compensation which would not otherwise have been awarded in two specific respects, namely, the handling and settlement of claims concerning chronic bronchitis and/or non cardio-respiratory co-morbid conditions which were themselves disabling but which did not themselves contribute to the claimant’s overall disability.

Two pages of pleading were then devoted to chronic bronchitis. In summary, these complaints amounted to criticism of the way in which respiratory specialists had been instructed to carry out the MAP examination in the Notes for Guidance or they had recorded their findings after their examination. One way of interpreting this submission is that is not the Third Party’s case, in law, they could not be bound by the CHA because they had not been parties to it. Implicitly, it seems to have been recognised that if the scheme of the CHA had met the criterion of reasonableness, as they would see it, they would have been (query: content to have been) bound by it, whether or not they would have wanted that solution. Specifically, it was said that, a diagnosis that an individual miner was suffering from chronic bronchitis ought not to have been made in the absence of contemporaneous corroboration in the medical records (as the original Notes for Guidance had required), alternatively there ought not to have been any uncritical acceptance of the statement by a claimant that that was what he suffered from symptoms which would justify the diagnosis of chronic bronchitis. Furthermore, it would have been quite unacceptable for any respiratory specialist to have proceeded to his diagnosis “by giving the benefit of the doubt” to the claimant. It should be noted that it has never been part of the scheme either in theory or in practice that a claim should be determined on such a basis. In two instances (see below, Chapter 8) the Third Party made such a suggestion.

If, or to the extent that, any RS had performed his duties under the CHA in such a manner, it would follow that his assessment had not been a valid exercise of clinical judgment, which, it will be recalled, was one of the matters covered in the Notes for Guidance. As to non cardio-respiratory conditions which were disabling, but which did not impact on a claimant’s overall respiratory disability, it was contended that account was not taken in the MAP of the existence of such a condition when it impacted on overall, as opposed to respiratory, disability. The consequence of this was that under the provisions of the CHA, there was over-compensation for any financial losses which were attributable to such a condition. It will be recalled that the Notes for Guidance also covered this point. Furthermore, if the RS raised no comment in regard to such a matter, the evidence was that it was a matter which should have been noted by the assessor at IRISC.

However, on Day 35, in answer to a question from the Court, Mr Owen QC said that (pace his pleading), he was not seeking to advance a generic case in respect of chronic bronchitis. His case simply was that there were challenges, in four only out of the eight lead cases, in which his contention was no more than that the diagnoses in those four had not been properly made in accordance with the Guidance Notes in the CHA. In the course of discussions, which continued into the following day, Mr Owen QC, was constrained into accepting that he was mounting a generic challenge. Given that the vast majority of the claims which have been received, are in respect of chronic bronchitis only, I declined to permit Mr Owen QC to depart from his re-amended pleading about chronic bronchitis. Had he been permitted to assert that the only challenges to the diagnosis of chronic bronchitis were individual, the consequence would have been that, in the event that the Third Party is hereafter to be ordered to make contribution, it would have been open to them to challenge every other case in which an award of compensation in respect of that condition had been, or will in future be, made. The substantial purpose of selecting eight lead actions was to enable generic, and therefore binding, findings to be made, so that hereafter there could not be any challenge to the methodology of the CHA approach to the diagnosis of chronic bronchitis. Precisely similar considerations apply with regard to the diagnosis of COPD.

One of the key questions for decision is how the court should respond to or give effect to such challenges. The Defendants’ response by way of submissions was encapsulated by the propositions underlying the following questions:

It will assist in gaining an understanding of the problem, and its solution, if it is explained more particularly why it was decided to approach the disposal of individual claims in the way in which it was provided in the CHA. In the light of the massive numbers of claims which had already been made and which were anticipated, there was an overriding necessity to reduce the amount of litigation which would otherwise have been generated. Secondly there was a need to have regard to resource implications (provision of judges, courts, legal teams), not just in terms of the administration of any scheme which would have been necessary to dispose of the claims, but also to have regard to the availability of RSs in the mining areas in which claimants lived. Since many claimants were quite seriously ill, they would have to be examined by RSs who needed to be able to access the examination facilities which are located, reasonably conveniently to the claimants, in or near the traditional mining areas. It should be noted that domiciliary visits are also provided for those claimants who are too ill to travel. These problems obviously do not arise with the deceased claims, since they could be assessed, as they have been, by RSs from parts of the country remote from the mining areas. As a matter of certainty, based in part on the experience of the Court in reviewing progress of settlement of claims under the CHA, it would not have been remotely practicable to have preserved the common law situation in which each party would instruct its own expert. Similarly, the fact that there are centralised facilities both for documenting employment histories and obtaining medical records favour a centralised method for assessing compensation.

Any attempt to dispose of such a volume of cases through conventional common law procedures would also have introduced the inevitability of delay in ensuring that compensation reached the neediest first and that, thereafter, there was a reasonable basis for prioritisation of claims, including the ability to make interim payments in situations where, at common law, such would either not have been possible or would have been unworkable. A further great advantage of the scheme provided by the CHA was the ability of the parties to devise a computer based system (as to which see later) for analysing and systematising the various elements in the claims for the complicated process of making assessments of compensation which could be operated by lay assessors. The assessors, employed by IRISC had received a training which would enable them, in a reasonably expeditious manner, to collate the essential medical details after they had become available through the MAP. Undoubtedly also, and importantly, the fact that compensation under different heads was schemed within the CHA enables a degree of demonstrable consistency in the individual awards to be achieved. Fairness as between miner and miner is manifest by reference only to the provisions in this respect that are contained in the agreement. However, in respects which become clear, when discussion takes place in regard to the awards made to the Lead Claimants in this litigation, the Third Party argue for the scheme compensation to be compared with common law standards for awards of damages on an individualised basis, and to be judged accordingly. The argument proceeded along the lines that provided, in any given case, the award did not exceed what would have been awarded at common law, that award could form the basis of a claim for contribution. If, however the award, as calculated under the scheme exceeded the common law figure, then the Defendants were limited to the common law amount in terms of their recovery of contribution. No allowance could be made for the fact that in some cases under the scheme, awards might be reduced as compared with common law while in others they might exceed such amounts.

In this approach, there was not only an element of “cherry picking” the best (most favourable) parts of the CHA, a process sometimes called “blowing hot and cold”, but more importantly there is an inherent inconsistency and lack of logical coherence about it. This criticism has already been mentioned, but should now, perhaps, be made good.

When first the Third Party became acquainted with the CHA, it did not immediately distance itself from its provisions. It was not apparent from the first acquaintance which the Third Party had with this litigation, and their possible exposure to the CHA, that they would not agree that they should be bound by any of the provisions which had been devised to deal, in a practical manner, with the numbers of claims coming forward. Such a stance would have been intellectually comprehensible. Instead, the strategy has been to pick away at various aspects of the CHA, now reduced to two, in respect of which the third party confine their objection. These will be considered in the following parts of the judgment. But there is an aura of an unrefined element of opportunism and uncertainty in the way in which the Third Party has declared its position on this issue. This has provided a shaky foundation for their final submission which was to recognise that one of the questions which the Court was likely to want to provide the answer was:

… whether this court should in some way impose on the third party within the findings of the judgment in this case either the CHA or some comparable [format]. [62:47:3]

and in answer to the question which had been posed by the Court, namely whether the word “settlement” is settlement of the individual case or a method of the settlement of all the many cases, the submission was expanded to:

The word ‘settlement’ must necessarily mean, and only mean, the settlement in the individual case which is before (the Court) … The CHA does not constitute a settlement within the meaning of the Act. It is not a settlement at all. It is a procedure, agreed by the parties [to it], to facilitate the means of procuring a settlement. What (the CHA) does is to provide an alternative dispute resolution procedure; the claims are not settled, they are stayed. The claims form (as in legal proceedings) has been substituted by the claims questionnaire. … there is room for negotiation … So …: ‘settlement’ must mean the individual settlement and that the reasonableness of that settlement will be determined in accordance with established common law principles set out in Biggin and other cases. … that is not to say, and we have never suggested, that the existence of the CHA and what it provides is not a material background circumstance. Because, plainly it is. [62:50:15]

It was again submitted that the present agreement was flawed in that it did not deal appropriately with chronic bronchitis and co-morbid non-respiratory conditions. This was in the sense that there was no insistence upon a requirement for corroboration of the former and, as to the latter, the RS was not required specifically to identify the presence of such a condition on the MAP report form. It was then a matter of chance if IRISC would pick up the existence of such a condition and, if it did, how it would then deal with it.

The Third Party had set out its stall in its opening statement, albeit uncertainties and inconsistencies as to its decision to adhere to it surfaced from time to time in the course of the hearing; see Days 5,37 and 62. The final distillation of their position was essentially as follows:

It was submitted by the Third Party that it would not be proper for the Court to impose the agreement on the Third Party, when they had not been a parties to its formulation. Unlike the position of an individual claimant who was subject to a derogation from his common law rights just by the making of a claim which fell, either to be stayed under the order of the Court (above) or had to proceed under the aegis of the CHA, it would not be right to curtail any of the Third Party’s rights, principally to contend that any scheme which did not replicate all the principles of assessment of common law damages could not be held to be binding on them.

If it be held that the Third Party are liable to make contribution, the problem would arise how the order of contribution would be enforced in practice. If judgment should be given in favour of the Defendants, how would the parties, or the Court be able to manage the resulting mass of claims between the parties to the present litigation? Is this a relevant factor for the Court in reaching its decision in these proceedings? The Third Party contended that the Court should not concern itself with such matters. At this stage I propose to take note of these points, rather than to decide them.

The Defendants’ submitted that they were entitled to recover contribution under section 1(4) of the Act (statutory contribution) if they could demonstrate that the settlement had been made in good faith. Thus what they needed to show in order to recover statutory contribution was:

In the present litigation, the only issues raised as to amount were in relation to the specific medical issues and their financial consequences which are discussed elsewhere in this judgment. Consequently, the Defendants further submission was that where the Court is concerned with a claim for statutory contribution, all that the Court has to do is, first, to investigate the genuineness (bona fides) of the settlement or compromise at the time when it was made and, secondly, the reasonableness of the amount of the contribution which the Third Party should be ordered to pay. This part of their submission concluded:

For the purposes of this case, the defendants are prepared to accept that no distinction need be made between what is bona fide and what is reasonable although it is submitted that any argument advanced as to the unreasonableness of any settlement or any aspect of any settlement must be such as to enable the court to conclude that it was such as to render the settlement lacking in bona fides.

The Third Party position was that this submission was quite simply wrong, and that, when determining the liability or the extent of the liability to be ordered to make contribution in any given case, it is not competent for the Court to have regard to the overall reasonableness of the method of assessing claims embodied in the CHA. It was quite simply irrelevant. This submission lies uneasily with the qualified respect (see paragraph 65, above) which was accorded to the CHA as a concept for handling all the claims which have arisen. The Third Party submitted that what was missing from the Defendants’ formulation was any reference to the concept of the objective reasonableness of the settlement under scrutiny and recognition of the necessity that the sum recovered would have been no more than that which could have been recovered if the action had proceeded as one at common law. The Defendant's approach, it was said, ignored that completely. Inconsistently with their main submission, as I think, the Third Party expressly did not dispute that it would have been reasonable to have employed a (different form of) CHA as the basis of settlement of group litigation, provided always the damages would have been the same as those which would have been awarded at common law. What this argument fails to recognise is that short of an action at common law, it is wholly impracticable for compensation awarded under a scheme to replicate in all its essentials what would have been the amount of compensation if a common law action had been brought. Unless, therefore, the result of the application of the scheme was always to reduce the claim below common law damages, it would always fail for lack of reasonableness.

As just indicated, the assessments made through the mechanism of the CHA are intended to bear a similarity to, but plainly cannot replicate, a claim which has been made at common law. Albeit because of the schemed features in the agreement, there are differences which are bound to affect the amount of recovery in the individual cases. What such a scheme may do, as this one does, is to provide a reasonably expeditious means of disposing of claims economically, consistently and fairly, without any disproportionate expenditure in costs. The costs, which are recoverable from the DTI, are fixed by the agreement. Provision is also made so that, ordinarily, no additional costs may properly be recovered from any claimant. As already noted, there will be some cases, where the amount of compensation awarded will be in excess of the sums recoverable at common law, but this is far from being inevitably the case. Examples of both features will appear in various guises during the course of this judgment.

The legal effect of the stay of proceedings and the procedure for assessing claims under the agreement can be presented as modification, or abrogation, of the right of an intending claimant to bring his claim at common law and seek the decision of the Court on questions both as to liability and amount. It is relevant to establish how this derogation from the common law, with substantive rights in play, can validly have been effected by what may appear to be procedural means alone. It was said in the case of AB v. John Wyeth and Brothers Ltd [1993] 4 Med LR 1 that it is in the nature of Group Litigation that the Court is able to exercise powers which are not ordinarily available to it in a unitary action. The reasons for the existence of the inherent power of the Court to control litigation which is proceeding before it had been cogently expounded by Lord Diplock in Bremer Vulkan v. South India Shipping [1981] 2 WLR 141 where at p147 he had said:

The High Court’s power … is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. Every civilised system of government requires that the state should make available for its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of the alleged breach of his legal or equitable rights by some other citizen the defendant. Whether or not to avail himself of this right of access to the court lies exclusively within the plaintiff’s choice; if he chooses to do so, the defendant has no option in the matter; his subjection to the jurisdiction of the court is compulsory. So, it would stultify the constitutional role of the High Court as a court of justice if it were not armed to prevent its process being misused in such a way as to diminish its capability of arriving at a just decision of the dispute.

Having referred to the above passage, Steyn LJ in the AB case went on to say at p6 col. 1:

I know of no better summary of the extent of the inherent jurisdiction of the High Court than that given by Sir Jack Jacob in a seminal paper: …

‘… the inherent jurisdiction of the court may be defined as a the reserve fund of powers, a residual source of powers, which the court may draw upon whenever it is just and equitable to do so, and in particular to ensure the observance of the due process of the law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.’

… The procedural powers of a judge in control of a group action are not tied to transitional procedures. Subject to the duty to act fairly, the judge may and often must improvise: sometimes that will involve the adoption of entirely new procedures. The judge’s procedural powers in group actions are untrammelled by the distinctive features of the adversarial system. The judge’s powers are as wide as may be necessary to control the litigation fairly and efficiently. (emphasis added)

In the AB case, the exercise of procedural powers did in fact impact on the substantive rights of intending claimants and, therefore extended beyond ‘transitional procedures’. But this did not inhibit the Court, in the exercise of those powers, from making orders, which were intended for the better management of the cases before it. The overwhelmingly distinctive feature of the current litigation is the uniquely large volume of claims which have to be attenuated by means of a settlement process either by the Court or by way of an administrative scheme. It is this feature which was the driving force behind the creation of the CHA. It is also this feature which required the Court, in the exercise of its inherent power to manage this group litigation, to give its approval to the CHA, so that other business in the Courts would not be incommoded by the existence of the large number of claims which needed, and still need, whether by means of adjudication or mediation, disposal under the auspices of the CHA. There was, and is, a wide public interest in the removal of this mass of litigation from the public to the private arena. What must be of concern to the Court at this stage is, that if the Third Party is found to be under any liability in these proceedings, how the resulting issues in regard to awards in individual cases are to be resolved between the present parties. An equally pressing consideration is that if it be held that “settlement” for the purposes of statutory contribution can only mean settlement in an individual case, the Third Party will have the right as between themselves and the Defendants to challenge the validity of many tens of thousands of awards which have already been made and those which are still awaiting. The Defendants might be inhibited from settling any outstanding claims where there is contractor involvement because of the difficulty of establishing their right to claim contribution in an amount which will match, or be reasonably consistent with, the amount which would have been determined under the CHA. If the Third Party are not to be bound into the settlement process as represented by the CHA, there would, for example, be no practical alternative mechanism available to compel the further attendance of any claimant to re-attend for examination the purposes of some new or modified form of MAP. Unless such was done, the exercise of assessment might have to be conducted, in a less than satisfactory way, as a paper exercise. Even were that to be adopted as a method of proceeding towards settlement, the obvious imperfections and injustice to the Defendants would be apparent. The Defendants would be bound by the MAP and IRISC assessment, there would be no means of making a medical assessment so far as the Third Party was concerned, the consequence could be seen to be completely unfair to, as well as probably unsatisfactory for, both parties.

Of course, it may be said that the Defendants should have seen this problem before it has reached its present acute form. On the other hand, until the third Party had become involved in these proceedings, they had no standing to make any representations in regard to the method or content of the CHA. It is interesting to note that at the hearing, 28 July 1999, at which the Court gave its approval to the CHA the Third Party were present and named as a Defendant in the proceedings which had been brought by means of an application. However, so far as the Court is aware, the Third Party was never invited to make any contribution to any of the terms of the CHA nor did it at any stage apply for a review of the agreement on the grounds that it was inappropriate or unfair in any respect. Indeed, given the Third Party’s historical open reluctance to “sign up to” the CHA, this is why the parties are where they now are. In my judgment, there is a need for early finality to the scope for numberless disputes about individual awards to individual claimants, which arguably may necessitate the Court, in the exercise of its inherent powers, to impose a pragmatic solution on the parties if it should find that (1) the Third Party is liable at all and (2) the CHA is found to be deficient in any of the respects contended by the Third Party so that a degree of fairness is imparted to the proceedings, tempered by the need to advance the litigation.

Because of the increasing numbers of claims, the original parties to the litigation and the Defendants successors (DTI) embarked on a discussion process, the culmination of which, as is known, was the first edition of the CHA contained in the O series of documents in the present litigation. Its objects, relevant for the present discussion, were set out in its Introduction:

1.

… Plaintiffs have brought claims (for damages) for personal injury, loss and damage against British Coal Corporation … alleging that various respiratory illnesses were caused by tortious exposure to mixed mine dust … during the course of the Plaintiffs' various employments with BCC … from 1947 onwards.

2.

…

3.

…

4.

In excess of 70,000 Claimants have lodged claims and further claims are anticipated.

5.

The parties have agreed a procedure for the fair, consistent and expeditious assessment of claims, and for the payment of damages where appropriate.

6.

It is the intention of the Parties to settle claims under the (CHA). Whilst procedures for the resolution of disputes are provided for it is intended that they shall be used infrequently.

ACCORDINGLY the parties agree that the DTI will offer the following terms for the disposal of claims to Claimants represented by members of the BCC Respiratory Disease Litigation Solicitors Group (CSG) … . If the DTI wish to offer different terms to third parties within England and Wales … they may do so only if those terms are first offered to the CSG. … .

From this preamble to the CHA it is possible to construct an argument that the agreement itself represents the settlement of claims in the sense that, given the procedural provisions to be found in the Agreement, the means by which any one claim is disposed of is a mechanical process which, following evaluation of the relevant medical condition, will inevitably lead to a disposal of the claim in a pre-determined sum.

The particular provisions of the CHA, which are germane to these proceedings, have been previously identified. In support of the reasonableness of the scheme as a whole, the Defendants submitted:

The Third Party relied on a number of specific criticisms of the CHA, both in opening its case and in final submission. Thus:

This part of the judgment is concerned with the question which is in a sense central to its determination on the issue of recovery from the Third Party. That question is the weight, if any, which should be given to the fact, that for reasons which seemed good to the Claimants’ representatives and the Defendants, they entered into the CHA as a means of evaluating and disposing economically the claims to which, once a qualifying medical condition had been diagnosed, there was no answer in law. Consistent with the duty of the Court to deal with cases brought before it in ways which are just and proportionate (see part 1.1 CPR as above), it should do what it can to encourage parties only to litigate what cannot be reasonably disposed of by other means, whether those be by way of arbitration, mediation, administrative scheme or howsoever.

That the Court has long encouraged parties to settle is well illustrated by the case of Biggin & Co Ltd v. Permanite Ltd [1951] 2 KB 314. This was a contract case in which one party had settled its case against another contracting party which was the sub-purchaser and then sought to recover its losses from its suppliers. The trial judge (Devlin J) had ruled that the settlement was wholly irrelevant and inadmissible in evidence in the case. The holding in the Court of Appeal was:

The amount paid under the settlement being an upper limit prima facie led to the conclusion that, if reasonable, it should be taken as the measure of damages, and whether or not it was reasonable, was a question to be determined by the evidence; and that in the circumstances this evidence established that it was reasonable.

In the course of his judgment, Somervell LJ said at p321:

I think, though (the settlement) is not conclusive, that the fact that it is admittedly an upper limit would lead to the conclusion that, if reasonable, it should be taken as the measure. The result of the judge’s conclusion is that the plaintiffs must prove their damages strictly … and if that involves … a very complicated and expensive inquiry, still that has to be done. The law, in my opinion, encourages reasonable settlements, particularly where, as here, strict proof would be a very expensive matter. The question, in my opinion is: what evidence is necessary to establish reasonableness? I think it is relevant to prove that the settlement was made under advice legally taken. … . The plaintiff must, I think, lead evidence, which can be cross-examined to, as to facts which the witnesses themselves prove and as to what would probably be proved if, as here, the arbitration had proceeded, so that the court can come to the conclusion whether or not the sum paid was reasonable. … . (The defendant) might in some cases show that some vital matter had been overlooked. … if there is evidence at the end of the matter of the kind which I have indicated, on which the court can come to a conclusion that this was a reasonable settlement in the circumstances, then I think that it should be the measure. Parties, as Bowen LJ said, have been held to contemplate litigation in the sort of circumstances which have arisen here. It would, I think, be unfortunate if they were not also held to contemplate reasonable settlements in the type of circumstances which have arisen here.

In the same case Singleton LJ said at p325:

Before the court can award a sum as damages, there must be evidence on which it can act. Therefore, in a case such as this, the plaintiffs must call evidence to establish their case. |If the evidence which they call satisfies the judge … that the settlement was a reasonable one, the damages awarded will be the amount of the settlement and the costs reasonably incurred. … the duty of the judges at the trial is to determine the damages, and the facts proved before him might be quite different from those known. at the time of the advice to settle for so much. The trial judge must make up his own mind on the facts he finds proved before him. … . It is a matter for consideration that the settlement was arrived at under advice, the more so as the party settling may be quite uncertain whether he can recover anything against someone else. If, upon the evidence, the judge is satisfied that the damages would be somewhere around the figure at which the plaintiffs have settled, he would be justified in awarding the settlement figure. … The position is much the same, though perhaps not quite so strong, as in a case in which damages have been assessed in a suit between other parties involving the same facts. The judgment is not binding, but the court will not lightly disregard it in the absence of fresh evidence or new factors. [p326] The question is not whether the plaintiffs acted reasonably in settling the claim, but whether the settlement is a reasonable one; and, in considering it, the court is entitled to bear in mind the fact that costs would grow everyday the litigation continued. That is one reason for saying there is sufficient for the purposes of the plaintiffs if they satisfy the judge that somewhere around the figure of settlement would have been awarded as damages.

It is, of course, necessary to bear in mind that Biggin was a breach of contract case, in which the measure of damages is not necessarily the same as in tort. On the other hand, it should not be overlooked here that, in addition to the claim under the Act of 1978, the Defendants are also claiming damages for the consequences of breaches of contract committed by, as well as contractual indemnity from, the Third Party. Nevertheless, for reasons which have been set out at length, above, I have been satisfied that the awards of compensation made under the provisions of the CHA are “somewhere around” the figure which would have been awarded as damages as if the case had proceeded at common law.

In the course of the hearing reference was also made to Fletcher & Stewart Ltd v. Peter Jay & Partners 17 BLR 41 which was a case in which it had been submitted that Biggin decided that a reasonable settlement covered both the liability of the Third Party to make contribution and the amount of that contribution. The Court of Appeal rejected that submission. In my judgment, the case is of no assistance here, since the Court may here only be concerned with contribution (statutory or contractual) after liability has been determined.

Apart from ruling upon the detailed criticisms of the CHA, the issue for decision is whether in principle, the Third Party are to be held bound by its provisions. In my judgment, there are a number of cogent reasons why the Third Party, which as noted above, was not a party to the drafting of, let alone a signatory to the CHA, should, nevertheless, be held to be so bound. This occupational health litigation, by which I include the Griffiths case, is unparalleled in its complexity and scale. The numbers affected by the original judgment exceed by a large margin numbers involved in any previous group action. My decision is that it is within the power of the Court to impose a method of settlement (in a non statutory sense) which reduces to proportions which are manageable, both by the Court and the parties, the task of assessing the compensation to which the claimants have been held to be entitled, subject only to proof of the existence of a relevant physical condition, qualifying employment and, otherwise, as to amount.

The CHA is, however, not merely a private agreement between parties to litigation. It has received the approval of the Court through the exercise of the procedural powers available to it as manager of group litigation. It should, however, be recognised that it would always have been open, to any properly interested party, such as the Third Party, to invite the Court to revisit the agreement in order to ensure that in the light of experience or for other demonstrable reasons, it achieved its stated aims; see preamble quoted earlier in this Chapter. Moreover, the evidence has satisfied me that in the respects identified by the Defendants in submission, and identified elsewhere in this judgment, the sums awarded may in some instances have resulted in under-compensation being awarded as compared with awards which would have been assessed under common law principles. An obvious case would be one where an expedited award has been made without any corresponding right to claim special damages. There will also be cases where the schemed claims for additional assistance or household expenses will be less, because of their schemed nature, than they would otherwise have been. Equally, in some cases, the award may exceed such a basis of assessment but this does not have to be fatal. In other words, the settlements are both individually and collectively “somewhere around the figure at which” the Court might have arrived had it proceeded along strict common law lines; that would meet the test of a reasonable settlement; see Biggin’s case, above. As some settlements will exceed and some be reduced from those which would have been awarded at common law, there is no reason to suppose that, if a final accounting were done, it would be found to be significantly different from the exact or true figure reached if each case had been separately litigated. It is certain that the expenditure of time, energy and costs by multi-disciplinary professionals will be but a tiny fraction of what they would otherwise have been.

But there are further reasons to be brought into consideration. Finality is also achieved, in that, subject to the disputes procedure, which has not yet been invoked, compensation awarded under the Agreement is not subject to any appeal.

In conclusion, there is an overriding public interest in limiting the scope for further litigation in all these cases. That is, litigation in relation to the challenged assessments in all the outstanding individual cases brought by or on behalf of contractors’ men, provided always that the Court has not acceded to the final submissions made by the Third Party.

The right to claim contribution is established by section 1(1) of the Act, in the following terms:

Subject to the following provisions of this section, any person liable in respect of damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise.

There was some debate during the hearing and submissions about the meaning and relevance of section 1(4), which is in the following terms:

A person who has agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage … shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or was ever liable in respect of the damage, provided, however, he would have been liable assuming the factual basis of the claim against him could be established.

For the reason that the purpose of sub-section (4) was to remove a possible loophole in the Law Reform (Married Women and Joint Tortfeasors) Act, 1935 it has, in my judgment, no application to the circumstances of this litigation. That loophole enabled a third party, against whom a claim for contribution was made, to assert that in a case where the defendant made a settlement with the original claimant, when he had not in fact been under any liability, to avoid any liability to contribute. In such a case, the defendant’s claim for contribution would fail, even if the settlement had been reasonably made; see Stott v. West Yorkshire Road Car Co Ltd [1971] 2 QB 651. In the present case, the liability of the Defendants is not in doubt; the judgment in Griffiths has been accepted by the Third Party. Further, there has been no suggestion that the Defendants were not liable to any of the Lead Claimants in this litigation. In any event, as will become clear, when the actual process of apportionment is conducted, the Defendants are and were unquestionably liable to all the Lead Claimants. It will also become clear that the Defendants were liable in respect of the same damage as that for which the Third Party still stand to be found liable. If so found, they will they also be liable in respect of any claims which have been instituted by the date upon which the CHA ceased to have effect (31 March 2004).

The question then becomes whether the liability of the Defendants to a claimant in respect of any damage is “the same damage” for the purposes of section 1(1) the damage as that for which the Third Party may also be found liable. There was an extended debate on this question during final submissions. By the end of those submissions, it was far from clear to me what separated the parties on this question. It should be assumed, for present purposes, that for work which was performed in headings by the Third Party they will have been guilty of some fault. This can be expressed, in general terms, as failure to use best practice in relation to dust suppression techniques, and also fault on the part of the Defendants, through the failure of their deputy to comply with his duties under Regulation 9 of the Managers and Officials Regulations and the duties described and assigned to him, outlined in the Deputies’ Handbook; V1/3. The faults of both Defendants and Third Party as have just been generally described, will inevitably have contributed to the same (respiratory) damage suffered by the individual claimant. It is in respect of that damage alone that the statutory right to contribution exists.

Section 2(1) directs that:

The amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that persons responsibility for the damage in question.

In contradistinction to such a situation is one in which:

There is no concerted action and their acts cause different items of damage. In such a case there is no solidary obligation; each is liable. [ibid p 20]

This passage might well have been written with this case in mind. There is abundant evidence that the Defendants failed to limit the amount of intake contamination reaching the headings and also failed to provide adequate ventilation in terms of volume of airflow. Although both these failures will have had their effect on the concentrations of respirable dust, neither can found any liability directly on the part of the Third Party. Any damage caused through those mechanisms, although of the same type of damage as that which may be caused by activities in the headings and attributable to the Third Party, is a several liability for which the Third Party can, in law, have no responsibility.

It was common ground between the parties that all the works performed by the Third Party were carried out pursuant to contracts made in one of two alternative standard forms of contract issued by the Defendants from time to time. The parties were, however, far apart as to their proper construction and effect. Although there has been extensive disclosure of contractual material, in large measure it has not proved possible to tie contracts to particular working sites at which it is known that the Third Party was executing works when any of the Lead Claimants were present.

There were two major editions of standard terms and conditions, namely those in 1963 and 1989 which were applicable to this litigation. For practical and present purposes the thrust of these two editions was similar, although the format was different. From time to time amendments were made to the standard forms. These amendments do not, however, make significant changes for the purposes of this litigation. It is the major editions which must now be considered.

The first set of conditions was The General Conditions of Contract for Mining Works January 1963 (The 1963 General Conditions), the second was similarly titled for 1989 (the 1989 General Conditions). It is known, however that there were forms of contract which pre-dated the 1963 General Conditions. One of these can be found set out in part, in the course of the judgment of Bristow J in Joseph Bielak v. Associated Tunnelling and National Coal Board (18 March 1971) which related to an accident in a coal mine which occurred in 1967. The terms of the contract relevant to that issue, as recited in the judgment in that case, were as follows:

“1.

ATC were to execute and complete in good and workmanlike manner … the work in accordance with the specification …

2.

Cl. 6(1) ATC “shall give or provide all necessary superintendence during the execution of the work …

3.

Cl. 6(1)(vi) ATC was required to cause their workmen to comply with (the Act of 1954);

4.

Cl. 9(I) ATC shall take every reasonable precaution not to cause … injury to persons …

5.

Cl. 9(II) Subject to the limitations of liability in paragraph (III) of this clause … the contractors shall be responsible for and shall indemnify the Board against any expenditure, loss or damage in respect of … injury to persons to the extent that such expenditure, loss or damage incurred by the Board by reason of the failure of ATC … to execute the work in accordance with the contract, or the negligence or breach of statutory duty of ATC … whilst engaged on the work … or by reason of any act or omission of ATC … in consequence whereof the Board … shall be in breach of statutory duty imposed upon them.

6.

Cl. 9(IV) Except as provided in sub-clause (II) ATC shall not be responsible for and shall be indemnified by NCB against expenditure, loss or damage in respect of damage to property or injury to persons to the extent that such expenditure (etc) results from the execution of the work in accordance with the contract or from any act or neglect or breach of statutory duty of NCB …

As will be seen, these clauses bear a strong resemblance to those which governed the works which were performed under either set of conditions by the Third Party during the periods when they employed the Lead Claimants. Bielak will be revisited when the contracts relevant to this litigation are construed.

At the prompting of the Court, junior counsel on behalf of the Defendants, to whom the contractual issues were delegated, prepared a valuable comparative table of the conditions as they appeared in the 1963 and 1989 editions; see U2¶34. It is, however, necessary to set out sufficient of the conditions to enable the submissions to be understood. Thus in the 1963 General Conditions:

1.

(f) ‘Contract’ means the Agreement, these Conditions, the Specification, Drawings and Tender.

…

(l)

‘tender’ means the Contractors’ Tender as accepted by the Employers.

…

8.

Save in so far as it is legally or physically impossible, the contractors shall execute, complete and maintain the Works in strict accordance with the Contract to the satisfaction of the Engineer’s instructions and directions.

…

10.

(i) The contractors shall give or provide all necessary superintendence during the execution of the Works and at such times thereafter as the Engineer may consider necessary during the period of maintenance, and a competent and authorised agent or chargeman of the contractors skilled in the type of work for the time being executed and approved by the Engineer shall be on the Site at all times when work is in progress and shall give his whole time to the superintendence of the same.

14.

Indemnities and insurance

(i)

Except as herein expressly provided the provisions of this Condition shall not affect the rights or liabilities of the parties arising under the contract or at common law or otherwise.

(ii)

The Contractors shall indemnify the Employers against loss suffered or expenditure incurred by the Employers arising out of injury to any person or property to the extent that such injury is due to:-

(a)

any failure of the contractors … or of their … servants or agents to execute the Works properly in accordance with the Contract; or

(b)

any negligence or breach of statutory duty on the part of the Contractors … or their servants or agents; or

(c)

any breach of statutory duty on the part of the Employers to the extent that it results from any act or omission of the Contractors … or … their … servants or agents.

(iii)

The Employers shall indemnify the Contractors against loss suffered or expenditure incurred by them arising out of injury to any person or property to the extent that such injury is due to any negligence or breach of statutory duty on the part of the Employers their servants or agents (except to the extent that any such breach of statutory duty results from any such omission as is mentioned in paragraph (ii)(c) hereof.

15.

Compliance with the Mines and Quarries Act 1954 and Other Statutory Provisions

(i)

The contractors shall comply with all relevant statutory provisions, … regulations of … other authorities which may be applicable to the works.

(ii)

In addition to their other obligations under the Contract and without prejudice to the generality of paragraph (i) of this condition the contractors shall co-operate with the colliery manager in ensuring compliance with the Mines and Quarries Act, 1954 and the Regulations and Orders issued thereunder and in particular with instructions given by or on behalf of the colliery manager. [Deleted later and replaced in 1984 by

(ii)

Nothwithstanding anything contained in the General conditions the Contractor shall in all matters arising from the performance of the contract at his own expense take all such steps as may be necessary to secure that the provisions of the Acts are complied with in all respects and shall co-operate with the colliery manager for this purpose and in particular shall ensure compliance with the instructions given by or on behalf of the colliery manager.]

41.

Maintenance Certificate

(i)

The Contract shall not be considered as completed until a Maintenance Certificate shall have been signed by the Engineer and delivered to the Employers, stating that the works have been completed and maintained to his satisfaction. …

42.

Approval only by Maintenance Certificate

No certificate other than the Maintenance Certificate referred to in Condition 41 shall be deemed to constitute approval of any work or other matter in respect of which it is issued or shall be taken as an admission of the due performance of the Contract or any part thereof …

The 1989 Conditions, where material provide that:

“Execution of the Contract

2.

(1) The contractor shall carry out and complete the execution of the Works in accordance with the contract and to the satisfaction of the Engineer. The engineer may give instructions to the Contractor about the execution of the Works.

…

10(2)(e) Within 28 days of the end of the Maintenance Period (if any) the Contractor shall be entitled to apply to the engineer for a Final Certificate. The Engineer shall, if he is satisfied that all outstanding work and obligations under the Contract have been satisfactorily carried out by the Contractor, to issue the Final Certificate …

10(3) The issue … of any Certificate shall be evidence only as to the general sufficiency of the work … and shall not be conclusive evidence as to the satisfactory performance by the contractor of his obligations … under the Contract …

…

27.(1) The Contractor shall indemnify British Coal against loss or damage or expenditure incurred by British Coal arising out of the death of or injury to any person … to the extent that such death or injury … is caused by breach of contract, negligence or breach of statutory duty by the contractor … or breach of statutory duty on the part of British Coal to the extent that it results from an act or omission of the Contractor …

(2)

…

(3)

…

(4)

British Coal shall indemnify the Contractor against any loss or damage suffered or expenditure incurred by the contractor arising out of the death of or injury to any person … to the extent that such death or injury … is caused by any breach of contract, negligence or breach of statutory duty by British Coal … (except to the extent that any such breach of statutory duty results from any act or omission mentioned in Condition 27(1)).

…

Compliance with statutory provisions and British Coal’s site practices

40.

The Contractor shall at his own expense comply with the conditions and requirements set out in the Appendix and all other instructions given by the engineer in connection with the safe execution of the Works and the operation of the Site.

The Appendix referred to above introduced a requirement for the Contractor to familiarise himself with Health and Safety provisions which were dated November 1989. Relevant to this litigation those requirements contain the following:

Part I – Statutory Provisions

The Contractor shall comply with all Acts of Parliament and other statutory provisions including without limitation those referred to below … and all orders, regulations … so far as the same relate to the carrying out of the contract work.

Section A – 1974 Act

The Contractor shall comply with the general duties imposed on him by the 1974 Act and shall ensure that his employees and agents perform their duties in relation thereto.

Section B – Mines and Quarries Acts 1954 –1971

The Contractor shall in all matters arising form the performance of the contract work take all such steps as may be necessary to secure that the provisions of the Mines and Quarried Acts 1954-1971 and the 1974 Act are complied with in all respects and shall co-operate with the Colliery Manager for this purpose and in particular shall ensure compliance with any instructions given by or on behalf of the Colliery Manger.

Part II – British Coal’s Requirements

The Contractor shall comply with British Coal’s requirements … including without limitation … the requirements set out below …

(b)

as regards work to be performed at a mine, the regulations and requirements contained in specifications and instructions issued by British Coal concerning operations at a mine …

(d)

any particular specifications issued in relation to the contract work.

12.

Employees and Supervision

(4)

The Contractor shall ensure that all work carried out under the contract is under the supervision of a person appointed for that purpose by the Contractor … (who) shall be suitably qualified and have obtained the necessary standards of training and/or experience for the work in hand to enable them properly and competently supervise the works.

As can be seen, under both versions of the terms, a contractual obligation was placed on the Contractors to comply with the provisions of the Mines and Quarries Act 1954, as well as the Respirable Dust Regulations 1975 after they came into force, together with all other relevant legislation affecting health and welfare as it was from time to time. One of the questions to arise in these proceedings will be the extent to which the statutory obligations under which British Coal operated could also be applied to the Contractors while performing works pursuant to the contracts in their mines.

In addition to the Terms and Conditions outlined above, there were of course special conditions and specifications which formed part of the documentation of all contracts. In all those contracts to which reference has been made during the present hearing, a dust suppression clause was always included. The form of such a clause varied from contact to contract but was, nevertheless, in broadly similar form. Thus, by way of examples:

What may be surprising is that, as late as 1992, British Coal was still referring to its booklet F4040 which had been produced in anticipation of the introduction of interim standards and the gravimetric sampler so long ago as 1969. Moreover, the fact that specifications referred to “approved levels” and “permitted amounts” produced an unhappy echo of the gravely erroneous concept of “approved faces”, a topic which was covered in detail in the original judgment [see below]. The booklet F4040 is to be found as Appendix 3 to the original judgment. PI [Production Instruction] 1969/5 is a document which was produced at about the same time as the booklet and specified the procedure for sampling with the gravimetric device. Neither the booklet, nor the PI made any provision which was directly applicable to contractors. The booklet did, however, state ambiguously that it was the “aim of the National Coal Board to minimise dust and to attain Approved Dust Conditions in every working place”. The concept of minimising dust and attainment of “Approved Conditions” were not identical and have, in my judgment therefore, to be construed as having cumulative effect. In paragraph 2.8 it is stated that:

The data obtained from routine sampling may be used to measure the environmental conditions of re-employed certified pneumoconiosis cases. Where such men are working in a district in an intake roadway, a face intake sample shall be taken in the roadway near its entry to the face, at least annually. If a man is working in a face not normally covered by routine sampling, then additional samples shall be taken at least annually. Where a number of pneumoconiosis cases are engaged in similar operations at the same place (even though on different shifts) it will be sufficient to sample in the vicinity of one of the men only.

It will be recalled that in the original judgment, I wrote of the document “The Sampling of Airborne dust for the Testing of Approved Conditions” (Appendix 1), as follows:

Following the promulgation of the ‘Sampling’ document, the practical effect was that ‘approved conditions’ became ‘approved’ for all purposes and as a qualification by reference to the employment of certified pneumoconiosis underground. Accordingly it became the everyday standard against which performance of collieries in reducing dust came to be assessed. Throughout, British Coal attempted no serious and sustained effort to better ‘approved conditions’. … This position remained essentially unchanged for the ensuing 20 to 25 years. [P33]

We have serious doubts about the effectiveness of the ‘Approved/Not Approved’ classification as a management tool, for it can be of use only with respect to the minority of faces “not approved”, as it is equally important to contain or reduce dust levels on ‘approved’ faces. Even 100% ‘approved’ conditions under the present interim standard would not necessarily mean any reduction in the incidence of pneumoconiosis … we should prefer a description which causes no implication that a manager can rest content with dust conditions at the 8 mg/m3 level. Indeed we doubt if any responsible member of the international mining community would now accept the adjective. … We … feel that it should go sooner rather than later. [letter DTI to British Coal, 9 March 1971].

The DTI plainly had reason and history on its side. It is hard to be other than critical of British Coal who had known from the start of the ‘approved limits’ scheme what was its limited purpose. But British Coal appear to have become mesmerised, or corrupted, by the notion that it was only if a face was ‘not approved’ anything needed to be done to reduce the concentration of dust at such a face. [P46].

The form of contractual wording which has been discussed, was a sure reflection of the attitude of British Coal to dust levels generally throughout their mines. It is, however, both striking and unfortunate that seventeen years after the introduction of RDR, there was still to be found within the contractual documentation reference to F4040.

In addition to dust suppression clauses in the specifications, typically, there were also clauses which made provision for the supply, installation and maintenance of plant and equipment, other than ventilation equipment. Installation, maintenance, moving up ventilation equipment, shotfiring, methods of work and supervision which were, without exception, contractually the responsibility of the Third Party.

The Third Party were undoubtedly correct when they submitted that it was the culture of British Coal to work to approved limits rather than to minimise dust, at all stages. As will be seen, however, this will not of itself necessarily see the Third Party home on the issue whether they may be held liable in respect of their failure to comply with the strict terms of their contracts. No estoppel was asserted. The existence of this culture also enabled the Third Party to advance submissions to the effect that they were not, by the contracts, required to minimise dust but were merely required to work so that the concentration of dust did not exceed the “approved level” or “permitted amount”. If there was a further obligation, it was to be found in the Manager’s Scheme which ought to have been provided under RDR. It was said that all the contractor could be required to do in order to comply with the contract was “to co-operate with the manager in (his) efforts to ensure the requirements of the Regulations are fulfilled”; 3:130:8-14. It was submitted that the primary obligation on the Contractors was to observe those (approved or permitted) levels, in contradistinction to working so as to minimise the giving off of dust. If and so long as they worked to those levels, that would not have involved any breach of contract on their part. The submission was:

these mining contracts had to be performed in terms of their contractual obligations in a practical manner, and the way the parties understood that they should be performed and the way that they behaved towards one another in the performance of those contracts will be highly material to the question: what really was the contractual obligation here? (46:84:11)

The Defendants were in no position to challenge, nor did they, the existence of such a culture. The Third Party argument did not effectively address the obligation placed upon them to “co-operate with the colliery manager” in ensuring compliance with the relevant statutory requirements. As has been seen already, the judgment in Griffiths, which was critical of British Coal, was accepted in its entirety, apart from one immaterial error of law. Importantly, it was accepted that the generic findings could and should be applied in this litigation. Thus it had failed:

1.

To take all reasonable steps to minimise the creation and dispersion of respirable dust by the introduction and use of known and available dust suppression techniques from about 1949 to 1970

a.

Face infusion [no applicability in this litigation]

b.

The use of pneumatic (jigger) picks equipped with water sprays;

c.

Water designed into coal cutting and getting machines at the pick face [for coal cutting machines read ‘road headers’];

d.

Spraying fallen coal and ‘muck’ with water;

e.

Reduction of firing, especially on production shifts;

f.

Attention to chutes, enclosed transfer points and joints on conveyor systems;

g.

Ventilation in headings and drivages.

2.

…

3.

…

4.

By adhering to the misleading concept of face ‘approval’ and ‘non approval’ to institute an efficient system for ensuring that the obligation as in 1. Above was met. [P92]

Separately, and additionally:

British Coal were in breach of duty in not making any or any great effort to instruct or persuade miners of the benefits of using Respirators [by which it is to be understood was meant ‘dust masks’] from 1965 onwards. [P82][comments added]

With suitable adaptation most of these generic findings, it was submitted were applicable just as much to the Third Party, as they had been to British Coal, for the purpose of determining whether or not they had been negligent, or in breach of statutory duty, in a similar manner. The main thrust of the Defendants’ case on the alleged breaches of contract was to identify three separate respects in which the Defendants were entitled to base their argument in favour of their entitlement to indemnity. First, it was said that the Third Party did not execute the works properly in accordance with the contract, notably by minimising dust. Secondly, the Third Party was guilty both of negligence and breach of statutory duty. The third basis asserted was that insofar as British Coal is held to have been in breach of statutory duty as the results of acts or omissions on the part of the contractors, the Defendants are again entitled to an express contractual indemnity.

The analysis of the contractual position was set out in some detail in the Defendants closing submissions Contract; U2¶46 and 58. It is unnecessary to address this aspect of the case in more than summary form because of the nature of the Third Party’s submissions. These accepted that the Contractors had not aspired to minimise dust, but, as noted above, they had relied on the culture, which they said was all pervasive in British Coal mines, that of meeting or not exceeding “approved levels” or “permitted amounts” as meeting their contractual obligations. But the submission deserves, nevertheless, to be acknowledged and must be considered. The Contractors were required to inform themselves of the statutory provisions, namely the Act of 1954 sections 55 and 74 as well as the PI 1969/5. The contract then required the Contractor to use equipment and methods of work which would “ensure” compliance with the relevant sections of the Act and, by way of a cumulative requirement, ensure that the concentration of dust did not exceed the F4040 levels. In this context the statutory obligation, it will be recalled, was one which fell to be performed by the Colliery Manager, and required him to minimise the giving off of dust of a character and in such quantity that it would be harmful to persons employed; section 74 of the 1954 Act. It is only possible, sensibly, to construe this contractual provision by requiring the contractor to do nothing that would imperil the manager meeting his obligation (it being, according to the statute, his alone) to minimise the giving off of respirable dust. If he failed to do so, the Manager would still remain liable for the breach, but this would not affect the right of the Defendants to seek indemnity, just as happened in the case of Bielak; see below. The only sensible manner in which minimisation of dust be achieved would be by the Contractor himself so carrying out his operations that he minimised the dust which was given off by those operations, the “dust make”. The approach of the Third Party to the construction of the contract provisions, involved the disregard of the express language of the contract and impermissibly rewriting it in the manner which they suggested in their closing submissions.

The meaning of the contractual provision in relation to ventilation was not seriously in doubt. The scheme of the contracts was that the design of ventilation was as specified by the Defendants. The Defendants would supply the bagging or ducting together with any necessary auxiliary fan and would be generally responsible for the provision of ventilation to the headings. It was always for the Defendants to specify what form the auxiliary ventilation was to take, that is whether it was to be forcing, extract or overlap. Because it was the Defendants’ statutory duty to ventilate the mine in accordance with the scheme for the mine, which was specifically the duty of the manager assisted by the ventilation officer working directly under him, it was a matter of absolute practical necessity that the design should be that of the Defendants. Installation, maintenance and moving up ventilation ducting in the heading were matters always the contractual responsibility of Contractors. There were isolated occasions when the Contractors would be required to devise a purely local scheme. Historically, these occasions appear to have been restricted to the Bentley phase IV works and Stillingfleet. These were of so unusual occurrence that they raise no generic issue and need not be further considered.

Throughout much of the hearing, there was an issue how far Contractors were free to devise and use their own methods of work. In the end, it became increasingly obvious that, in the vast majority of cases, the Contractors were free to use their own methods, and I so find. There were exceptions, as where the specification might stipulate whether the heading was to be driven either by bore and fire or by machine. The contractors were always free to include methods of work, in their tenders, which were alternatives to those stipulated in the specification. In general, however, in the case of a bore and fire heading, the Contractor was free to choose whether to bore wet or dry and the types of drills he would use and what firing pattern he would employ. Similarly, in mechanised headings, it would be for the contractor to determine what type of machine would be used for driving the heading and what method should be employed for loading out muck, that is whether by machine or by hand and what types of conveyor he would use as well as the dust suppression equipment which should be fitted to them. On occasions the specification would require the use of Eimco machines for mucking out. The Eimco machine might be supplied by the Defendants or by the contractors themselves. In either event, after RDR, the Third Party was invariably required to maintain the machines within the scheme of maintenance which was to be included in the Manager’s Scheme for the mine.

The contract would always require the Third Party to inform the Defendants of their intended method of work before commencing work under the contract by means of the Method Statement, which was an adjunct of all contracts. Such a statement would not only cover the machinery and methods of work, but also the sequencing of operations which were the subject matter of the contract. The significance of these incidents of the contractual relationship between the parties is that, as the Defendants submitted, the Third Party was required to comply with, and adopt methods of work which would ensure that they complied with, as well as to co-operate with the Colliery Manager in complying with all relevant statutory provisions while, at the same time they were free to adopt what methods of work they chose to achieve those ends.

The Third Party also submitted that, in addition to the stipulation that its methods of work were to be such as to ensure that the levels of dust would not exceed “approved limits” or “permitted amounts”, it was bound to observe, in the sense that it could not deviate from, the provisions of the Manager’s Scheme which Part IV of RDR demanded. The invitation, which was implicit in this submission, was that the Court should hold that, if such was done, the Third Party could or should not be found to have been in breach of contract. This argument has to be rejected. If it were to be accepted, it would involve a misreading or misunderstanding of RDR, in at least two respects, quite apart from a re-writing the contract itself. First, the Third Party had no input to the Manager’s Scheme, except insofar as its own scheme for maintenance of plant was taken into the former. Secondly, there was nothing to prevent Contractors from improving on the manager’s scheme if by doing so they were still enabled to minimise dust. What the Contractors could not do, without, at the least, being at risk of a finding of breach of contract, was fail to comply with those provisions of the Manager’s Scheme which were applicable to their operations and which were capable of being complied with by them.

It will be recalled that both forms of the General Conditions required the Third Party to provide supervision which was appropriate to the work in hand. To take but one example of the way in which this might work in practice, there was much evidence given to the effect that men would return to the face of the heading too soon after firing had taken place, with the result that they would be unnecessarily exposed to the dust and fume, as the product of explosion, which had been released by firing into the atmosphere of the heading. It should have been one of the duties of the heading (Contractors’) chargeman to ensure that at least the minimum time lapse before return to the face was observed before the men returned to the face of the heading. If this was not done, there is scope for a finding of breach of contract on that account. It does not assist the Third Party, on the contractual issue, that the deputy may also have been present at the time and did nothing to prevent the Contractors’ men making an early return. That he may also have done so himself, would change nothing in this respect. The fact that he may also have been in breach of his statutory duty is irrelevant to the breach of contract by the Third Party.

The final contractual analysis is that, in a case where Contractors have not minimised dust, so that the Manager of the Mine is thereby put in breach of his statutory duty, the Third Party becomes under a contractual duty, which is co-extensive and co-terminus with, the statutory duty of the Defendants. In such a case, the Defendants would become contractually, or vicariously liable, to the Claimant in respect of the Manager’s breach. Under Clause 14(1) of the 1963 Conditions the Third Party becomes liable to indemnify the Defendants for loss and expense which they have suffered “to the extent that” such breach had caused the Defendants to suffer loss or damage. This is not new law; see Murfin v. United Steel Company (Power Gas Corporation Ltd, Third Party [1957] 1 WLR 104.

It is now relevant to return to the case of Bielak. The facts were that the plaintiff had been employed by the first defendants, a company which has since become a part of the Cementation Group. The circumstances of the accident are not relevant for the purposes of ascertaining the form or construction of the indemnity, which was included in the contract documentation in that case. However, in order to follow the decision of the Court, a short summary of the facts is required. The work involved the use of an Eimco mechanical shovel the motive power to which was supplied by compressed air (provided by the NCB) delivered by means of a flexible hose. A clip which should have secured a join in the coupling of the hose to the machine was imperfectly fixed by an employee of ATC (the first defendants), with the result that it blew off and dislodged a quantity of “muck” some of which struck and injured the plaintiff. As an issue of fact, Bristow J held that the defective coupling had been made by ATC. Under section 84(1) of the Mines and quarries Act 1954, the NCB was under an obligation to ensure that all apparatus was so constructed and maintained that it obviated the risk of bursting or explosion. The facts of the accident (as described) meant that the NCB was thereby put in breach of its statutory duty. There was no corresponding breach of statutory duty by ATC because the statute was not directed at them. But in causative terms the incident was wholly the fault of ATC. Both defendants submitted to judgment in favour of the plaintiff and the matter proceeded by way of a claim for contractual indemnity by the NCB against ATC. In the circumstances, it is plain that the only relevant fault was that of the contractors which had had the effect of putting NCB in breach of its statutory duty. The similarity between the Conditions of Contract as they were in that case and the 1969 or 1989 Conditions is readily apparent. Bristow J, see p9 of the transcript, held:

The conclusion to which the evidence in the case, as a matter of preponderance of probability leads me, is that the accident was caused by a, if you like, mad moment on the part of an ATC employee, and was therefore negligence for which ATC was responsible within the meaning of clause (9) of the Agreement, and that the accident was not caused by any inspection failure or failure to set up a proper system by NCB. In those circumstances, in my judgment, clause (9) operates, and it is for ATC to bear the whole liability to Mr Bielak.

The Third Party submitted that the true meaning of “act or omission”, where those words appear in Clause 14(ii)(c) of the 1963 Conditions or Clause 27(4) of the 1989 Conditions, was that it was not just any act or omission but must have been one which was culpable, if it was to be caught by the clause. This argument has to be rejected because (a) it does violence to the plain and natural meaning of the words and (b) would render the clause superfluous having regard to the other stipulations in the contract. Moreover, it was said that the Defendants could not rely on this clause to claim indemnity where they had themselves been guilty of relevant fault. Given the extensive findings made against the Defendants in the original judgment, it was not open to them now to deny that they had been at fault, so as to incur liability to each of the claimants in this litigation. Indeed, they could hardly do so because their claim for contribution could only proceed on the basis that they were liable to each claimant. The inclusion of the phrase “to the extent that” (see clause 14 of the 1963 Conditions and clause 27 of the 1989 conditions) meant that the indemnity was not available to the Defendants unless they could demonstrate that the sole cause of the claimant’s injury was fault on the part of the Third Party. If it was not, then the Defendants’ claim for contribution must fail. If it was (solely the fault of the Third Party), then there was no liability on the part of the Defendants in respect of which they could claim to have suffered any loss or incurred any expense. The claim for indemnity would fail on either basis.

The Defendants recognised in their submissions that there were insuperable difficulties in the way of persuading the court that they should succeed in obtaining complete contractual indemnities from the Third Party having regard to their own repeated breaches of duty, to which the Contractors had not contributed (viz: intake contamination ventilation deficiencies) – to minimise dust and to provide effective supervision by their deputies – in the light of the many findings of negligence and breaches of statutory duty in Griffiths, although these were not expressly made they are implicit from the tenor of the judgment. The Defendants’ submission stressed the contractual obligations on the part of the Third Party which stipulated that they were obliged to take steps both to ensure adequate supervision in the headings and to minimise dust. Under conditions 14(iii) and 27(4) of the 1963 and 1989 form of contracts respectively, British Coal was required to indemnify the Third Party for liability incurred by them due to neglect or breach of statutory duty caused by British Coal (provided that such matters did not arise out of neglect of breach of statutory duty on the part of the Contractors).

In the event that both parties were equally guilty of neglect and breach of statutory duty the case becomes one for contractual apportionment between the parties to such extent as would be just and equitable. In that respect the failings of the contractors have to be taken into account and weighed against the Defendants’ own many failings. On the facts, if they are so found, the Contractors had arguably not complied with the provisions of their contracts and that feature should bear upon apportionment since the parties had by those contracts allocated how responsibility between the parties should lie. As the Court was constrained to point out to Mr Evans, however, there is to be set against that consideration the many respects in which the Defendants had not only been found to have been negligent/in breach of statutory duty in Griffiths but, in simple terms, it was because of their own concurrent fault that the Third Party had, over many years, been able to carry on its work in ways which involved not only breaches of contract, which went unnoticed or uncorrected by the Defendants, but also by the same token significant breaches of its own statutory duties. The submission was encapsulated in the following way, towards the conclusion of Mr Evans’s speech:

(I)t is invariably a question of fact and degree … rather than any overriding principle that the defendant was entitled … to rely on and assume that the Third Party as an experienced and reputable contractor, would comply with its terms…. Those are factors which weigh more heavily in the balance than other factors, such as the Defendants’ own … statutory duties.

I cannot say that the Defendant should have no liability and the Third Party full liability. … it is a balancing exercise … (these) are factors to be put into the balance. of where we think we are on the scale of weight.

Judge: One is a freely assumed contractual obligation, and the other is an imposed statutory duty.

This latter was a proposition with which counsel agreed. Counsel had referred to Barclays Bank plc v. Fairclough Building Ltd [1995] QB 214 in support of his argument. The real point in that case, however, was to re-affirm the well established principle that contributory negligence is no answer to a claim based on breach of contract. I was not much assisted by that reference.

In conclusion, then, if and in the respects that the Third Party were negligent or their acts and omissions put the Defendants in breach of their statutory duty, I hold that they were persistently in breach of their contracts with the Defendants. Those breaches of contract involved the Defendants, in part, incurring liability to the Lead Claimants in respect of which they are entitled to rely upon the indemnity clauses in their contracts and be indemnified “to the extent” of their proportionate shares of responsibility. The methodology of apportionment is separately treated hereafter.

During the course of the evidence, a number of possible evidential defences to the Defendants claims for indemnity and breaches of contract by the Third Party were canvassed. These may be summarised as:

A thread which ran throughout the Third Party case was that they were not only not obliged to comply with any relevant duty under the Act of 1954, insofar as it was directly enforceable against them, but that they were entitled to follow, with impunity, the culture of British Coal as it was to be found underground in mines owned and managed by them. Both as a matter of contract (see last Chapter) and with regard to the employers’ duty towards his workforce, it was submitted that the Third Party was entitled to rely on the pervasive culture which existed within the Defendants’ organisation, namely that, after RDR came into force, it was sufficient if there was compliance with the Manager’s Scheme and the permitted amounts of respirable dust, or the previously “approved limits”, were not exceeded. If both were achieved then there was no scope for adverse findings in respect of negligence or breach of contract.

The central question which is at issue here, and which needs to be highlighted, is whether the Third Party would, if sued by any of the individual claimants, have been held liable notwithstanding adherence to the culture, so called. For the reason that they claimed that they were entitled to rely on the Defendants to fulfil the statutory duty, which fell upon them under section 74 of the Act, the Third Party contends that, in general, they ought not to be found liable to any of the Lead Claimants. There is one possible exception, which is the case of Brown of which more later. The Third Party therefore has, necessarily, to contend that it had no reason to doubt that the Defendants were at all material times compliant with their statutory and common law duties. The Defendants’ submission was that unless the Third Party could argue that they were unaware of the risk of harmful exposure to respirable dust, compliance with approved levels or permitted amounts or not, there must be a finding of liability against them. For the reasons which follow, the argument raised by the Third Party has to be rejected.

It is axiomatic, as well as accepted by the Third Party, that the duty owed to his workmen by an employer is non-delegable. The Third Party sought to circumvent, or modify, this rule by contending that insofar as they complied with the practice in the industry of which the Defendants were not only the leading employer within the United Kingdom but had also established a world-wide reputation as an innovative owner of coal mines and employer of men, they were acting reasonably towards their workmen. The law required no more of them. In support of this submission the Third Party also relied on the existence of the extensive statutory scheme, the Act of 1954 together with all the subordinate legislation made thereunder, which placed onerous duties on the Defendants which, if met, would have enabled the Third Party workmen to have been reasonably safe. This topic is more specifically considered in the next chapter. That such compliance cannot be assumed is simply illustrated by the proposition that the mere existence of the statutory regime is no guarantee that the party affected by it will comply with the obligations imposed upon it. By way of example, in a heading, there will inevitably be occasions when the deputy, whose statutory duty it is, at all times, to protect the health and safety of men in his district by whomsoever they are employed (regulations 9, 17 and 18 of the Managers and Officials Regulations), will either not be diligent in fulfilling his statutory duty or that he would be absent from time to time while the Third Party was performing works there.

Any attempt to rely on “custom and practice” or “culture” is also inconsistent with the express contractual obligations so clearly defined in the standard forms of contract discussed in the last Chapter of this judgment.

There is much other material which ought to have presented itself to the reasonably careful employer as worthy of his consideration. There is evidence that contractors were executing work for the defendants, including their predecessors, as far back at least as the mid 1950’s. It is scarcely to be contemplated, let alone accepted, that contractors would come to an industry unaware of some of the important risks to which their workforce was likely to be exposed. If they were aware of those risks they could not have been justified in the belief that there were none of which they needed to inform themselves. Even if they were ignorant of the risks at the outset, a reading of the 1954 Act, if no more, would have provided a warning to a reasonably prudent employer that he should inform himself what sections 55 and 74 were intended to achieve and whence came the necessity for efficient ventilation and the need to minimise dust. The reasonably careful employer would have sought to inform himself about the risks that were likely to affect his ability to perform his work without subjecting his workmen to unnecessary risk. Section 74 would itself, at the very least, have put him on enquiry why it was in the Act at all. His attention would have turned to the body set up to carry out inspections of the industry (HMI Mines and Quarries) and he would have come across the Annual Reports which are summarised in the original judgment pp 58 to 63. Any reasonable person reading those reports would readily have discovered the danger, which respirable dust represents for workers underground, and, more importantly, they would have learned that the Defendants’ means of dealing with it had been consistently insufficient over many years.

There is the additional factor that the Third Party were all contractors drawn from the civil engineering and construction fields. In order to carry out development work it would be necessary for them to be knowledgeably informed about risks which affected their industry in those fields, in terms of the health and safety of their workmen. In the proceedings of the International Labour Organisation, entitled Meeting of Experts on the Prevention and Suppression of dust in Mining, Tunnelling and Quarrying (1952), Dr Hicks, who was director of Scientific Control of the NCB, delivered a paper on The Sampling and Analysis of Airborne Dusts for Control Purposes. It is only necessary to refer to two paragraphs of his paper under the cross heading PREVENTION OF DUST FORMATION, Method of Working:

10.

In planning any new mining and quarrying operation, and also any tunnelling operation, due consideration should be given at the outset to means of preventing and suppressing dust, and especially to the influence of the general ventilation system.

11.

The layout of workings, ventilation, blasting and mechanical appliances used to get and transport the mineral rock should be such as to reduce the production of dust to the minimum and to suppress the dust produced.

Dr Winstanley also produced a paper Dust Prevention and Suppression in Coal Mines published in Mining Engineering 1952/53 pp81-96 which details the works and describes many relevant methods of suppression and dispersal of respirable dust which were then available and which still represent good practice today. Such would have been available to mining contractors; [D2/9] In addition to these selected publications there are a number included in Annex 7 to Mr Mitchell’s report D1. There was no evidence to show why these papers which were available throughout the construction and mining industries should not have been available to and considered by management of the Third Party.

In 1968, the British Standards Institution published a Standard For the selection, use and maintenance of respiratory protective equipment. In the foreword to the edition which is available to the court, it is simply stated that:

Respiratory protective equipment should be worn where there is a risk to health from inhaling harmful dusts … . It is stressed that in such circumstances every effort should be made to remove that risk by improving the design of the plant and the method of operation.

In the Standards Institution publication Safety in tunnelling in the construction industry BS 6164:1982 [D2/20] attention is drawn to the physiological effects of mineral dusts in the following way:

Paragraph 17 Dust

Paragraph 17.1 General Dust in tunnelling arises principally in the process of breaking rock. Dust generation should be suppressed as far as practicable and its spread controlled by such methods as water spraying, water infusion and extract ventilation. …

Paragraph 17.3.2

Physiological effects of mineral dusts. The exposure of persons to various kinds of mineral dusts may produce any variety of lung conditions. Among the more serious conditions is pneumoconiosis … .

The respirable fractions of dusts, broadly those particles having such an effective size (less than 5µm) as to enable most of them to enter the finer airways of the lungs may be eliminated … . However, continued exposure to excessive dust concentrations may result in permanent damage. The incidence of bronchitis may be increased by working in dusty atmospheres.

Paragraph 17.6

Respiratory protective equipment. This should not be used for permanent protection but where, for short periods, control measures cannot effectively limit dust levels at places where men need to work, dust protective equipment should be provided and worn while the hazard is present.

Although the Code of Practice does not apply to the construction of tunnels for the purposes of winning minerals (see paragraph 1 Scope), among the legislative provisions to which the reader’s attention is drawn are to be found the Coal and Other Mines (Shafts Outlets and Roads) Regulations, 1960, the Construction (General Provisions) Regulations 1961, the Construction (Working Places) Regulations 1961 and the Construction (Health and Welfare) Regulations 1966. All these publications provide material to which a civil engineering contractor, as a reasonable employer, would have had access for the purposes of gaining information about the nature of risks affecting his workmen of which he should have been, at least, aware. Paragraph 5.3.1 of the Code of Practice is of particular relevance. It provides that:

5.

Contract site organisation

5.3.1

Contract site management The Construction (General Provisions) Regulations 1961 require the appointment of a safety supervisor by contractors working on sites.

On safety matters, it is essential that the person appointed be given adequate authority, with support from the agent or resident engineer.

An interest in safety matters at all levels should be encouraged. … .

On a well run site there should be no conflict between production targets and safety, providing that preplanning takes account of both and that basic safety standards are regularly observed. Top management should insist on both these aspects and take an active interest in ensuring that their site staff are adequate to cope with both production and safety.

The contractor should be responsible for the recruitment of sufficient suitably experienced labour for the safe execution of the work and for proper supervisions of at all levels and in all capacities.

5.4

Accidents and dangerous occurrences

5.4.2

Protective wear

(g)

Lung protection Suitable respiratory equipment should be used where there is unavoidable excessive exposure to harmful … dust. Elimination of the hazard should be the primary aim, then ventilation to transfer it elsewhere and dilute it, and lastly the use of suitable respiratory equipment.

Among other provisions in the Code, which are worthy of note, are those relating to inspection, supervision and training coupled with the requirement that the works should be executed by experienced and suitable men.

Each member firm comprising the Third Party had extensive experience not only in the coal mining industry, but also in the civil engineering field. The provisions of the papers and codes are directly applicable and relevant to the types of operations on which the Third Party were engaged in British coal mines. Thus:

It will be of interest to examine the evidence given by the Contractors’ management as to their approach towards fulfilment of the ideal encompassed by these provisions.

Mr Keeble became managing director of Cementation in 1991. He started work with that company in 1975, became project manager in 1980, ultimately gaining promotion to his present position. His statement [C2 p830] recites that his company was entirely under NCB control in their operational environment. “We saw NCB very much as the World’s leading specialist in the understanding of the safety hazards in coal mines”. It is true that British Coal also considered itself to be the world leader in this respect; see Foreword to the pamphlet MRDE Dust Control Exhibition 1974 [D2/16] in which the Deputy chairman of the NCB made the claim that:

Great progress has been made and British research techniques and practices are recognised as the most advanced in the world.

The research here referred to was that conducted by the NCB. Mr Keeble went on to say that “It simply never occurred to us that our men were in danger of breathing injurious amounts of respirable dust … . We believed that if the NCB and the Mines Inspectorate were satisfied with the conditions then we should be too. … HMI never told us that we were doing anything wrong or that our men were in danger”. He had no recollection of any of Cementation’s headings going into sanction. Under cross-examination, Mr Keeble readily accepted that knowledge of dangers arising from exposure to airborne dusts was common, yet he continued to assert that the thought that any of their men might be in danger never entered his, or his company’s, mind. He said, however, that work within the permitted limits, he believed was safe because he believed that the limits had been set with “some sort of medical certainty that statistically (they) would be safe rather than unsafe”. Had he, or any other Cementation employee carried out even a cursory search of the available literature, he could not have justified holding to this erroneous belief. In response to a question suggesting that Cementation relied on the sampling and standards and that the Defendants or the Inspectorate would inform them if there was anything amiss with the sampling or standards, Mr Keeble said that within the activities which they could control they sought to apply best practice “which was the same as British Coal’s best practice”; (30:116:20). The reality of Mr Keeble’s position was that neither he, nor his company gave any positive thought to the question whether their workmen were exposed to any, let alone, any unnecessary risk from this source.

At a late stage in Mr Keeble’s evidence, the Defendants produced a file [Z] which consisted of a clip of HMI inspection reports from 1973 to 1985-6. Mr Keeble volunteered that Cementation would have had a library of such documents maintained by the company Safety Officer. In the report for 1976 there appears the passage [Z p59¶156]:

The Mines and Quarries Act, 1954 require(s) employers and managers to take such measures as are reasonably practicable to minimise the [production of dust], so that working conditions are maintained without risk to health. Action to achieve these ends should be taken even if the working place is in compliance with the current statutory standards, which may be reviewed as more knowledge is acquired of the adverse effects of dust.

In the next paragraph but one, the text of the report continued:

In drivages subject to sanctions the basic cause was a failure to maintain adequate airflows. The provision of an auxiliary ventilation system of adequate capacity and thereafter the maintenance of all the equipment, particularly the air ducts, to the highest standard is essential. The use of modern designs of filters either in the main ventilation system or as free standing filters can contribute to minimising dust concentrations but they must be installed with due regard to the proper distribution of air in the heading.

Such reports would not be discussed at Board level. Mr Keeble later agreed with the comment in the report for 1978 that (see paragraph 139):

Many factors can influence the standard of respirable dust concentration but investigation on receipt of notifications under regulation 9 shows that the most common cause is still a failure to maintain the dust suppression equipment provided.

In the report for 1979 attention was drawn to the fact that:

… only minimal corrective action (was) required to bring about an immediate improvement and with more effective day-to-day supervision of the dust suppression equipment the need to apply sanctions would be minimised.

The answers which Mr Keeble gave to the questions posed in relation to this passage are revealing:

Q. Would any of that information … filter down to a chargehand working in Cementation headings?

A. Yes. Well, whether the words in the document … But the idea of trying to maintain the best environment that he could, given the equipment, the methodolgy, yes, that certainly did.

Q. If that information in whatever form is disseminated so that it is acted upon in the heading: what system did you operate … for monitoring the dust readings that were taken in your headings? …

A. Well the system would be that the manager posted the results … and they were available to look at.

Q. … I am trying to discover … what the system was that you had to monitor those results to inform yourself what the position was.

A. We did not have a formal system.” [30:141:17 – 142:14]

Later, the questioning was taken up by myself:

JUDGE: It might go further than that, Mr Keeble, might it not? However often these results were posted in the covered accommodation, there would be results for the 03 drivage and the west 77th or whatever it was for one month and similar readings for another drivage and another seam for another month. Both might be within the permitted levels but one might be significantly higher than the other.

A. Yes.

JUDGE: It would have been theoretically possible at least for your company to have tied the worst result to a particularly difficult piece of in seam hard rock or whatever?

A. Yes.

JUDGE: And thus, although you were not yourselves carrying out a quantitative evaluation of the samples themselves, you would be able to relate those samples to the activity that was being performed at the relevant time.

A. Yes.

JUDGE But if, when the higher samples came through, you were not going through hard rock, you could have seen: Oh, something is wrong here.

A. Yes.

JUDGE: But you had no such system.

A. We had no such system and it would perhaps have flagged up a problem elsewhere in the mine that was being drawn into our heading.

JUDGE: It might have been all sorts of reasons. It might have been severe intake contamination, but investigation might have shown you the answer to that.

A. Yes.

JUDGE: But you assumed otherwise.

A. Yes.

JUDGE: Or did not assume.

A. Well, we just looked at it qualitatively, yes.

The weakness of relying upon the Defendants to comply with their statutory duty, coupled with the mere absence of notification being taken as an indication that all was well, was thus exposed.

A similar position emerged when Mr Luthe, the long serving and highly respected former managing director of Thyssen came to give evidence. Mr Luthe was apparently in ignorance, even, of the fact that the monthly figures for dust sampling were published in the covered accommodation at the pit top. He was under the impression that his company could have no official access to those figures. Mr Luthe’s approach to this problem was that the climate of the mine was essentially the responsibility of the Defendants through the manager. Thyssen had no information, as long as they were not “admonished” (33:28:25) or the drivage was not put into sanction. It was his belief, which he shared with Mr Keeble, that the limits on dust “were actually regarded as a position that the dust was not harmful in the sense of the assessment of the law” (33:29:10). At a number of points in his statement Mr Luthe had said that Thyssen did not monitor the ventilation and had no information about dust levels unless they happened to be in excess. He did not think that the information which that could have provided would have been of value to him, or Thyssen, as:

(W)e were absolutely entitled to rely on British Coal to actually take that responsibility upon them.

The witness could not be shaken from this point of view. But he was not alone in this. The Third Party expert, Mr Stevenson, who was not called to give evidence despite cross-examination of the Defendants’ expert, Mr Mitchell, which lasted over a number of days, had commented on this aspect in his report. Thus:

E¶14.22 Results strongly indicate that RDR 75 is a very successful set of Regulations. However in my opinion the results could have been even better. The industry in my experience met the prescribed limits of regulations as compliance rather than meeting the ‘minimising’ standard suggested [demanded] in section 74 of the 1954 Act.

¶14.24 However, HMI were concerned that some of the assumptions built into RDR 75 were no longer valid. Standards were set for RDR when the industry worked longwall advance faces and standard shift times. HMI were concerned that the regulations might not be correct for an industry that now worked predominantly retreat longwall mining, with much more powerful machinery operated by men on shift patterns designed to increase the proportion of time spent at the working faces for production and development.

It will be recalled that COPD caused by exposure to mine dust is the result of cumulative lifetime exposure, with the consequence that if extended shift times are worked, the dust burden per shift will be proportionately increased as compared with standard shift times. This may be of particular relevance for Contractors especially in South Wales whose men, on the evidence, not infrequently worked extended, or even back to back, shifts:

¶14.24 These concerns have been justified by a small but significant number of miners being diagnosed with pneumoconiosis in recent years. In the year 2000 two cases of PMF were reported together with a number of other lower categories. HMI investigation which I personally directed concluded that the workmen involved had a history of working extended hours and in most cases at least one 4 yearly medical examination had been missed. There were a disproportionate number of contractors employees among working miners being diagnosed with pneumoconiosis.

It will be convenient to follow, through the Contractors’ evidence, how they saw the relationship between their working practices and those of the Defendants. Mr Jessup is now managing director of Thyssen. The early part of his career was spent, as with so many others, working for British Coal. From 1978, when he took up his first post as under-manager at Bentley to 1994 when he ceased to be manager at Rossington, Mr Jessup was continuously employed in a managerial capacity by British Coal. He then joined Thyssen as assistant to the managing director, to which post he succeeded in 2002.

Mr Jessup stated his belief that British Coal controlled the method of work of contractors in a mine. The choice of equipment was that of British Coal “totally”. British Coal designed the ventilation system and were “totally” in control of dust suppression. He said that contractors would be concerned with dust suppression if, in a machine drivage, the driver had to examine the picks on his machine, that the sprays were compliant and that the machine had an adequate supply of water. Under cross-examination, it quickly emerged that he was a person who ran the mine by the rules. He agreed that contractors had to take their own responsibilities for work which was being done by their men (21:102:22) and that this had always been the case. He was asked at 21:128:10:

Q. Are you able to help us whether by 1994 it was company policy to encourage the use of dust masks, specifically by the workforce underground?

A. I am not sure. … I am not sure if we would have encouraged the use of PPE … I am not sure if we would have encouraged the use specifically of dust masks. One has to bear in mind that the system that was operating in mines, if you had test readings within the prescribed … or your district was operating within the prescribed regime and not in sanctions, people considered that environment was not harmful.

Later, at 21:

MR SPENCER: That is one of the problems, of course, that men do not think that they are working in a dusty environment just because they cannot see dust.

A. That is true. That is why we had or British Coal had a scheme for respirable dust and taking samples and if you were not having those readings above the levels which were indicated -- whether the levels were right or not I cannot pass judgment on that but if you did not have levels that were above that level, you did not think you had a dust problem.

Q. And that we find reflected in your statement, do we not?

A. Yes.

Q. Where in a number of places you refer to endeavouring to comply with the statutory limits as it were, rather than the alternative concept of seeking always to minimise dust?

A. Yes.

Q. And in that regard, you were no different to any other mine managers, were you?

A. I would think that most mine managers worked in the same way because you could not operate in any other way. It would be nice to think that you could bring dust levels down to zero in a mine but it was not practically possible. Legislation was passed to say this was the level you operated to, and that is the level you operated to.

Later, at 23:147:24:

A. I think you have to understand the culture that operated in the coal-mining industry. The line operators in terms of a contractors’ point of view, the employers were like gods, your contract could suffer enormously because you relied on certain other attributes so you tended as a contractor to do exactly what the mine management told you to do.

Mr Jessup later agreed that Thyssen took no steps to monitor the results of the statutory sampling which were displayed in the covered accommodation. His final answers on this aspect of the case were:

A. … I said it was custom and practice within the industry for the mine manager and his representatives to provide the safe working environment with regards to ventilation and dust. The taking of the readings and the performance of how the contractor operated in that fell to those people and it was accepted that would be the system of monitoring.

(22:23:6): Q. Lastly on your statement [C 798-815] … but paragraph 61 “If the mine was within the prescribed limits I would be content with that. The mine looked to being below the prescribed levels. But whether it was a little bit or a lot made no difference to me.”

A. Yes. That is correct.

Q. And that was an attitude endemic throughout British Coal and British Coal mine managers?

A. I cannot speak for every mine manager. I can only speak for myself and the people that I worked with at the time that I was with British Coal - - I think that is a fair reflection of the attitude.

Q. Thank you. That is all you could be asked to provide by way of evidence in relation to that. The culture was one of adhering to dust levels; if that was done, then dust suppression as an objective was regarded as having been achieved. That is right, is it not?

A. I think it was used -- dust suppression was incorporated together with ITP and ventilation rules. That was all part of it. I saw from my personal perspective -- I saw the monitoring of dust levels as an indication of how successful you were with those endeavours.

JUDGE: Well, that is a slightly convoluted answer to Mr Spencer's question which was: the culture was one of adhering to dust levels. If that was done, then dust suppression as an objective was regarded as having been achieved. That is right, is it not? Yes?

A. Yes.

MR SPENCER: Thank you. Contrast that with the culture in the contractors which I suggest is quite different. Yes, dust levels had to be observed but that was British Coal's problem. So far as they were concerned, as long as their heading was not likely to go into sanction and work stopped, all the contractors were interested in was yardage. That was their culture, was it not?

A. Within the rules that were laid down.

Q. Insofar as they were --

A. Enforced.

There followed Mr Jessup a series of managerial witnesses who worked for all the Contractors who make up the Third Party. Mr Pearson having obtained his mining degree worked for the Defendants in various capacities until he became Group Safety Engineer for Nottinghamshire, he finally moved to Thyssens in 1994. A date which coincides with the end of the period of interest in this litigation. Of RDR, he said that in common with other prescriptive legislation, compliance with it would be by measuring dust. He claimed never to have worked under the 1954 Act:

All the way through my career I have worked with the respirable dust regulations so I am not familiar with what the regime was prior to respirable dust regulations. (22:157:8).

It is a matter both of surprise and concern that Mr Pearson can have travelled so far in his mining career without having met section 74 of the 1954 Act. Perhaps surprise should be tempered by recognition of British Coal’s many failures which had been identified in Griffiths. Mr Pearson was asked whether there were any greater problems working with contractors than with British Coal:

A. There were no more problems with contractors than with any other heading set-up. I cannot remember that we ever singled out contractors. There is nothing. I cannot remember an occasion when something happened and it was blamed on the contractors. If there was a dust problem that was leading to sanctions, which is when we got involved, or at stage 1 sanctions, then it was dealt with in very much the same way, whether it was contractors or British Coal.

Q. And how was it dealt with? What was the way of reacting to a place which was, what did you say, heading towards --

A. Well, it may be that on occasions there were investigational samples done, if people were not sure, there were non-statutory samples. So, we may have information prior to statutory samples being taken. The normal trigger for us getting involved at area level was stage 1 sanctions. And then it was: go and find out why. We were representing the owner's function, so far as the structure of the industry was concerned, at area level. So, we would go in and assist the management team at the colliery to find out what the problem was, to take best practice and make sure they were following best practice. (22:167)

The criticism of any such approach is that it was reactive rather than, as it ought to have been, proactive.

Later, in his cross-examination Mr Pearson was asked:

Q. What I am suggesting … is that contractors’ men working throughout these periods … were no different, were they, in seeking to achieve approved standards? They were content with just reaching the approved standard level, were they not?

A. They would be content with complying with the requirements of the contract and complying with the wishes of the colliery and British Coal in general. So they would follow British Coal standards, British Coal procedures, and they would be insisted upon by British Coal. It would not be optional for contractors to do something different.

Q. …

A. …

Q. (The contractors) did not consider their responsibility, did they, any different to anything other then achieving approved conditions?

A. They believed that “so far as reasonably practicable” was complied with by following the best standards in the industry at the time which was led by British Coal, so following British Coal’s lead was seen as doing what was reasonably practicable. (23:38:6)

Mr Homer was the commercial manager for Cementation, having joined the company from ATC (see the case of Bielak) and was largely concerned with the tendering process for his company. As such he was familiar with conditions under which Cementation employees worked underground. His understanding of the relative positions of British Coal and his company’s men was that each owed parallel duties, albeit British Coal owed specific duties under the Act of 1954. His further understanding was that exposure to dust carries its dangers but that, in the context of coal mines, the company relied on British Coal to fulfil its statutory duties. Later, he said that the lead on safety was taken by British Coal and the colliery. At 24:75:17, Mr Homer said:

Certainly in respect of our employees and of the work that they were carrying out, we clearly had a duty under the various Acts, and responsibilities for the safety of our employees and their actions. I would qualify that again in that, from a practical point of view, the safety aspects of our operations were very much governed by the managers' rules and regulations and various safety provisions in place at a particular colliery, which we had to comply with and we did comply with. And that was the driver, rather than us studying the Mines and Quarries Act ourselves and interpreting the Mines and Quarries Act. From a practical point of view, we took what the mine manager said and what his procedures said as our direction for safety.

Q. But can I give you a practical application which may seem obvious? If you went underground as a project manager and you saw your men engaged in a bad practice, let us say that they were running a heading machine without the ventilation bagging being close enough to the face, you would, if you saw it, draw it to the attention of your men, would you not?

A. Yes.

Q. And say: what do you think you are doing? You should have proper ventilation at the face. You would not say: Well, that is matter for the deputy --

A. I would probably draw it to the attention of the deputy as well because I think it is his responsibility.

Q. Thank you, that is most helpful. You would not just content yourself with telling your men they ought to have done it; you would tell the deputy that you have men underground who need to have an eye kept on them. Would that be it?

A. Perhaps not put in that way, but it is a very serious matter if the ventilation is not kept up.

Mr Homer later accepted that he would have regarded himself as having a responsibility to stop a bad practice if he saw his men engaging in one.

The Colliery Ventilation Officers Handbook [N/251] was introduced into evidence by Mr Darrington, a one time Dust Control Officer employed by the Defendants. It is the case that the Handbook made no mention of liaison between the dust control officials at colliery level and contractors who might have been working in a heading. The point to emerge from this apparent omission was that in Mr Darrington’s opinion “overall responsibility for contractors’ heading from the aspects of ventilation and dust control were firmly with the colliery staff” (25:10:9). He later said that ultimately it was the deputy’s responsibility to make sure that there was a sufficient supply of ventilation ducting in the heading and to ensure that it was kept up to the face of the heading. This answer does not indicate, however, that if it was a Contractors’ heading, there would be no responsibility on the Contractors to move the ventilation ducting forward. Neither can it be held to encompass sound propositions of law.

Mr Bradley was a witness of long experience in the mining industry. Like the great majority of the witnesses in the case, he had started underground as an employee of British Coal in 1955. He remained in the nationalised industry until 1966 when he obtained employment with Cementation, for which company he worked until joining Amco in 1974, where he remained until retirement in 1999. It was his evidence, given in statement form (C p179¶39), that the general belief in British Coal was that Contractors could be forced to work more quickly than British Coal’s own men. This was probably due to better supervision than would have been the case with British Coal. Mr Bradley was not aware of any Amco heading going into sanction. But there were occasions when it came close to doing so. The problems were usually caused by driving through hard strata. It was his view that the contractors’ foremen did have a responsibility for safety, although the deputy had a greater responsibility, since he was directly answerable to the colliery manager. This truncated version of his evidence was much expanded during the course of his oral examination. In answer to Contractors’ counsel he said that:

Our (contractor) supervisor was there to ensure maximum efficiency of the operation. The British Coal supervisor was there to make sure that the heading was operated under the law and that we carried out all the necessary safety checks and that we obeyed instructions that the deputy should give. (26:2:24)

Instructions from the deputy, he added, included matters relating to ventilation and dust suppression. Occasionally a heading was stopped if contractors did not comply with instructions. He knew that mine dust is a hazard and that there was no ‘safe’ level, so it had to be minimised. He also accepted that Amco had a duty to make safety devices and protective equipment available to its workforce so as to minimise their exposure to dust. He was almost the only witness to admit that he knew that, before RDR British Coal was not doing all that it ought to have done to minimise exposure of its workforce to inhalation of dust. He refuted the suggestion that Amco subordinated the interests of the safety of its workforce to the achievement of yardage and gave examples why that was not so. He was aware, however, that there was “an element” of yardage involved in the way in which contractors’ men would go about their work. He was reluctant to concede that there was any culture which effectively removed the question of dust control from the responsibility of contractors. It did emerge, however, that the culture did not really change until the introduction of toolbox talks, which only took place in early 1993, too late to have a significant effect on the outcome of this case; see D5/22. He agreed that the culture had needed changing and that contractors and British Coal had worked very hard to change it. He made a revealing answer in cross-examination:

Q. The other proposition is … foremen and underground workers regarded the enforcement of good mining practice intended to minimise dust as British Coal’s responsibility rather than their own. If that was the perception among contractors’ men underground, then that too would indicate … that to some extent at least, management had failed to make sufficiently clear to their underground staff that they themselves had an obligation to minimise dust as well. Would you accept that?

A. I cannot accept it. I know what you are alluding to and I am trying to give an answer that persuades you in my reply that no man will put himself in a position where he is inhaling quantities of dust, if he can avoid it. And part of the culture was not to put himself in that position. (26:34:8)”

Just as Mr Jessup was a man of forceful views, so too was Mr Bradley. They shared in common, in my judgment a failure to be rigorously objective in their evidence. In the last passage cited above, it is self-evidently the case that Mr Bradley knew full well what was the area of weakness which the question had been framed to expose. On the other hand he volunteered that big improvements in safety came about when management took on that role themselves rather than leaving it to a “safety officer”. It is an inescapable conclusion from this, that had a pro-active approach to minimisation of dust been embraced, significant improvements of the underground environment would have been achieved. On a separate, but parallel issue, the wearing of dust masks a topic which is dealt with later, the witness added:

What I can say prior to that, if we did not encourage the use, it was mainly because British Coal were not encouraging their use. This new culture of wearing dust masks whenever necessary, the improvement in safety culture was a gradual thing. It was not a thing which came overnight. (26.42:14-19)

It may not be a matter of any great surprise that the culture as described by the witnesses ever existed. They were, with only the exception of Mr Luthe, whose background mining experience was obtained in his country of origin (West Germany), all men who had grown up under the prevailing culture of British Coal, which was the subject of extensive criticism in the original judgment. Specifically, those witnesses gained their knowledge of respirable dust and its controls while working for British Coal. It was natural for them to have regarded first “approved levels” and later “permitted amounts” as thresholds below which they need not strive to achieve and above which they ought not go.

In closing submissions, the kernel of the Third Party response was that the Defendants’ approach contained an essential fallacy, which was that their own persistent failure to minimise dust necessarily involved the Third Party in co-extensive breaches of their own duty towards their workmen. This fallacy was revealed, it was said, by the proposition that the obligation to minimise dust was “relevant to the manager who controls all aspects of work in the mine including systems for ventilation, dust suppression, plant maintenance and methods of working” so that “the concept of a contractor minimising dust is meaningless”. The justification for this submission was that dust in a mine arises from a number of causes some only of which are within the Contractors’ ability to control. Moreover the contracts did not require contractors to minimise dust but only required them not to exceed permitted amounts. The duty which the Contractor owed to his own men was merely to take reasonable care to avoid exposing his workforce to any agent which he knew or ought to have known was likely to be injurious to their health and to conform to good mining practice.

As has already been demonstrated, much of this reasoning is based on a misapprehension of the meaning and extent of obligations imposed by the contracts which governed the Third Party’s work. I have already held that the contracts, whether in the 1963 or 1989 editions did require the contractors, among other things, to minimise dust insofar as their own operations were concerned. Furthermore, the fact that the Third Party performed its work without complaint from the Defendants provides no sound basis for the conclusions either that they worked so as to conform to the contract or that they were not guilty of negligence towards their workmen, if that was a consequence of their failure to minimise dust. When it is recalled that the Contractors worked, as they did, in accordance with the same culture as that of British Coal, the absence of complaint by the Defendants cannot be determinative of the question whether the Contractors may not also have been guilty of negligence towards their workforce or not. In the original judgment, British Coal have been held to have been guilty of negligence for the very same failures as those which they now assert against the Third Party. When apportionment comes to be considered, while it may be a factor to take into account, that one of the parties may itself have been negligent, it is illogical to say that a party who follows that same procedure may not also guilty of negligence towards its workforce. Nor, in my judgment, does it assist the Third Party to argue, as it did, that British Coal set the standard. The standard which it set was, and has been held to be, insufficient towards its own workforce. If it is the fact that the Third Party was ignorant of the risks to which it was exposing its workers, there was ample evidence, which has already been discussed, that they should have known that if they did not minimise dust their own workers would be similarly exposed to unnecessary risk.

The Third Party further argued that in working as they did they conformed to good mining practice and therefore could not be found guilty of neglect. It was said on their behalf that all that the Third Party was required to do in order to fulfil its duty was to assess the risk, decide what steps should be taken and to know what steps others (the Defendants) were taking in that regard. The Third Party submitted that the scope of the common law duty of care was modified by what the Defendants were required to do under statute and what it was known they would do in the sense that it was the manager who had the means to control all systems in the mine including the duty to minimise dust in the headings in particular through the Managers Scheme under RDR.

In relation to one particular allegation, the failure of the Third Party to use wet picks and drills on all relevant occasions, the Third Party response was that whatever practice Contractors adopted was precisely that which British Coal would itself have used “the British Coal way”. Specifically, it was submitted that:

Our response is that the third party followed the orthodox practice, which was dry drilling in coal or soft strata and wet drilling in stone. That, we say, was the British Coal way. It was put in this way, if my Lord recalls him, by Mr Jim White, who had been a senior British Coal employee and then became contractor's employee. He described it as being "horses for courses". That is, you have a mining practice which involves the use of one particular kind of tool in a particular kind of strata. You do dry drilling in the softer strata. You use the wet drill in the hard strata and the stone. So, what we say is, to the extent that we did this, the third party, we are only doing what the defendants would have done, and the method of work was no different from the defendant's own. But if that should have been changed and a change of practice or a change of tool should have occurred, then this should have been provided for in the manager's scheme, because this is something which is giving off dust. But no manager's scheme was produced or known of, according to Mr Mitchell, that prohibited dry drilling. There is no evidence that the defendant sought to stop that practice. The evidence is that as practice, it was dictated by geological factors and without more, we respectfully suggest it does not bespeak evidence of fault on the third party that they followed the suit of the defendants in dealing with that. We make a particular reference to Turmags and comment at the end of that last paragraph but one on ‘No alternative drill with water suppression that could have been used in geological conditions where Turmags were otherwise used was ever identified by Mr Mitchell.’

The argument that it was reasonable to expect the Third Party to follow the practice of British Coal remained. It was submitted that there was no obligation on the Contractors to investigate the levels of dust to which their men were exposed. That was for two reasons 1: the Defendants had the statutory responsibility to sample air in accordance with RDR and to analyse the results. 2: the Defendants expected the Third Party to work so as not to exceed the permitted amounts and they could be relied upon to notify the Third Party if those limits were exceeded. As has already been seen, this submission takes no account of the fact that the Defendants statutory duty to sample did not relieve the Third Party of its obligation to consider what were the actual conditions under which its workforce was operating. But more importantly it ignores the fact that it was publicly known, or should have been known to the Third Party, that as the annual reports of HMI, over a prolonged period, made plain British Coal was “not minimising dust”. It was part of the Third Party submission that whereas section 74 provided no assistance on how dust should be minimised, RDR did provide the practical solution to that problem. The Third Party submitted that it was neither open nor possible for the Third Party to do what section 74 contemplated. The obverse of this proposition was that given the all embracing prescriptive nature of the duties of the manager and his deputies, there was no scope for independent action (query, thought) by the Third Party when working to the manager’s scheme as it should have been enforced by the deputies. It was, the submission continued “the Defendants’ world which is closely controlled by statute, by regulation, by officials; that does not absolve the Third Party of a duty … . But it does help to identify the scope of the duty”. In amplification of this submission, the Third Party advanced the proposition that the systems employed by the Defendants so far as dust suppression and ventilation were concerned were relied upon by them and could be regarded as reasonable and, implicitly, did not involve the contractors in breach of any duty of care.

Precedent authority was relied upon in support of these contentions. The first case cited was Thompson v. Smiths Shiprepairers (North Shields) Ltd [1984] QB 405 in which Mustill J at p415 identified two allegations of negligence upon which he was concentrating viz. (i) in failing to recognise the existence of high levels of noise which created a risk of damage to hearing and (ii) failing to provide ear protection, between letters B and C said:

There was general agreement that the principles to be applied when weighing up allegations of this kind are correctly set out in the following passage from the judgment of Swanwick J. in Stokes v. Guest, Keen and Nettelfold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, 1783:

‘From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than average or standard precautions. He must weigh up the risk in terms of likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of precautions that can be taken to meet it and the expense and the inconvenience they involve. If he is found to have fallen below the standard properly to be expected of a reasonable and prudent employer in these respects, he is negligent.’

I shall direct myself in accordance with this … statement of the law. … Swanwick J drew a distinction between a recognised practice followed without mishap, and one which in the light of common sense or increased knowledge is clearly bad. The distinction is indeed valid and sufficient for many cases. The two categories are not, however, exhaustive: … The practice of leaving employees unprotected … had never been followed ‘without mishap’. Yet even the plaintiffs have not suggested that it was ‘clearly bad’, in the sense of creating a potential liability in negligence, at any time before the mid 1930’s. Between the two extremes is a type of risk which is regarded at any given time as an inescapable feature of the industry. The employer is not liable for the consequences of such risks, although subsequent changes in social awareness, or improvements in knowledge and technology, may transfer the risk into the category of those against which the employer can and should take care. It is … perhaps impossible to give a comprehensive formula for identifying the line between the acceptable and the unacceptable. Nevertheless, the line does exist, and was clearly recognised in Morris v. West Hartlepool Steam Navigation Co. Ltd. [1956] AC 552. The speeches in that case show, not that one employer is exonerated by proving that other employers are just as negligent, but the standard of what is negligent is influenced, although not decisively, by the practice in the industry as a whole. In my judgment, this principle applies not only where the breach of duty is said to consist of a failure to take precautions known to be available as a means of combating a known danger, but also where the omission involves an absence of initiative in seeking out knowledge of facts which are not in themselves obvious. The employer is required to keep up to date, but the court must be slow to blame him for not ploughing a lone furrow.

This founded the Third Party submission to the effect that as British Coal was the industry, there was no other relevant employer, hence it was reasonable to be influenced by their practice and that there was no reason to know that they were systematically negligent or were “negligently fixated” upon the attainment of approved conditions or keeping within approved limits or below permitted amounts. Mr Maxwell QC adopted the suggestion that the Third Party were not to be found negligent if they were influenced by the practice of the industry as a whole. As supplementing the above submission, reference was also made to the passage in Morris (above) at p423 where, at D, Mustill J said:

In the light of all these factors, one must answer this question. From what date would a reasonable employer, with proper but not extraordinary solicitude for the welfare of his workers, have identified the problem of excessive noise in his yard, recognised that it was capable of a solution, weighed up the potential advantages and disadvantages of the solution, decided to adopt it, acquired a supply of protectors, set in train the programme of education necessary to persuade men and their representatives that the system was useful and not potentially deleterious, experimented with the system and put it into full effect?

Mr Maxwell suggests that the answer to the question posed, assuming that exposure to the harmful effects of dust was substituted for the effects of excessive noise in the shipyard, was “never”.

For the Defendants Mr Spencer QC drew attention to the fact that the Third Party had never challenged any of the findings in the original judgment, indeed those findings were positively accepted. One of the key findings, relevant to the issues in the current litigation, was the date upon which the Third Party should have known that exposure of men to dust underground as the result of mining activities was potentially harmful was the date of the Bedford and Warner Report which formed part of the Medical Research Council Report of 1943. It was not, as Mr Maxwell had submitted, a case of “never”. The experience of the Third Party as mining contractors as contained in their advertising literature justified the decision in the current litigation not to contest any of the Griffiths findings in general and in respect of the date of knowledge of the responsible contractor, in particular.

The Defendants did not rest there. The point was made, as has already been noted, that the great majority of the Contractors’ management were ex-British Coal employees who would have acquired the knowledge, in a general way, of the dangers associated with working underground and the dust produced and circulated there. Contractors’ management was, thus, in a position to make an assessment of the risks, or if they could not themselves do it, then at the least they had the means of finding out what they needed to know if they were to be “solicitous” for their workforce. Mr Spencer accepted the judicial expression which emerged from an exchange between Mr Maxwell and myself (44:2:6) as being essentially correct:

We, on behalf of the third party, see the principal issue in respect of the mining aspect liability issues as being whether the third party acted in accordance with good mining practice, good housekeeping as it was called, and so as not to exceed permitted amounts or, in earlier days, so as not to depart from approved conditions.

JUDGE That is not the ambit of your duty as employer, is it? And specifically, in these proceedings, we are considering the potential liability of your clients as employers.

In further submissions Mr Spencer cited from the seminal decision in this field of jurisprudence Morton v. William Dixon Ltd 1909 S.C. 807, 809 where Lord Dunedin said:

Where the negligence of the employer consists of what I may call a fault of omission, I think it is absolutely necessary that proof of that fault of omission should be of one of two kinds, either - to show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or to show - that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.

In Morris’s case Lord Reid at p571, and quoting from Paris v. Stepney Borough Council [1951] AC 367, said:

Lord Normand having quoted from (Morton’s case) said:

‘The rule stated with all the Lord President’s trenchant lucidity. It contains an emphatic warning against a facile finding that a precaution is necessary when there is no proof that it is one taken by other persons in like circumstances. But it does not detract from the test of the conduct and the judgment of the reasonable and prudent man. If there is proof that a precaution is usually observed by other persons, a reasonable and prudent man will follow the practice in like circumstances. Failing such proof the test is whether the precaution is one which the reasonable and prudent man would think was so obvious that it was folly to omit it.’

In Gallagher’s case, Lord Cooper after expressing some apprehension that Lord Dunedin’s test had been weakened by certain decisions, said that the passage which I have quoted from Lord Normand’s speech ‘reverts to the forcible language of the original formula, and in my view replaces it on the pedestal from which it seemed to be dislodged.’

Lord Dunedin’s statement of the law must now be read with Lord Normand’s gloss and it is important to see what it was that this House held to be folly in Paris’s case. … it was in effect held that by reason of the more serious consequences to a one eyed-man if an accident causes him to lose the sight of an eye, goggles were for him ‘a thing so obviously wanted that it would be folly in anyone to neglect to provide it,’ or a precaution which ‘the reasonable and prudent man would think so obvious that it was folly to omit it’.

At p574, Lord Reid continued:

It was argued that, whether the practice of leaving hatches unprotected was good or bad, the respondents were entitled to rely on it because it had gone on a long time and no one had heard of an accident arising from it. I would agree that, if a practice has generally been followed for a long time in similar circumstances and there has been no mishap, a reasonable and prudent man might well be influenced by that, and it might be difficult to say that the practice was so obviously wrong that to rely on it was folly. But an employer seeking to rely on a practice which is admittedly a bad one must at least prove that it has been followed without mishap sufficiently widely in circumstances similar to those in his own case in all material respects.

It was upon this last excerpt that Mr Spencer relied for his submission that in the present case the practice relied on was a bad one, insofar as the width of the practice was concerned, there was but one comparable employer (British Coal). The greatest stumbling block for the Third Party was their inability to show that the practice had been followed without “mishap”. The very circumstances which brought the parties before the court demonstrated that the practice was attended by systematic and prolonged “mishap”. Furthermore, it was to be recognised that the failings of British Coal were to be seen against a statutory backdrop of a persistent failure to comply with the requirements of s74 of the Act. The submission crystallised into the proposition that if a reasonable employer had given consideration to the problem, he would have realised that the practices of British Coal were as negligent as they were held to have been in Griffiths. Mr Spencer referred to the judgment [P p45] where I said:

It has been recorded elsewhere that the introduction of the (1970) voluntary standard created some difficulty for a number of collieries. What is important to appreciate, however, is that once collieries knew that they were not meeting the standards, they set out devising and implementing schemes for reducing dust which depended, not so much on new technology but, on making better use of existing technology. In large measure they succeeded. The distinction is critical. The fact that without new machinery or technology, those new standards could be met shows that more could and should have been done before that time to concentrate on the task of minimising exposure of miners to respirable dust. This was, of course, the statutory obligation on British Coal which had been introduced by the … Act … and which, statute or no, had been the common law obligation to which they had been subject since vesting day.

Reference was also made to the paper by Bedford and Warner, where quoted at pp18-19 in the Griffiths judgment, which demonstrates that the basic precautions against the production and dispersal of dust were not new science, yet many of those sensible precautions were either neglected entirely or perfunctorily observed; see also Report of Royal Commission on Mines 1938. A further document, also quoted in the Griffiths judgment was the publication by the NUM in South Wales Dust Control in Mines 1959 (see p73) and Mr Goddard’s publication from 1971, referred to elsewhere in this judgment (see pp74-76). Mr Spencer also quoted from p55 of the Griffiths’s judgment:

(T)he concluding submission was that whether standards were met or not, … could not even, if proved, amount to a breach of duty. Of course this may be strictly correct. But British Coal went on to submit that the limited relevance of the evidence in relation to successive standards only lay in assisting the process of calculation of dust exposure of an individual plaintiff. While it does, or may provide that assistance, it does also assist in determining whether or not British Coal’s approach to meeting their common law or statutory duty was likely to have been conducive to its discharge. If the achievement of an arbitrary limit was thought by British Coal to be enough and that no more was required of them and the evidence shows that, in general terms, more could have been done to reduce exposure than was required merely to meet the standard, this will facilitate a finding that by aiming at the arbitrary standard they failed to meet their basic obligation to the work force. Moreover there are obvious weaknesses in a system which permitted the validity of a single sample, if it met the standard, to govern the place to which it related for the whole of the ensuing year. With such a system close attention to the overriding and continuing obligation to reduce dust to the minimum was likely to be ignored, especially was this so if giving that attention was likely to impede production.

It will be recalled that in Griffiths, there was extensive quotation from the annual reports of HMI. These were brought up to date by further quotation [file Z]. In the report for 1976 paragraph 156, it was stated that:

This experience is indicative of the value of regulations in concentrating effort on working places with difficult dust conditions in order to achieve improved results, but despite the high standard of compliance there is no room for complacency. Requirements including the HSW Act 1974 and the … Act (of) 1954 require employers and managers to take such measures as are practicable to minimise the production of dust so, that working conditions are maintained without risk to health. Action to achieve these ends should be taken even if the working place is in compliance with the current statutory standards, which may be reviewed as more knowledge is acquired of the adverse effect of dust. (emphasis added)

This last sentence provides an echo of what had been said by way of covering letter when the draft of RDR was circulated in the industry [V1/6] in which it was said that:

The ‘permitted’ levels have been determined, after extensive research, as likely to reduce significantly the health risks to miners from dust to be generally capable of attainment with present-day equipment and knowledge. These permitted levels will be kept under review and reduced as further advances in dust control techniques make this possible.

Later this document explains that “permitted” levels are not the same as threshold limit values and that they have been chosen in the belief that “nearly all workers may be repeatedly exposed … without adverse effect”. There was evidence from Mr Keeble that Cementation probably had access to these documents in their technical library.

Mr Spencer also referred to other passages in the judgment in Griffiths (P pp 16, 57, 74 and 92) in support of the proposition that the practice of the Defendants did not conform to what was good. Reference was also made to the Deputy’s Handbook [V1/3 p186]. It should be noted that this document had been included by Thyssens in their disclosure and had therefore been available as a source of knowledge for many years. Because of the practice which will be later identified of not always drilling wet, it is worth quoting from this document at Chapter 10 at paragraph 21:

Many of the techniques which are applied to the coal face for dust control and suppression can also be used in drivages. Where the drivage is mechanised, internal feed to the cutting element and efficient external systems for loading machines are essential. Drilling should be done wet, whether percussive or rotary, and wet stemming used for blasting operations. Adequate ventilation for dilution of the dust and regular attention to the overall efficiency of the ventilation system is as important for dust control, as it is for methane control particularly where exhaust systems are used. (emphasis added)

Mr Spencer quite properly drew attention to passages in the evidence of management witnesses employed by the Third Party who directly or indirectly acknowledged that the obligation falling on the contractors was not just to meet approved levels or permitted amounts but, on the contrary to minimise dust.; Jessup - day 21, Homer - day 24, Bradley - day 26, Keeble - day 30 and Luthe - day 32. Reliance on passages from their evidence was also placed on behalf of the Third Party although the emphasis was, obviously different. A section of the Act of 1954 (s90) was also referred to which places an obligation on a person not negligently or wilfully to do, or omit from doing, anything likely to endanger health should be guilty of an offence. The relevance of this was that supervisors employed by Contractors were subject to the sanctions contained in the Act if they wilfully or negligently failed to enforce adequate suppressive methods in their heading. It was not deputies alone who might fall foul of the statutory regime.

That the culture in the mines was, as the Third Party submitted in argument, not seriously in doubt. That the Third Party went along with it, in the main, is also not capable of serious doubt, rather it was the case which they positively advanced as seeking to exculpate themselves from the forensic predicament in which I find that they were. Given that none of the constituent members of the Third Party were other than established and large scale employers of specialist workers in the tunnelling industry contracted to British Coal, there can be no question but that “reasonableness” and “prudence” demanded more of them than mere adherence to the “British Coal way”. Those contractors never came close, by intention, to a fulfilment of their duty of care. “Prudence” and “reasonableness”, those being the qualifications for the fulfilment of the employers’ duty of care in a situation where the allegations of fault consist of omissions to take requisite steps to protect the workforce (see Paris, Morton, Morris and Thompson) were qualities notably absent from any of the proved matters in this case. There is no evidence that the Third Party ever sought or accessed the appropriate literature which was readily available to them, even if not within their own technical resources, within the industry of which they were constituent members. There was, on a daily basis, a wholly unjustified belief that British Coal was fulfilling its common law, and even its statutory, duty to minimise dust. The obligation assumed by contract to co-operate with British Coal in complying with its statutory duty under section 74 never triggered an interest in what compliance with that obligation might involve, even if, as to which ignorance could have been an excuse, they were not aware what this particular provision might require of British Coal, and which in turn should have affected the manner in which work was performed by the Third Party under their contracts.

The factual as well as the legal basis upon which the Third Party has sought to argue that it should not be liable to its workforce by reliance on the “British Coal way” was unsound. If the Third Party, as it should, had decided that precautions were required over and above what British Coal in general, or the Managers’ Schemes in particular, required there was no impediment either in fact or in law in the way of taking those additional precautions. I hold that it had been their positive duty to have done so. It remains to be determined whether on the facts, the conditions under which the Third Party workforce operated from day to day fell short of those which would have obtained had they complied with their common law and contractual duties.

The starting point for the consideration of this topic is of necessity the Mines and Quarries Act 1954. This was a piece of major legislation and was the first legislative attempt to reflect the findings in the Report of the Royal Commission on Coal Mines, 1938. The Commission investigated, among many other matters, the incidence and causes of lung diseases from the inhalation of fine dusts. It is of interest to note that there was discussion of the need for dust standards and of the means which, by then, were already available for suppression. In particular, there was discussion of the need for wet percussive drilling and the advantages of rotary over percussive drills. There was also recognition of the special need for precautions against dust resulting from shotfiring, especially in confined headings together with the possible advantages of the use of mist projectors; see p404 of the Report.

It is notable that section 1 of the Act places a duty on the owner of any mine to secure that it is managed and worked in accordance with the provisions of the Act and orders and regulations made by or under it. Section 2 forbids the working of any mine unless a “sole manager” with appropriate qualifications has been appointed by the owner and goes on to provide:

(1)

…

(2)

The manager of a mine shall have the management and control of the mine, exercisable subject to any instructions given to him by or on behalf of the owner …, and shall also

(a)

have the duty of securing the discharge by all others of obligations imposed on them with respect to the mine by or by virtue of the following provisions of this Act; and

(b)

have such duties with respect to the appointment of persons to carry out inspections of the mine and to be in charge of, or to supervise or conduct, operations thereat, and such other duties, and such powers, as are imposed or conferred on him by virtue of the following provisions of this Act.

It is this section which is the foundation of the hierarchical structure of mine management, one of the prime purposes of which is to ensure that the mine, which is a mixture of many different systems which to be effective must inter-lock one with another, is managed in a controlled and coherent manner. It was the case put by the Third Party that this statutory scheme was intended to provide for one source of discipline and instruction, namely the manager, acting generally through the officials and in particular, the deputies; see The Coal and Other Mines (Managers and Officials) Regulations, 1956. Where relevant, these Regulations provide that:

9.(1) In every mine competent persons appointed by the manager as deputies shall during his shift in the district assigned to him

(a)

have the immediate charge of the workmen for the time being in the district and of all operations carried on by them …; and

(b)

make such inspections and carry out such other duties with regard to … general safety (including the health of persons working in the district) as are required by the Act or by regulations (including these regulations).

(2)

Subject to the next … paragraph, every (such) deputy shall devote the whole of his time during his shift to the duties specified in the last … paragraph …

Regulation 12 makes provision for pre-shift inspections by deputies. Then:

15.(1) Every deputy … shall at least twice during (the) shift inspect every part of that district which is required to be ventilated to ascertain the condition thereof as regards … the general safety in such manner that –

(a)

no place at which workmen are at work shall remain uninspected for more than four hours …

18.

Every deputy … shall –

(a)

record the names of the workmen under his charge in that district during (the) shift; and

(b)

take all reasonable steps to ensure that such workmen understand and carry out any duties which fall to be performed by them in order to secure compliance with all requirements imposed by or under the Act or to secure the safety or health of any person employed at the mine.

19.

Every deputy … shall take all reasonable steps to ensure that –

(a)

all machinery, apparatus and other equipment in use in (the) district is properly maintained; and

(b)

no machinery, apparatus or equipment which is found by or reported to him to be in an unsafe condition is used while in that condition.

Under the Coal and Other Mines (General Duties and Conduct) Regulations, 1956 every person employed at a mine is required to “obey any instruction relating to safety, health or welfare given to him” by (among others) a deputy.

Specific provision is made under the Coal and Other Mines (Explosives) Regulations, 1961 for close control of shotfiring. Regulation 8 forbids any person to fire a shot unless he is “competent” and “the holder of a shotfirer’s certificate”. Regulation 15 forbids any person who is not a shot firer or trainee shot firer from being in possession of a detonator. Regulation 21 requires the owner of the mine to equip the shot firer with a wooden tool for use in charging or stemming shot holes as well as a scraper for cleaning them out. This last provision is to secure that the practice of directing a blast of compressed air into the shot hole to clear it of dust and muck (clearly a “dust” related provision) is not followed; see Regulation 28(2). There is then a bundle of Regulations concerned with the charging of shot holes. Only shot firers, or those under their supervision may charge a shot hole; Regulation 30(1). Only a complete cartridge may be used to charge a shot hole: Regulation 31(2)(a). No person may remove any of the external sheath when such is present, from a cartridge; Regulation 32(3). Nor may a shot hole be overcharged. Shot holes are to be stemmed “with sufficient suitable … stemming to prevent a blown out hole”; Regulation 33(1). Only wooden tools may be inserted into a charged shot hole; Regulation 33(2). Then it is provided by Regulation:

43.(1) Every person who has fired a shot shall thereafter –

(a)

ascertain by a personal inspection whether it is safe for ordinary working to be resumed in each working place affected by that shot;

and

(b)

ensure that any necessary action is taken to make each such [place safe for such working.

(2)

Where a round of shots has been fired the person who fired the round –

(a)

shall not make an examination, if it was a round of six shots or less, before the expiry of five minutes, or in any other case, before the expiry of ten minutes.

The provisions in the Act of 1954 which are of particular interest for the purposes of this judgment are section 55 and 74. The former provides as follows:

(1)

It shall be the duty of the manager … to take such steps as are necessary for securing that there is constantly produced in all parts of the mine below ground level ventilation adequate for the following purposes, namely –

(a)

diluting gasses …

(b)

providing air containing a sufficient supply of oxygen.

(3)

In the discharge of the duty (as in (1), above) the manager … shall have regard to the desirability of securing (consistently with the discharge of that duty) the maintenance … of working conditions that are reasonable so far as the … amount of dust therein.

The key section for present purposes is 74, which provides:

(1)

It shall be the duty of the manager … to ensure that in connection with the getting, dressing of minerals below ground … the giving off of –

(a)

…

(b)

dust of such character and in such quantity as to be likely to be injurious to the persons employed;

is minimised.

(2)

where, in connection with the carrying on of any operations or process below ground … there is given off dust that is … of such a character and in such quantity as to be likely to be harmful to persons employed, it shall be the duty of the manager to ensure –

(a)

that the entry of the dust into the air … is minimised by means of steps … taken as near as possible to the point of origin of the dust;

(b)

that any of the dust which enters the air is trapped or so dispersed as to render it harmless;

It will be noted that the duties imposed by this section are of an unqualified nature, that is they are not only to be complied with “so far as reasonable practicable” and are, therefore, absolute.

The section concludes with the power to impose regulations on managers for the purposes of enforcing its substantive provisions. None were ever made. It was not until The Coal Mines (Respirable Dust) Regulations 1975 (RDR), some 20 years later that any regulations “in that behalf” were made, and even then they were made under the Health and Safety at Work Act, 1974.

A significant element in the Third Party’s submissions and, indeed, throughout the case was that the statutory framework, under which the Defendants were required to operate, effectively defined the duty and limited their freedom to work as they thought best. The effect of the statutory provisions was summarised in the defence and counterclaim and extended to some 10 pages, but the restricting effect, which the regime imposed, also featured at length in both opening and closing submissions made on the Third Party’s behalf. It was said, and in my view correctly, that the hierarchy, in an underground coal mine, was “clear and defined”. The Defendants were of the view that they had control of all persons including contractors’ men in all their collieries. This was made plain by the technical director of British Coal when he gave evidence to the Energy Committee of the House of Commons in 1990 [V1/5]:

Every contractor’s accident which occurs underground in a mine is supervised under the very same system as that by which British Coal employees are supervised under the very same system as that by which British Coal employees are supervised: in other words, by a system of deputies, overmen and under managers and, eventually, a colliery manager [Page 100 col 1]

Every private contractor is obliged to have his people trained to the same standard as British Coal people. Every private contractor, once he arrives on the premises, is under the same supervision system, which is very intense under ground … as British Coal labour; and every private contract has got at the very least a British Coal-employed deputy in charge of that local site and he has the authority and the responsibility to enforce safety, just as he has with British Coal men. [Page102 col11]

(I)f the contractors’ men are employed in circumstances where they are part of a colliery deputy’s district the colliery deputy is to have immediate charge of those workmen, irrespective of who they are employed by. … (H)aving been a colliery deputy, with contractors’ men under my charge, it is easier to control contractors than British Coal labour, because all you have to do, if they are not doing as they are told, is you just knock the switch out and say ‘I will put that back on when you do as you are told.’ [Page 103 col 2]

See also First Report of the Energy Committee, Safety in Coal Mines 1990. It was said that it was a consequence of the statutory system of responsibility in respect of health and safety underground that there could be only one system of work, namely that which was established and approved by the Defendants. This statement draws strength from the above excerpts from the evidence of Mr Moses. This was a feature which was explicit, not only in RDR which imposed duties on officials of the mine in respect of sampling, provision of respirators and the creation of a Manager’s Scheme, but also in the 1954 Act and all the Regulations and Orders made under it, to some only of which has reference been made above. It represents the high water mark of the Third Party’s case.

The history of the development of satisfactory methods for sampling dust was exhaustively set out and discussed in the original judgment [P16-63]. It will also be recalled that, over many years, and for reasons which to it seemed good at the time, British Coal had been averse to the extension of statutory regulation in regard to the control of dust. This attitude serves in part to explain why the regulatory powers in section 74 of the Act remained unused. Its importance in relation to the sampling of dust can best be assessed in two short extracts taken from the judgment in Griffiths, thus:

[P16] Much time was taken up during this hearing with the problems which confronted British Coal (in) finding effective means of quantifying the dust to which men were exposed. Many learned papers have been written on the subject and were referred to in evidence. It is sufficient to observe that although the subject was obviously important, it was in a distraction both to British Coal as an operating entity and in this litigation. The fundamental task which was of concern to British Coal, in this context, was reduction of the exposure of their workforce to harmful dust. It was necessary that British Coal should have been able to evaluate the success or failure of the efforts made to achieve that purpose. It was also relevant for the purposes of this litigation that the court should be informed by the results of the evaluation since that is one of the criteria by which liability will fall to be determined.

[P56] If the achievement of an arbitrary limit was thought by British Coal to be enough and that no more was required of them and the evidence shows that in general terms, more could have been done to reduce exposure than was required to meet the standard, this will facilitate a finding that by aiming at the arbitrary standard they failed to meet their basic obligation to the workforce. Moreover, there are obvious weaknesses in a system which permitted the validity of a single sample, if it met the standard, to govern the place to which it related for the whole of the ensuing year. With such a system close attention to the overriding and continuing obligation to reduce dust to the minimum was likely to be ignored, especially was this so if giving that attention was likely to impede production.

That was the position prior to RDR. The Regulations make detailed and complex provision for the taking and treatment of samples and as to the consequences if the samples failed to meet the standard. Monthly samples are to be taken in each working area and if the dust index and quartz content (the permitted concentrations of which are separately defined) revealed by the sample do not exceed the designated quantities or do not show a specified increase over the previous samples, only one sample need be taken on the next (monthly) sampling occasion. If the sample is in excess of the permitted index, then 5 samples are to be taken over the ensuing 7 shift days. Provision is made for different indices to be applicable for different workings in the mine and for coal and other dusts as well as for quartz. So that there should be public knowledge of what the samples revealed, the manager of the mine has to ensure that the results of each sampling operation are displayed in the covered accommodation at the mine; see by way of interest the evidence of Mr Luthe (above). If the readings exceed the permitted amount, the manager is required to notify the Inspector (of Mines) of the steps which he proposes should be taken to reduce the amount of respirable dust in the relevant working or he should discontinue that working. If the next sample readings are still in excess of the relevant amount, the manager is required to discontinue that working. These phases of control are known as “stage 1” and “stage 2” sanctions, of which more later.

It is to be noted that the RDR do not by themselves seek to specify how the manager is to meet his obligations under the Regulations, in relation to dust levels generally, since that is provided for by section 74 of the Act. On a proper reading of the Regulations, the manager is required to ensure that the samples, the taking of which is carefully prescribed, do not exceed the permitted amount, but he is allowed to continue the workings either absolutely or contingently if the reading is in excess. The duty created by section 74 remains, namely, to minimise “the giving off of dust” and to disperse the dust which enters the air so as to render it harmless. The Manager is also required to ensure an adequate supply of respirators to be made available.

The cumulative effect of all these provisions was said to be that:

Moreover, There had to be one established method of working and one set of practices to be followed, namely that laid down by NCB/BC.

The almost universal exclusion of contractors from any positive involvement or input into dust suppression policy (as opposed to operational features) can also be seen in the way in which consultative committees both at colliery and area levels were organised.” [V¶69]. Contractors were excluded from any of the many and varied managerial and statutory functions in regard to the management of the mine. This extended to the act of 1974 and included the way in which RDR was structured and operated. Had it been otherwise, the risk that uncoordinated activities would have created danger would have been a real one. In addition to the sampling provisions, briefly noted above, an important element within those regulations was the Manager’s Scheme. Provision for this was made by Part IV of RDR, regulation 12, under which the Manager of a Mine is required to prepare a scheme for the prevention and suppression of dust. The scheme makes provision for the Manager :

(1)

… to ensure that there is at all times in force a scheme for the provision of apparatus for the minimising the giving off of dust and for the suppression of dust which enters the air and for the taking of any other steps in that behalf.

(2)

Every such scheme shall specify –

(a)

the apparatus to be provided;

(b)

the systematic examination and testing of the apparatus to ensure the proper maintenance thereof …the nature of the examination and testing to be carried out … and the manner in which the results of every examination and test … are to be recorded; and

(c)

any other steps to be taken for the minimising the entry of dust into the air or for the suppression of dust which enters the air.

Regulation 14(3)(b)(ii) provides that the owner of the Mine is:

to appoint a competent person to carry out the examinations under Regulation 12 and to ensure that the provisions of the scheme are executed and enforced.

It was to be hoped that evidence would be forthcoming of the general nature of the schemes which were promulgated under this regulation. It was the case, however, that of all the many thousands which must have been prepared between 1975 and 1994, fewer than ten such schemes appear to have survived or, at any rate, made available in this litigation. One, which was only of value because it showed what could have been achieved in its detail comes from the period after privatisation at Wistow; see UK file. The others principally related to the Welsh Coalfield, and can at best be described as rudimentary; see e.g. I8 5587. These are to be seen by way of contrast with the model scheme which had been prepared by the Department of Energy and sent to the Defendants under cover of the letter 11 October 1974 enclosing a revised draft of RDR. The model manager’s scheme and the Notes for Guidance on Airborne Dust Legislation will be found in Q pp 128 to 134. In comparison with the guidance which was made available to the Defendants, the managers’ dust suppression schemes which have survived represent a poor attempt to achieve an acceptable standard. They were made the subject of a comparison by the Third Party’s expert engineer in E2 at pp38 to 41 of his Supplementary Report. The relevance of this consideration is that there was also evidence from the Defendants’ expert engineer, Mr Mitchell, that after RDR came into force managers’ schemes became the criteria under which Contractors working underground ran their operations. In other words, contractors worked to the managers’ schemes and did not try to improve on them. This gave rise to the suggestion, which was canvassed both in evidence and submission, that it was not open to contractors to do so. I reject the notion that mere compliance with any manager’s scheme was sufficient to absolve Contractors from taking further measures to reduce the exposure of their workforce to excess concentrations of respirable dust. In my judgment, they were free to adopt any measure which they chose, so long as it did not impinge adversely on the manager’s scheme and it had the intended effect of minimising dust. Because of what the Third Party saw as the “culture”, the attempt was never made.

Among the many different Regulations, which are all to be found in volume Q/6, the principal ones of concern in this litigation are the Coal and Other Mines (Ventilation) Regulations 1954 which, in addition to supplementing the provisions of section 55 of the Act make specific provision for the use of auxiliary fans. Auxiliary fans are the principal if not the sole means by which headings, which are by their nature blind can be ventilated by the ventilation system in the mine. It has to be recognised that such ventilation is part of the ventilation system of the Mine and subject, therefore to the Manager’s Scheme. Importantly, by regulation 24, no auxiliary fan is to be placed in a mine unless the manager is satisfied that it cannot recirculate air and it will not be contaminated by dust. By Regulation 25, the manager is required to fix the minimum quantity of air to be delivered through or extracted by the fan, he is also to secure that at least once per week a competent person is to measure the quantity of air being delivered or exhausted by such a fan. It will appear that there was a systematic error of measurement of the quantity of air delivered by forcing fans; see section on tortious dust later. An auxiliary fan is defined as one which is to be used below ground “wholly or mainly for ventilating a heading, drift or blind end;” regulation 33(1). As has already been mentioned, all matters connected with the supply of ventilation, including the design of the means of ventilation, other than the installation, maintenance and moving the dusts or baggings to within the appropriate distance of the face of the headings, were the sole responsibility of British Coal.

What the Third Party sought to extract from this discourse on the comprehensive statutory framework was that there “had to be one established method of working and one set of practices to be followed (by contractors) namely that laid down by British Coal”. It was also submitted that:

The status of the Manager and his Officials and their authority and powers were such that there was no room for independent activity on the part of a contractor. The mine was so organised that the contractor had to fit in with existing arrangements. V1¶53.

None of these provisions it was said had to be complied with by the Third Party. In one sense this submission is an accurate statement of the statute law. It will not have been lost on the reader that the contracts under which the work was being performed recognised the reality of the position. In the chapter on The Contract Issues, I have explained how they operated so as to require Contractors to work in such a manner that British Coal was not thereby put in breach of its statutory duty. This point made by the Third Party is, thus, of limited, if any, effect.

In the end, despite the lengthy and attractively argued final submissions on the efficacy of the statutory regime which operates in a coal mine, I remain quite unconvinced that it can or did operate so as to exclude the liability at common law which the Contractors owed to their workmen. The finding made at the end of the preceding chapter is unaffected by considerations of the statutory regime. But this is not to say that when considerations of apportionment are taken into account, they will not be relevant to issues of causation and culpability; see later chapter on Tortious dust.

By way of preface to this section of the judgment, it is essential to note that the legal responsibilities of the parties and their respective causative effects must be allocated with some degree of precision to the different activities which determined conditions in the Contractors’ places of work. In addition, and at the appropriate stage, issues of culpability will also have to be determined. In the period of the employment of a claimant by British Coal, there is of course no problem, except as to apportionment between such period and the period of employment by the Contractors. It is in regard to this latter period of employment by the Third Party where careful delineation of the responsibilities is necessary.

On the assumption that the Third Party was guilty of causative fault, that is fault which must also be held to impact on the Defendants. The reason is obvious, in that to the extent to which the Third Party did not attend to all the dust suppressive measures which it should have done, by virtue of their statutory duty under section 74, the RDR and through the deputies under Regulations 9(1) and 19(a) and (b) of the Managers and Officials Regulations, 1956, there will be a resultant liability imposed on British Coal. But this is not the only basis of liability which lies with British Coal since they would also have, what may be described as, their own “original liability” in respect of uncontested failures in regard to such matters as intake contamination, insufficient ventilation quantities and selection, for the purposes of contractual works, of the least optimal systems of auxiliary ventilation and the like and for which the Third Party had no direct responsibility. As will be seen, however, the position becomes less clear cut when the subject of respirators comes to be considered.

In Griffiths, the Court held that:

In the endeavour to find, in the individual case, the extent to which any particular miner was exposed to excessive or tortious dust, implicitly there are two base lines for which search has to be made. Specifically this means that a measure has to be found for total exposure and, secondly, the theoretical minimum exposure to which only such miner was or should have been exposed; P p85.

It was only in relation to the difference between these two measures that recovery could be made. The judgment proceeded to a discussion of the difficulties which existed in the way of arriving at either appropriate measure. The first of these difficulties was the inherent objective unreliability of eyewitness evidence because of the inevitable tendency to attribute blameworthiness to what is memorable, which in that case was visible dust clouds, and, secondly, to discount what may appear to be of less significance, namely relative sparsity of visible dust in the atmosphere, although the dust with which both Griffiths and the present case are concerned is invisible to the naked eye. There is no means of telling that the one is more or less harmful than the other, although Dr Ford was of the opinion that this proposition did not necessarily hold good save with an exception. D11/2.

In the present litigation, with but one or two exceptions of limited duration and no material relevance, unlike the evidence in Griffiths, no evidence of measurements of levels of respirable dust has been placed before the Court. One of those exceptions relates to the Treforgan Colliery and Red Vein Seam drivage in about 1976-7, and does not assist in a practical manner with any endeavour to ascertain dust conditions elsewhere, at other times or in other mines. Apart from these, the Court has been left with the Ford paper [V1/4/1] which relates to the period 1986 to 1990, the general comments in the annual reports of HMI and the published statistics in relation to the imposition of sanctions both in drivages, as well as faces, in the period 1976 to 1993; see chart on the next page.

Key:

By no means could all these causes be regarded as attributable to the fault of either party to the present litigation; hence, causes 1,2,3,9 and (14). In the course of their concluding submissions counsel compiled a new table, which became an agreed document, setting out, in percentage terms, reasons why drivages, rather than faces, went into sanctions.

This table can be refined by attributing to each party those causes which are clearly attributable to their operations. Thus, causes 3a, 4, and 6 can be allocated to the Defendants with the remainder to the Third Party. The table can then be simplified and the figures rounded to produce:

This table enables an overview of responsibility for conditions in headings in which Contractors were working insofar as what is termed “original fault” on the part of the Defendants was concerned. What it does not do is reflect that part of the responsibility which was attributable to the fault of the deputy adequately to supervise Contractors’ work for which there would be a shared responsibility; see later.

There are, in addition, a few contemporary documents which show that in isolated cases there were local problems, but there was nothing approaching the core of the evidence which was before the court in Griffiths.

In broad terms, so far as the creation and dispersal of dust is concerned, there is a comparison to be made between the old hand-got faces and bore and fire headings, on the one hand, and machine cut faces and mechanised headings, on the other. In the former category, the outstanding comparison with the later machine headings and faces was the cyclical or periodic generation of dust, the quantity of which will have depended on the point in the cycle at which the “measurement” is taken. In the latter, the generation of dust was more consistent, although peak concentrations may have been lower. Although peak concentrations will have existed for a substantial part of each shift, these will have been while machine cutting and loading out were taking place. At times when arch setting was taking place, the principal source of dust will have been from intake contamination and inadequate ventilation quantities. It is well to remind the reader that COPD is the result of a cumulative life time exposure to respirable dust, so that relevant exposure is the product both of concentrations of dust and the period of exposure. Hence the importance of factoring into this question of apportionment, the fact that in south Wales, in particular, extended shift working was commonplace in addition to week-end working.

Dr Ford’s paper (above) was more concerned with accurate measurement of dust levels than with absolute levels. However, the fact that measurements were shown by his research both to have been inaccurate, because of measurement error, and unreliable, because of operator malpractice, clearly impacted on the ability of British Coal to have a true picture of dust conditions in headings, whether they were operated by themselves or by the Third Party. The paper also demonstrates that mechanised headings experienced problems in containing dust levels which were as much due to conditions over which contractors had no control as those over which they did; see the tables above. From this evidence it is possible to extract causes for which the Defendants were solely responsible and those where responsibility would be legally shared. In the latter case, although the legal responsibility would be shared (concurrent liability), the extent to which the Defendants would be found liable would be influenced by the fact that their liability would be derived from the initial failure by the Third Party to have minimised dust in accordance with their contractual as well as common law duty. In their closing submissions, the parties placed figures before the Court which, if taken at face value, suggested that it was possible realistically to allocate specific and proportionate levels of dust to the various acts and omissions which resulted in an excess of dust in headings. These were no more than figures “plucked out of the air” and provided no real assistance to the Court in arriving at a distribution between dust for which the Defendants had liability and dust for which both the Defendants and Third Party had responsibility and, in both cases, how that responsibility should be shared.

The Ford paper sought an answer to the question “what were the factors which were responsible for high dust levels?” In the Summary it was said that:

(T)he principal reasons for high dust levels were failure to comply with known ventilation requirements for good ventilation and dust control, (ie [a] adequate airflow and [b] correct duct positioning, and [c] excessive pollution of intake air. A contributory factor, which resulted in inadequate airflow at a number of sites was [d] misleading information obtained from inaccurate airflow measuring techniques. Airflows below the Manager’s Minimum Quantity were measured at six of the eleven collieries visited. [letters added, see below].

Of these four, comment can be made as follows:

The reasons for this anomaly were exhaustively investigated during the course of this hearing and, as a result, two main ones were identified:

1.

Routine samples were often taken by the colliery Dust Suppression Officer who would check that all of the available dust suppression measures were in use before commencing sampling. The check sampler on the other hand gave very little warning of his arrival and the sample was taken in whatever conditions prevailed.

2.The routine sampler would frequently complete his shift before the check sampler and thus only sampled part of the shift.

It is a melancholy fact that much the same remained true after RDR came into force. In a revealing part of his oral evidence, Dr Ford was asked, in relation to his paper [V1/4p8¶5.1], whether or not sampling used to take place “to achieve the lowest concentration” (37:110:22) his replies on this topic were as follows:

A. There is that tendency, yes. It is by human nature. That is why we have a check sampling system. One of the reasons.

Q. Therefore, you were recommending, were you not, a change in the routine sampling position?

A. That is correct, my Lord.

Q. But you also found, did you not, that dust sampling staff needed to be more closely supervised?

A. Yes.

Q. Possibly by under-officials?

A. Yes.

Q. And you also found that the check sampling system did not have sufficient teeth?

A. That was my recommendation.

Q. This is paragraph number 3, under 5.1, ‘Dust’, you also wanted it to be upgraded.

A. Yes.

Q. And then, you also were aware of a problem of, as you put it, the motorist paying the policeman.

A. Yes.

Q. What did you mean by that?

A. The actual dust sampler who was employed at the colliery, by the colliery.

Q. What is the problem with that?

A. Well, there could be pressure applied to the sampler. It could be applied; I am not saying it happened, but the results he got -- well, it is the motorist paying the policeman situation.

Dr Ford also agreed that the problem highlighted in this passage was one which had existed for many years, the effect of which was that a number of loopholes existed in the Regulations and these were exploited. A further weakness exposed by the Ford study, was the inaccuracy of ventilation measurements due to the type of measuring instrument employed. The result was that, in force ventilated headings, there was an over-measurement of the airflow which led to a shortfall of design ventilation quantity possibly, to the extent of about one third. This was a generic deficiency which had existed for a number of years which had not been discovered until the Ford investigation and the paper had been circulated to Areas sometime in 1991; see for example J p27¶5.1.

Ventilation quantity, assuming that the duct has been properly maintained, is the clear responsibility of the Colliery Manager. For the remainder of the points itemised in this extract from the paper, it can, I believe, be fairly said that none are ‘state of the art’ which should have been outwith the experience and capability of an experienced contractor to have controlled. It is true that in the great majority of contracts, the Defendants specified what type (forcing, exhaust or overlap) was to be provided, it remained for the Contractors to install and maintain that ventilation themselves and they should not have needed supervision from an official of the mine to have produced the optimum result.

Dr Ford was also critical of the widespread use of forced ventilation. This form of ventilation, he considered only to be suitable in machine cut drivages where there was a high emission of methane – which would be in only a significant minority of cases. During the course of Dr Ford’s evidence a table was prepared, and subsequently agreed, which showed the proportions in which headings were ventilated in the period 1987 to 1993. It is relevant to include it here:

An explanation for the reduction in the use of forcing ventilation was that the numbers of headings which were driven by bore and fire methods, where the use of this type of ventilation was the preferred method, was finally reduced. This change had been a long time coming. An additional matter for consideration is the velocity of air movement at the face of headings where ventilation was either exhaust or overlap. It was Dr Ford’s evidence that for a period of up to 15 years it had been known that if the velocity air was maintained at about 0.5 m/s that would prevent dust back up “under all operational conditions”. There was no technical reason why this problem could not have been dealt with during that period; there was an uncomfortable suggestion that the expense of providing the necessary equipment was the explanation.

In Griffiths, the possibility that difficulties, which the absence of evidence from which a quantitative evaluation could properly be made of actual dust levels, might have led the court to hold that the plaintiffs had not proved their case was one which was rejected on grounds of policy; see P p283-308. It is worth quoting from p307 where, in the passage which starts with a quotation from the judgment of Mustill J in Thompson v. Smiths Shiprepariers (North Shields) Ltd [1984] 1 QB 405, this topic is extensively reviewed:

The court should make the best estimate … it can in the light of the evidence … In the end notwithstanding all the care lavished on it by the scientists and by counsel I believe this has to be regarded as a jury question.

Because it could be argued that ‘uncertainties’ should be resolved in favour of defendants if there was to be a proper reflection of where the burden of proof lies, I have deliberately omitted from this quotation the words ‘making the fullest allowances in favour of the plaintiffs for the uncertainties known to be involved in any apportionment’. But this may be no more than pedantry. What is, I believe, beyond question or serious argument is the fact that apportionment cannot be satisfactorily achieved by reliance on numbers, whether they be of exposure to dust from day to day, to year to year, or over the whole period of employment. No more can numbers suggest, let alone dictate, what impact a known and tortious dust exposure will have on the ventilatory capacity of any individual. Nor yet is it possible to arrive at any measured extent by which dust at any given moment or over an extended period exceeded the non-tortious quantity – whatever that amount might be. All these considerations must ineluctably impose on the court a solution sometimes praised, sometimes vilified and most often not fully understood that the solution has to be found as an answer to a ‘jury question’. All that this expression means is that the reasoning underpinning the decision is not susceptible to precise quantification or analysis but it is one announced after paying careful attention to the evidence given, and argument made, in relation to such evidence as is available to the court.

This passage might well have been written in the knowledge that the present litigation would take place. It is the fact that the plaintiffs in Griffiths overcame the difficulties of proof referred to above.

In the sense that considerations of policy do not necessarily demand a solution between two parties, where what separates them is a dispute about where the financial consequences of their joint tort should be found to lie, the Court might decide not to intervene unless there was sufficient proof where, and in what proportions, liability can be attributed. The circumstances in which the parties to this litigation find themselves, however, are not so compelling as they were in Griffiths. But rejection of the Defendants’ claim on the basis of an insufficiency of proof is not a solution which, I consider, would properly reflect the underlying nature of this litigation. In reality, and in order to succeed, if the Claimants had sued the Third Party alone in respect of the respiratory injury suffered during the period of their employment, they would have had to show that, in the light of the manifold breaches of duty on the part of their employers over the years, it was more likely than not that their respiratory injury had been caused thereby. It would have been not merely an unmeritorious result if there was to be no recovery because the Court could not be sure just how much respiratory injury had been caused by those breaches of duty, it would, I consider, have led to a great injustice. In my judgment, also, it would not have been a result which properly reflected the current state of the law. Such an approach would ignore the fact that, by reason of the many generic and persistent breaches of duty by the Third Party towards the Claimants, there is an overwhelming case, in my judgment, for saying that the injury was caused, or facilitated. by that negligence, on the basis that:

(1)

the principle is designed to resolve the difficulty that arises when it is inherently impossible for the claimant to prove exactly how his injury was caused. It applies, therefore, where the claimant has proved all he possibly can, but the causal link could only ever be established by scientific investigation and the current state of the relevant science leaves it uncertain exactly how the injury was caused and, so, who caused it. McGhee and the present case are examples

(2)

part of the underlying rationale of the principle is that the defendant’s wrongdoing has materially increased the risk that the claimant will suffer injury. It is therefore essential not just that the defendant’s conduct created a material risk of injury to a class of persons but that it actually created a material risk of injury to the claimant himself

(3)

it follows that the defendant’s conduct must have been capable of causing the claimant’s injury

(4)

the claimant must prove that his injury was caused by the eventuation of the kind of risk created by the defendant’s wrongdoing. In McGhee, for instance, the risk created by the defendants’ failure was that the pursuer would develop dermatitis due to brick dust on his skin and he proved that he had developed dermatitis due to brick dust on his skin. By contrast, the principle does not apply where the claimant has merely proved that his injury could have been caused by a number of different events, only one of which is the eventuation of the risk created by the defendant’s wrongful act or omission. Wilsher is an example

(5)

this will usually mean that the claimant must prove that his injury was caused if not by exactly the same agency as was involved in the defendant’s wrongdoing, at least by an agency that operated in substantially the same way. A possible example would be where a workman suffered injury from exposure to dusts coming from two sources, the dust being particles of different substances each of which, however, could have caused his injury in the same way

(6)

the principle applies where the other possible source of the claimant’s injury is a similar wrongful act or omission of another person, but it can also apply where, as in McGhee, the other possible source of the injury is a similar, but lawful, act or omission of the same defendant. I reserve my opinion as to whether the principle applies where the other possible source of injury is a similar but lawful act or omission of someone else or a natural occurrence”

See Lord Rodgers’s tests in Fairchild v. Glenhaven Funeral Services Ltd [2002] UKHL 22 [2003] 1 AC 32 at paragraphs 169, 170.

In this litigation, given the difficulty of disentangling the causative potency of the acts and omissions of both British Coal and the Third Party, had the claimant only sued the latter, the court, in my judgment, would have been driven to conclude that principles, or examples (5) and (6) in Lord Rodgers’s analysis would have been applicable and recovery would have been had against whichever defendant the claimant had elected to sue.

In my judgment, therefore, from a theoretical standpoint, it was not essential for the Defendants, at this stage in the legal analysis, to prove that the Third Party’s acts or omissions caused the claimant’s injury. But what they had to do was prove that the Third Party’s wrongdoing had materially increased the risk that the Claimant himself, and perhaps others besides, would suffer injury as the result of the relevant (tortious) acts or omissions. Given the findings of generic fault which will be made against the Third Party (see next section), there can be little doubt that any claimant, who could prove that he had suffered as the result of the exposure to the risk which had eventuated from those acts or omissions, would have recovered from the Third Party.

A common feature of both oral and statement evidence was of repeated failures to move the ventilation forward as the face advanced. These failures occurred by whatever means the heading was ventilated. The reasons for this are understandable, but cannot be excused. Time spent adjusting and maintaining the ventilation ducting was time not spent advancing the face of the drivage, by which the contractors commercial outturn on the job depended, as well as the bonus payments which the heading team might or might not receive. But again, there would have been a shared responsibility between Contractors and the Defendants because of the failure of the deputy adequately to have supervised operations in the heading.

As to the operations in the headings themselves, as already indicated, there is a distinction to be drawn between bore and fire and mechanised methods of advance. In the former, the cycle of work was to drill the holes in the face for the shots to be placed, followed by stemming and firing. In the smaller drivages in South Wales, more often than not after firing, the layflat ventilation bagging was either damaged or blown down and sometimes both. If blown down, it was a matter of not infrequent occurrence that some part, at least of the bagging would have been buried by the muck which had been dislodged when the shots were fired, the consequence was that ventilation became temporarily obstructed and the bagging was damaged.

The evidence of Mr Jessop, who opined that such was a physical impossibility, must be rejected (21:131:2). This type of situation exemplifies the benefit that a respirator could have provided. No real case was advanced why a respirator should not have been worn during the period of maximum dustiness, which was bound to exist until ventilation was restored, which was itself not an operation of the physically most demanding. If a significant number of shots had been fired, they were almost always subject to a delay settings so that there was sequential detonation. Thus there was the opportunity for the earliest shots to have brought the bagging down and for the effect of the later shots to have buried it. This would inevitably have led to the quandary (“damned if you do and damned if you do not”) whether to move the bagging back from the face before firing the shots, which was impermissible under the Regulations, or for some one or more men to re-enter the face of the heading as soon as it was physically possible in order to free the end of the bagging and restore ventilation. While in the heading at such times, peak concentrations of dust, as well as fumes, would have existed. However, once the bagging had been freed from the muck, ventilation should have been quickly restored and the dust cloud would be driven back and away from the face. Although for a limited period a man or men would have been exposed to peak concentrations of dust, there was no evidence to show what would have been the quantitative effect of that exposure of limited character as compared with the exposure during the remainder of the shift. Firing would take place on a number of occasions per shift, but was only carried out when the deputy was present who alone had the authority to perform that operation. There was some good evidence that, particularly in South Wales, the deputy would permit the Third Party’s men to return to the heading before the dust cloud had cleared, this would have enabled an early resumption of work in clearing the muck. There would be shared responsibility for this, but the preponderance of fault would lie with the Third Party, as employer.

Operations in headings were subject to the direct control of the Third Party, through their chargeman or foreman, subject always to the overriding obligation of the deputy to ensure the safety of men in his district, whether they were employed by contractors or British Coal. The most obvious difference between the role of the chargeman and the deputy is that the former would always be present at the site of the work, whereas the latter may have had duties to perform elsewhere in his district so that he would not necessarily be present at the face of the heading throughout his shift. On the other hand, the deputy had a power which he could exercise which, if he considered that an unsafe practice was being followed, enabled him to cut off power to all machines in the heading and stop all of them if he was not satisfied with safety precautions. I entertain no doubt that there will have been many occasions when the chargeman did not insist on time consuming dust suppression techniques with a view to progressing the work, in the hope that he would either not be observed, or interrupted, by the deputy’s exercise of authority to stop the work. The evidence satisfies me, also, that not all deputies took their safety duties equally seriously. There were many occasions when work continued in the absence of suitable precautions with the deputy either unable or unwilling to exercise his authority. In this type of situation, again there would be a shared responsibility, albeit not in equal proportions, for whatever the shortcomings may have been.

The evidence further satisfies me that on a regular, and not occasional, basis (see paragraph 1 of V1) the Third Party exposed its workforce to excessive quantities of respirable dust, such that there should be findings of negligence made against them. To the like extent the Defendants would also be liable. So much must follow from the over used excuse, that they followed the practices of British Coal, which had been the subject of criticism in Griffiths; see discussion under Culture, above. There was no evidence that the Third Party gave independent thought to what, as reasonable employers, they should have done to protect their workforce. If it were to be the case, as was accepted by the Third Party management, that after RDR came into force, they did no better than to attempt not to exceed “permitted amounts”, then by that admission, they failed to take reasonable steps to protect their workforce. In closing submissions, it was said that the contracts required no more of the Third Party than that. However, I am satisfied that was not the true position under the contracts; see above.

All too frequently, ventilation fell too far behind, baggings, where supplied by the defendants in a defective condition, as sometimes they were, were either erected in that condition, rather than returned to the Defendants, or not repaired by the Third Party before being put into use. Ventilation ducts were not erected in the most efficacious position. On occasions, jigger picks with blunt pick points were used and not quickly replaced. The evidence also satisfies me that there were frequent occasions when there were difficulties in obtaining supplies of sharp picks for the road heading machines. But this, I do not find was commonplace for obvious reasons, as Mr Kulcsar observed, “that was donkey work”. Loading out whether by hand or by Eimco was by its nature a dusty activity. Much more could have been done to ensure adequate wetting of the muck pile and by the application and maintenance of sprays to the Eimco bucket, after these became available in 1975. No reason was offered why water should not have been applied to these machines before the advent of RDR. The application of water to muck piles or Eimco machines were, no doubt, activities which were time consuming and their adoption could also lead to working conditions deteriorating due to the presence of uncomfortable quantities of water and the additional weight that water would add to the muck. A constant source of dust creation, which could readily have been prevented was the failure of the Third Party to ensure that when muck was tipped from the Eimco bucket onto the tail end of the outbye conveyor the bucket was first lowered as close as it reasonably could to the conveyor, or permitting the free fall of muck when hand filling was taking place. Overloading the conveyor, by tipping too fast could lead to spillage and the unnecessary release of dust into the atmosphere and, I am satisfied, became another frequent and potent source of dust creation. Other examples of dust generating activities, which should have been subject to suppressive measures, were the use of jigger picks without water sprays, drilling without any suppressive measures including the use of unsuitable drills (Turmags), which had no capability to receive suppressive equipment. There were also occasions when the contract specified that a heading should be machine cut, whereas bore and fire would have produced less dust and been a more efficient method. Contractors could, as on occasions they did, insist on a change of specification as to the method of drivage. The negligence did not consist merely of a failure to require a change of method from driving the heading, but in continuing with an unsuitable method without taking extra precautions to protect the workforce. There were also many occasions when road headers were used with either broken picks or defective water provision, or both. Some machines were provided with interlocks, which prevented their use in the absence of water. These, I find, were in the minority and only came into use within a few years of the end of the period of interest. This was particularly the case when driving through hard rock. But for this, only the defendants would have had a responsibility.

For the reasons which were expressed in Griffiths, there is no prospect that the Court could arrive at a scientifically based division between the effects of the sometimes differing, sometimes similar, acts and omissions which gave the individual claimant a cause of action against both parties. It is, however, necessary to indicate that, although in large measure, the acts and omissions of British Coal and the Third Party will have been joint, this is not the whole picture. A number of the claimants, in addition to the period of training which all underwent with British Coal, also worked for that organisation for substantial periods. Respiratory injury during those periods is the sole responsibility of British Coal, as they accepted. By way of contrast, however, while employed by the Third Party in respect of operations which were performed under the contracts made between them, the liability of British Coal in this situation will not just have been joint, albeit the acts and omissions will have overlapped, because, as has been seen, the deputy had the personal statutory duty to ensure that the Third Party carried out their operations so as not to damage their workers health. There is a further category of case in which there would be an additional basis of liability attaching solely to the Defendants, but not to the Third Party. This is exemplified by the extent to which intake contamination was one of the most frequently recorded causes of headings going into stage 1 sanctions; see chart at page 116. It is probable that water supply (cause 9 on the chart) was also a, but less frequent, cause of sanctions being incurred. In many instances, amounting almost to routine, I have been satisfied that a major cause of poor dust conditions in headings was inadequate house-keeping by the Third Party – an elementary, but time consuming, precaution.

It will be recalled that a major part of the Third Party defence to these claims was the belief, wrongly held as I have found, that if Contractors conformed to British Coal practices that would have satisfied their obligations towards the Claimants. That was a belief which British Coal did nothing to dispel. Indeed, there was, in material respects, encouragement held out to the Third Party that such belief was justified. Notably was this true in the respect that British Coal did not itself work to the minimisation of dust but to the illusory concept of “approved limits” or “permitted amounts”; see above. Furthermore, and to the extent that the Third Party were in breach of duty towards their workmen and failed to comply with the terms of the contracts, as previously discussed, the deputies were to the like extent in breach of their statutory and common law duty towards the Third Party workmen. As against these considerations, are the terms of those same contracts which were intended to protect British Coal from the consequences of the faults of the Third Party which caused British Coal to suffer financial loss and damage by the payment of compensation to their workforce under the CHA. The force of that consideration is somewhat mitigated, however, by the reference in the contracts to the anachronistic dust suppression document F4040 and practice of working so as “not to exceed permitted amounts”. The obligation of the Third Party to carry out the works in accordance with the contract, including the provision of effective supervision, the stipulation that any breach of statutory duty on the part of British Coal caused by any act or omission on the part of the Contractors are all matters which have to be taken into account when deciding how liability should in the end be apportioned whether under the Act of 1978 or under the provisions contained in the contracts.

If it is accepted that in terms of negligence or breach of statutory duty Contractors’ operations in headings were, in the main, neither better nor worse than those of British Coal there is a superficial case for an initial equal division of responsibility between them. But this is only the start of the exercise, since such an approach would merely reflect one element of what the Court is required to evaluate when making an apportionment between two, or more tortfeasors. In Brown v. Thompson [1968] 1 WLR 1003 at 1008, Winn LJ said:

When it is necessary for a court to ascribe liability in proportions to more than one person, it is well established that regard must be had not only to causative potency of the acts or omissions of each of the parties, but to their relative blameworthiness. In The Miraflores and The Abadesa [1967] 1 AC 826, Lord Pearce said:

‘The investigation is concerned with ‘fault’ which includes blameworthiness as well as causation. And no true apportionment can be reached unless both of those factors are borne in mind.’

It is worthy of note, I think, that that being a case where three ships had been involved in a collision, Lord Pearce said that what was essential was to compare the fault of each with the fault of the other two; the emphasis is upon fault not solely with the causation of damage.

Blameworthiness has, therefore, also to be brought into account. A factor which must be given due weight is that it is the primary duty of an employer is to take reasonable steps to protect his employees from the risk of injury of which he knew or ought to have known. On the findings which I have already made, in respect of the protection of their workforce from the inhalation of excess dust, the Third Party took little or no positive interest but instead relied on the assumption that if British Coal, or HMI Mines and Quarries, did not draw attention to any shortcomings on their part, no more could reasonably be required of them. While it is true that in the aftermath of the Health and Safety at Work Act 1974, there was some evidence that Contractors devised health and safety policies, at least as paper exercises, there was little evidence that any of these policies filtered down to the headings or that, if they did, serious and constructive thought was given to the problem of how to limit with the inhalation of excessive dust by their workforce. The long term failures by Contractors to consider independently the health of their workforce was as regrettable as were the manifold failings on the part of British Coal expressed in Griffiths. Failings on the part of Contractors in this respect are exemplified in the documents of Cementation D5/13 pp98, 99, /14 pp 100, 101, /15 p104.

Insofar as British Coal was concerned, they set themselves up not merely as model employers, but also as world leaders in dust suppression techniques; see Foreword to MRDE Dust Control Exhibition, June 1974: D2/16

Of the major health hazards that used to be associated with coalmining, only one remains – pneumoconiosis.

Great progress has been made and British research techniques and practices are recognised as the most advanced in the world.

By “British” in this context was meant British Coal. In the light of the lengthy investigation in Griffiths, their shortcomings in regard to dust were laid bare and have led directly to the present litigation. In fairness, the Defendants have not sought, in these proceedings or elsewhere, to diminish in any way the respects in which they were adjudicated to have failed their own workforce. However much the Defendants in the current litigation have adopted the attitude of acknowledged sinner, a significant degree of fault on their part remains.

This topic follows naturally from the discussion in the previous section. It is one which was the subject of lengthy debate during the hearing although, by the end, the main areas of disagreement had been eliminated.

It has already been noticed that during their work in headings, claimants will have been exposed to excess dust as the result of fault or negligence on the part of the Third Party. To the full extent of those faults British Coal, for the reasons discussed, was also vicariously, as well as originally, liable. The principal matters for which British Coal had and continue to have an original liability may be identified as: intake contamination; ventilation quantities reaching the face of the heading due to inadequate main or auxiliary ventilation; and ventilation due to the type, that is the specification and use of forcing, exhaust or overlap in circumstances which may have been inappropriate or less than optimal.

Thus, any individual claimant during his employment by the Third Party will have been exposed to tortious dust as the result of the acts and omissions both of the Defendants and the Third Party. While British Coal will have been liable in respect of the whole of the respiratory damage caused to him, the Third Party will only have been legally responsible for part. In contrast, the Defendants liability was both original in the respects just identified, as well as vicariously liable through the deputies for the deficiencies on the part of the Third Party in regard to the manner in which they conducted their operations. Does it follow, however, that they are both joint tortfeasors in respect of all the damage suffered by an individual claimant and that both will have contributed to “the same damage” for the purposes of section 1(1) of the Act of 1978? It will not have escaped notice that the Defendants have paid compensation under the terms of the CHA to all the Claimants in respect of the total respiratory damage which each has suffered, subject to apportionment for smoking and tortious, as opposed to “innocent”, dust. In my judgment, they were undeniably correct to have done so because of (a) their original and (b) their vicarious or joint liability. As to (a) this will have included the period during which the individual claimant was employed by British Coal, as well as during the period of Contractor employment owing to their breach of duty as owner and manager of the mine arising from matters over which the Contractors had no direct control and (b) liability for shortcomings on the part of the deputy in terms of supervision, breaches of the Managers and Officials Regulations and, particularly in South Wales, inadequate control of the shotfiring processes in a number of separate respects.

The parties attempted to put some figures before the Court, which would have enabled an objectively justified numerical apportionment between the parties to be made. The chart at paragraph 191 (above), was an early attempt to make some progress in this field. That it makes a start on this path cannot be gainsaid. But it went no further. The reasons why no better progress was made, is attributable to the uncertain nature of the available core material. It has to be remembered that the raw figures from which the chart was derived were non-specific on the question whether it related to a British Coal or Third Party heading, the cause could sometimes, but not always be attributed to the operator of the heading, sometimes the cause was not due to any identifiable fault on the part of either and the documents underlying the Barnsley Area study, from which the chart had been produced were themselves ambiguous. Lastly, there was frequently more than one reason why a heading might go into sanction. In such a case faults might be shared in unequal proportions for a number of causes. Furthermore, the only years for which any figures were available were from 1975 onwards. The earlier period was entirely non-specific. The chart at paragraph 192 (above) is intended to make good some of the imperfections of the earlier chart.

The Defendants realistically accepted that there was no basis upon which they would have any right to contribution in respect of liability incurred during the period when they had employed an individual claimant.

One of the problems which presents itself, is how fairly to apportion the fact that over period of his employment, an individual claimant’s dust exposure will have varied not only from year to year, month by month but almost hourly day by day. This variability of exposure, has therefore to be reflected over a longer time scale than days or months. It is not necessarily the case that a man’s exposure to tortious dust will have been higher during the early years because of the change from bore and fire, with its cyclical production of dust, to mechanised headings with the more consistent production of dust. Experience of dust on coal faces suggested that, in the period after the introduction of shearing machines to the coal face, and before pick face flushing was introduced, dust conditions had deteriorated as compared with conditions on faces worked in the traditional manner, whether as hand got or the use of jigger (windy) picks, as the principal method of coal extraction. Apportionment, if it is to be a fair process, must reflect not only the differing periods of exposure as between British Coal and the Third Party, but ought also to reflect the different tortious contributions during periods of underground employment from both British Coal and the Third Party, as well as over the longer time scale.

In the course of the evidence and in submissions three possible methods were canvassed for this exercise which mainly stemmed from Mr Mitchell’s supplementary report D13, albeit that he had touched on the subject in an entirely general way at paragraph 1.15 of D1. These methods will be discussed, hereafter. But it is necessary first to dispose of a fourth possible, but entirely theoretical, method of apportionment was suggested during cross-examination of Mr Mitchell. This had no evidential provenance, apart from the qualified admissions which Mr Mitchell felt constrained make in regard to it. It was a method that was based on the theoretical workings of the Third Party legal team. There was nothing improper about this exercise, but it tended to lose cogency for two reasons. First, it was not based on expert evidence and was, as noted, merely theoretical. Secondly, founded as it was on the PXR prevalence figures, which although based on the periodic results from that survey, for the reasons developed below, could not properly be approximated to the position of the individual Claimants in these proceedings. The method was also insensitive to variations in actual exposure when, as happened from time to time, conditions sharply deteriorated. In addition, it is apparent that the falling prevalence figures, which this theory incorporated, are at odds with what is known to have been happening in actual conditions underground. See later, on this, extracts from the report of Mr Stevenson.

In the years after the introduction of RDR, there was a steady contraction in the mining industry, which was accelerated in the aftermath of the year-long strike in 1984. It was following this period that a scheme for early redundancy was introduced. The consequence was that the prevalence figures for the periods, both before RDR and after, were based on two colliery populations which were significantly different from one another. It can readily be seen that one colliery population which is older than another will inevitably show a higher prevalence rate than a younger one. Moreover, in the period up to and after 1985 there was an increasing use made of dust masks which will have reduced the amount of respirable dust both tortious as well as innocent which the men will have inhaled as compared with the earlier period with the older workers. There is another factor which militates against the use of a method based on the PXR, which is that there was an increasing mobility of labour between collieries in the later years, this being a consequence of colliery closures and departure of the older workforce. It will also be appreciated that prevalence figures are a retrospective, in that they represent the results of exposure over the theoretical working life and are not representative of exposure to current, or even recent, dust conditions. Inevitably, their use would introduce a downwards bias into any calculation based upon this data.

The suggested method was set out and applied to the individual claimants in a document, which is to be found in V3. The essentials of this method used the concept of “dust insult units”, which were a creature introduced for the purposes of assessment of an individual’s exposure to dust and his smoking habit in order to enable the calculation of his compensation under the CHA. Dr Ford explained in his report [D4/1] what was the thinking which had led to this concept:

2.0

The methodology of the Dust Apportionment Calculator, how it assesses an individual’s dust exposure and apportions that exposure to reflect the findings of the lead action.

2.1

The purpose of the Dust Apportionment Calculator is to give an estimate of the recoverable proportion of quantum. It does this by a) calculating the dust exposure of an individual over his working life, b) calculating the exposure to respiratory damage from smoking comparing it with the damage due to dust, and c) estimating the proportion of damage due to dust that can be considered tortious and for which there is liability.

Dust Exposure Estimation and Respiratory Damage Apportionment

2.2

In the Dust Apportionment Calculator, the average prevalence of Category 1+ pneumoconiosis at a mine is taken as a measure of the exposure of an average individual to dust. As (Griffiths) showed, it is impracticable to attempt to establish dust exposure of individuals from actual measurements of dust concentration. Pneumoconiosis Field Research (PFR) had carried out research from 1954 to establish the relationship between dust exposure and the prevalence of pneumoconiosis among coalface workers. Their studies had established a relationship between dust exposure over a working life and the probability of contracting Category 1+ pneumoconiosis; exposure to a dust concentration of 6 mg/m³ equating to a risk of about 25% for contracting Category 1+ pneumoconiosis over a 35 year working life … . This relationship is used as the basis for estimating dust exposure of an average worker at a mine. Prevalence data is available from the results of the X-ray surveys taken at 4 or 5 year intervals at all (British Coal) mines by the Pneumoconiosis X-ray unit (PXR) …

2.3

…

2.4

Average Category 1+ prevalence at a mine is used to calculate the exposure per year of the average worker in terms of Dust Insult Units (DIUs): although this is actually the average exposure over the past 20 to 25 years and not the exposure for the actual year. A (DIU) is defined as exposure to High dust concentration, ie 6 mg/m³, during working shift over a period of one year. This is taken as equivalent, in terms of respiratory damage to a Smoking Insult Unit, which is defined as 1 year of average smoking; in (Griffiths) High dust concentration was established as being equivalent to average smoking (15-25 cigarettes/day).

2.5

The basic equation for establishing the Dust Exposure/year for an average man is given below. A number of simplifying assumptions are made:-

i)

High dust concentration (which equates to Average smoking) is 6 mg/m³ and this is equated to a probability of 25% Cat 1+ pneumoconiosis prevalence over a 35 year working life.

ii)

The relationship between prevalence and exposure is linear.

iii)

The average prevalence at a mine is related to an average exposure period of 25 years.

The report then deals with matters not germane to the present discussion. It continues:

2.20

the methodology behind the estimation of tortious dust values used in the Dust Apportionment Calculator is now described. In the findings in (Griffiths), the Judge based his estimates of tortious dust on expert evidence and information in documents from the relevant collieries, Areas and National reports. Obviously estimation of tortious levels, for individual working sites or mines was impracticable for a large number of claimants. A more generalised approach was developed which gave results consistent with the findings of (Griffiths), but also extended their applicability to the many coalfields and employment fields not covered.

2.21

Mines within each (British Coal) Area tended to use similar dust suppression systems and methods of applying them, so estimates of tortious dust were made on an Area basis. Pneumoconiosis prevalence statistics were available, for each Area from 1959/63, together with another measure known as the Progression Index, … considered to be a measure of the relative effectiveness of dust control in (those) Areas. These Progression Indices were used to establish the relative ranking of tortious dust values for the Areas from the periods 1959/63 to 1978/81, when improvements in dust control brought the Indices to levels (which) were too low for valid comparison.

2.22

…

2.23

…

2.24

The methodology was quite complex and should not be considered an ‘exact science’, but the resultant table of values was generally accepted as a reasonable compromise (which) was consistent with the findings and the available evidence. The table of tortious values was extended to cover periods 1985/89 and 1990/94, following a review of the dust control situation. The values chosen were a few percentage points lower than those for 1975/85.

The following points should be noted. First, the table referred to is that in Schedule 11 of the current CHA. Secondly, as the extract itself observes, there are many assumptions and a lack of hard statistical material to underpin much of the apportionment contained within the table. Thirdly, the table itself makes some allowance for the reduction of dust concentrations in the later years in as reliable a way as could have been devised and which was as true to the judgment in Griffiths as it could have been made. Fourthly, the table was concerned with apportionment which included the effects of smoking. Since that is a quantity which has already been taken into account in calculating the compensation awarded to the Lead Claimants, there is an illogicality in taking it into account a second time. The unspoken premise to the validity of the suggestion made to Dr Ford in cross-examination was that the later figures to be derived from the PXR were themselves reliable; but the evidence demonstrated that this was not so. Thus, the exercise was, and must remain, a theoretical one, which could only have had validity if its premise had itself rested on a sure foundation. I therefore reject that method. Apart from all other considerations, the adoption of the suggested method of apportionment would have introduced into the resulting calculation a degree of accuracy which the reliability of the underlying figures could not have justified. In a sentence, the results would have given a spurious appearance of scientific accuracy.

A word should be said about the evidence of Dr Ford. He is a witness who is highly qualified and who has carried out research programmes for British Coal, which have been of great value in helping to determine and shape policy in the field of dust control. It has to be said, however, that his methods of preparation for giving evidence are, for a scientist, unconventional, to say the least It is unnecessary to rehearse the detail of his embarrassment in the witness box due to his lack of adequate, and timely, thought about the content of his oral evidence. This tendency to disorganisation can be detected in the extracts from his report quoted above. These eccentricities must be allowed for, because I am satisfied that they are in the nature of the man, but, provided they are recognised for what they are, need not detract from the overall value of his evidence.

In D13, Mr Mitchell had put forward his three preferred and possible methods for apportionment between the parties. He proceeded on the assumption, now justified, that there would be a finding that both parties would be found liable in a generic sense to the claimants. How far this will hold in the case of all Claimants, awaits later decision. The methods put forward for the Court’s consideration were:

I confirm that my likely rejection of it stands. This is for the reason that during any period of underground work it is certain that different, as well as differing, contributions to tortious dust will have been made by British Coal and the Third Party. On the other hand, time weighting for the purpose of apportionment between British Coal and Contractor periods of employment has obvious merit in its simplicity. It should also be made responsive to the fact that over time, the level of tortiousness will have varied. As nothing in this field is or can be exact, such a method is, in my judgment, fair in a rough and ready way. Mr Mitchell had little difficulty in discarding method 3 as a fair means of proceeding. This was because the concept of dust insult units was concerned with allocation of respiratory disability between the effects of mine dust and tobacco smoking and not just the assessment of tortious dust in absolute terms. Although there was initial challenge to the methodolgy which had led to the creation of the table in the Schedule 11 (now 12) of the CHA, after examination it was not clear that any further challenge was made as to its validity whether by means of calling contradictory evidence or in final submissions made by the Third Party. In his report (see E1.¶14.24). Mr Stevenson interestingly expressed concerns that:

small but significant number of miners (were) being diagnosed with pneumoconiosis in recent years. In the year 2000 two cases of PMF were reported together with a number of other lower categories. HMI investigation which I personally directed concluded that the workmen involved had a history of working extended hours and in most cases at least one 4 yearly medical examination had been missed. There was a disproportionate number of contractors employees among working miners being diagnosed with pneumoconiosis.

In the judgment in Griffiths I wrote that:

The consequence of this analysis is that the question of apportionment has now to be addressed. Just as in the cases of Thompson and Knox there are here many imponderables which defy precise attribution of effect to one cause or another. These variables can be listed as follows:

1.

Non tortious exposure )

2.

Tortious exposure ) How much and

3.

Smoking ) for what

4.

Exposure prior to expiry of Limitation ) period?

5.

How should the marginal impact on tortious )

dust on lung function be reflected in the award )

of damages? This is the eggshell skull factor. )

During the hearing of evidence and submissions, attempts were made to put some numerical values to these factors. But in addition to the variations which are inherent in these exposure factors there are further variables which will influence the result in the case of the individual. These too can be listed:

When “apportionment” is used in the context of the present litigation, it must, of course, not only embrace the concept of “apportionment” discussed above, but must also include apportionment between periods and exposures due to tort committed by British Coal alone and tort committed by both British Coal and the Third Party concurrently. As already noted, in the present litigation, unlike the position in Griffiths, there has been little evidence of an objective or quantitative nature about the absolute levels of dust in headings or other places of work performed by contractors in which it is known that any Lead Claimant ever worked. The Court is left with the generalities already mentioned, which made it highly improbable that Contractors so carried out their operations that dust was minimised. There has also to be taken into account the inferences which can properly be drawn from the statistical tables which appear at paragraphs 191 and 192 (above). There is abundant evidence from which it can be inferred that on a consistent, rather than occasional, basis the Third Party failed to take reasonable steps to protect its workforce from excessive levels of dust. These considerations lead me to prefer a method which reflects the varying levels in the proportion of the total exposure which is tortuous, over time. Such figures would reflect actual variable dust conditions.

I judge that the fairest basis upon which to apportion between the Defendants and Third Party is to make use of the tortious levels for different years, which are already available from the dust calculator print out prepared by IRISC, which will be found in A core. The levels of assumed tortiousness, which are incorporated into this document, are derived from values which are written into Schedule 11 of the CHA. These levels vary according to seven different 5 year periods (approximately). Table 1 of Mr Mitchell’s report D13 provides a sample calculation employing this method in the case of Mr Ellis. There is, however, a weakness incorporated into this method, in that it assumes that the only tortious contribution to a Claimant’s cumulative dust total comes from either the Defendants or the Third Party. We know, from the discussion which has already taken place, that, during the period of Third Party employment, there has been a continuing contribution to that cumulative dust by the Defendants. Some allowance has to be built into the method which will reflect this factor.

Before arriving at figures which will take this factor properly into account, it is first necessary to allocate responsibility for levels of tortiousness within the headings. Given the figures for reasons for headings going into sanction (table paragraph [191/2] above) and the figures which can be derived from Dr Ford’s later paper V1/4 and the various factors which have been discussed in this Chapter under Factors affecting allocation of culpability, my judgment is that, on a day to day basis, it is just and equitable that British Coal should bear three fifths of the responsibility for matters such as intake contamination, ventilation quantities (including design) and water supplies. For operational conditions in the headings, the Contractors should bear the greatest share of the responsibility since they were the employer and they had by their contracts accepted responsibility as between themselves and British Coal, whatever they may have thought in practice. Nevertheless British Coal did also have an active part to play in supervising Contractors’ operations in the headings which, on the evidence, they failed properly to exercise. In my judgment a just and equitable division of these responsibilities is 75 per cent on the Contractors’ part with the balance to be allocated to British Coal. In the years of employment by the Third Party, then, the assessment of the Contractors’ responsibility for tortious dust can be expressed as 30 per cent of the annual tortious dust figure in the IRISC calculation sheets. This apportionment applies irrespective of the Respirator factor.

This distribution of the compensation awarded to the individual Claimant is intended as a generic finding. If, when the individual cases come to be considered there is evidence, which would justify a departure from this finding, that will be made clear. It will also be the case, that although there is to be no distinction drawn between individual constituent members of the Third Party, where the evidence enables a just distinction to be drawn in relation to conditions in individual mines or as between South Wales and other mining areas, this too will be demonstrated and will be taken into account. A further point to note is that since each Lead Claimant’s award has already been assessed by making use of the table of tortious values, job factors as well as the respirator factor, it would introduce an element of duplication if such were given any further weight.

It will be for the parties to calculate the monetary amounts of contribution in accordance with the guidance provided by this section of the judgment. In the absence of agreement, they will of course be able to come back to court for a ruling.

This was a topic exhaustively canvassed in evidence and the subject of discussion in the original judgment. It is convenient to start the same, or similar discourse at P p77. Thus:

Then in a draft memorandum on Dust Respirators ‘Circumstances in which they may be used’ was circulated which, while expressing the view that:

A wide general use of dust respirators without justification was to be deprecated, it was not practicable to put a complete closure on their use. There are circumstances where respirators are at least helpful, if not necessary.

In 1971, Dr Skinner of the NCB prepared another note “The Application of Dust Respirators in the British Coal Industry”: see P p78.

The narrative part of the note is important as source material for what was happening in this context, the ‘Summing-Up’ is a valuable exposition of how British Coal had visited and were proposing to re-visit the whole issue:

Summing-Up

1.

The dust respirator should be regarded as the last line of defence in the whole system of anti-dust measures.

2.

It is probable, however, that the role of the dust respirator has become more, rather than less important, with the increasing adoption of power-loading, which may make it more difficult to maintain approved conditions on a face at all times.

3.

There is little room for doubt that, mainly through the work of the Board’s Medical Service, the respirators now available are of greatly improved effectiveness, and that the major drawback which had been responsible for their unpopularity in the past, viz., the liability to rapid build up of resistance, has been largely overcome.

4.

During the first decade after nationalisation, the available respirators were far from being completely satisfactory, and wearer discomfort was probably the main factor in causing then to be little used.

5.

It is, of course, difficult at this distance in time to say positively whether, in specific cases, everything possible was done to encourage the judicious use of respirators.

Given what had been the open opposition of British Coal to the wearing of masks, … there was an undisturbed culture among miners which looked with disfavour on the wearing of masks, even if conditions would have made such a course sensible by removing the discomfort and health risk from exposure to high concentrations of dust. A memorandum prepared by the IOM … dated 17 March 1972 fully addresses the issues raised. … It is … worth quoting from the final paragraph:

‘A greater use of dust respirators could probably do more to eliminate dust disease among coal miners than any other course that is technically feasible at the present time – and at a fraction of the cost. Draft Proposals for the Provision and Servicing of Respirators, which represent a small step towards their greater use were agreed in principle by the Respirator Approval Sub-Committee … for submission to the Director General of Mining with a view to being issued as a Mining Department Instruction in due course.’

The point which now arises for decision is how far British Coal’s attitude towards respirators, … , should be reflected in an adjudication of liability against them. Unless or until a … (suitable respirator) became available there was probably little that British Coal could have done to lessen the exposure of men to dust by means of education or persuasion of the advantages of using a respirator. The counter argument that seeking to persuade men to wear an unsuitable respirator would have delayed the widespread adoption of the respirator as a suitable protective device has undoubted logical attraction. As against this, however, is the fact that a respirator could have been effective not just against tortious dust but against the whole range of dust exposure which men encountered in the many activities which they were required to perform underground.

Having referred to the cases of McWilliams v. Sir William Arrol and Qualcast v. Haynes, the judgment continued:

I find that it was not only a proposition of good sense that British Coal should have provided and urged the men to wear respirators but also a proposition of law, because it was not merely their common law duty, but since 1^st June 1957 it had been their statutory duty to have done so as something which was practicable to minimise or at least reduce exposure of their work force to the long term effects of dust. In deciding how to apply these considerations in a practical way require that allowance will have to be made for the fact that overmen in particular, and deputies to a lesser extent will have had to remove their respirators for appreciable periods when giving instructions to miners for whom they were responsible as well as the fact that working conditions for all may well not have been conducive to the wearing of respirators for much, if not most of their working time underground. For the face worker, other than machine driver, who had performed physically arduous work, there is difficulty in proving that he would have used a respirator even if such had been supplied and he had been suitably instructed.

The judgment then considered how those principles should be applied in practice.

It is against the above background that the evidence and submissions in the present case fall to be considered. The case for the Defendants was straightforward. Mr Stevenson, the Third Party expert engineer accepted that in general, Contractors did not provide respirators for the use of its workforce. The position only changed at a late stage in the history of the employment of Contractors by British Coal because of stipulations introduced into the contracts made with the Contractors. It was also accepted by Mr Stevenson [E/2¶18.5] that there was no requirement and little if any encouragement on the part of Contractors that their men should make use of respirators when these were provided by British Coal. The evidence which was given by Third Party management on this issue was to the like effect and also, but importantly, conceded that they did nothing to encourage their men to make use of the dust masks which were made available by British Coal.

There was an additional finding made against British Coal where at D p 83:

… suitable respirators, such that it would have been reasonable to expect a conscientious miner to have worn for a part of his shift would have been available by the mid 1960’s. For purposes connected with the later estimates of exposure I find that British Coal were in breach of duty in not making any or any great effort to instruct or persuade miners of the benefits of using respirators from 1965 onwards.

The escape route plotted for the Contractors on this issue was set out in the Third Party opening statement V1 p37 ¶107(f) where it was contended that they “had no capacity to act independently of the defendants in respect of … the provision, need and use of personal protective equipment”. Further, it was contended that “the defendants assumed the de facto responsibility to provide respiratory protective equipment … and never looked to the Third Party to do so”. This latter submission, although true insofar as the provision of such equipment was concerned, was of dubious legal status since it was not so much the provision of the equipment which mattered but efforts made to persuade the workforce to have made use of it which were of importance. This contention was not pursued in evidence and may, therefore, be sensibly be disregarded as a serious contribution to the debate on this topic. The Third Party also contended that unless or until they had reason to know that British Coal was failing in its duty, as found in the original judgment, there was no obligation on the Contractors to provide, encourage or urge their workforce to use respirators. It must be said that there is some element of apparent confusion about the Third Party’s position in relation to this issue both in opening and in their closing submissions. The reasons may not be far to seek as the following references to the evidence will make plain. Mr Keeble (31:38:23) said that his company (Cementation) left it to the individual whether or not they should wear dust masks, they gave no instruction and left it entirely to the decision of the individual. Yet, Mr Keeble accepted that it was best practice to ensure that such masks should be worn, particularly at times when dust conditions were bad. It was plain, however surprisingly, that Mr Keeble had not appreciated (without the benefit of the Griffiths’s judgment) that masks could reduce the dust when conditions were bad. He accepted that had he been aware of that he would have urged his men to make use of dust masks. Mr Homer, who had originally worked for ATC (supra) joined Cementation after the amalgamation of those two companies. He accepted that dust was potentially hazardous and took the, by now, familiar line that the company followed British Coal policy (24:101:17-21). In his statement, C723 ¶115 Mr Homer had said:

15.

In relation to dust masks, I believe these were available to everyone from both British Coal men and us as Coal Mining Contractors. It was a matter of personal preference as to whether the men wore them or not. There was no particular exaltation (sic) from us. There were notices up and at inductions I believe it was stressed they should be worn but in the end it was left to the men to decide. As far as I can recall, some of our men wore them, some didn’t. I can’t recall them being particularly being worn by British Coal men.

The low water mark came during the evidence of Mr Luthe (Thyssens) whose first experience with paper masks had been in the Ruhr in the 1950’s and he did not think that they had changed much in the years since then. His attitude, reminiscent of that of British Coal’s was expressed in the following passage in his evidence:

… it was it was a very hot place, and one would sweat quite a bit, and the dust and the sweat would actually gather around the periphery of this mask. And for days on end, I had a problem with my skin. In addition to that, I thought that often in – this was very heavy work because you actually had to drag pipes up a particular slope. … and the mask did that (indicating). It actually moved with the breath intake and I thought this system, if relied upon, would not be effective enough and I left it. That was my first experience. I will say that -- if not asked I say it nevertheless -- when I came, very few people ever wore dust masks and we -- I never sort of promoted them and I never hindered anybody to do that because I think it depends very much on your physical shape and your physical approach to these things. For instance, if your face is more likely to adjust to the mask as an attachment to your mouth, then obviously you are better off than if for instance it bites into your skin. Therefore, I, in my safety statement as you have read it, not incorporated dust masks because I think there are two reasons. One, I just gave a physiological reason, and the other reason is, if relied upon in sole application, it leads people to become careless and not to actually do the sort of more essential thing and that is damping down with water. (32:20:1)

He later confirmed this evidence in the course of his cross-examination (32:156:1). Mr Luthe was unaware of any research into the efficiency of dust masks as a form of respiratory protection. On the other hand, he was cognisant of the fact that “dust was harmful and needed to be kept to a minimum” C2p912/4. Problems of dust were not discussed either at Board level or in the course of tool box talks, when these were introduced in the late 1980’s. Mr Luthe was prepared to accept that, if his men were to be persuaded of the virtue of dust masks, some form of educational programme would have been necessary.

Mr Bradley (AMCO) took a similar line so far as his company was concerned. At 26:42:11, he was asked about dust masks:

Q. Would it be right that prior to then (early 1990’s) Amco never enforced or vigorously encouraged their use?

A. What I can say prior to that. That if we did not encourage the use, it was mainly because British Coal were not encouraging their use. This new culture of wearing dust masks whenever necessary, the improvement of safety culture, was a gradual thing. It was not a thing which came overnight.

The Third Party final position in relation to dust masks was one of agnosticism. They did not accept that the defendants had made a case that Contractors should be found guilty of negligence by reason of their failure to provide or exhort their men to make use of them, even if only at times of peak dust concentrations. If, however, the Defendants overcame that hurdle, they had then to prove, in any of the Lead Cases the date from which such a finding should be made against the Third Party. The main plank of the Third Party case on this issue appears to have been based on their lack of knowledge, there being no basis, it was said, for finding that they should have known as much as, let alone, more than British Coal. Essentially, this argument does not run. Not only did witness after witness, as briefly reviewed above, accept that he was aware of the dangers arising from dust, especially when it came from rock rather than coal, it was also the case that they had access to the relevant literature, whether or not they chose to put that knowledge into practice or not. The generic submissions made on behalf of the Third Party were as follows:

With reference to A. above, what is inescapable, in my judgment, is that the annual reports of HMI, which are summarised elsewhere, made it abundantly clear that over many years British Coal had failed to comply with its section 74 statutory duty. I have already found that no reasonable contractor should have been ignorant of that fact. No more in the field of dust masks than, in the provision of suitable preventive and suppressive measures in headings, could the Third Party have been justified in following the line, espoused in their concluding submissions on this issue, that they could rely on British Coal to have done what was reasonable, so far as dust creation and suppression were concerned. That was an attitude based on unjustifiable assumption, and no more. There was a total absence of evidence that any of the constituent members of the Third Party ever gave any thought to the question what, if anything, it should be doing to protect its workforce from the continuing failure of British Coal effectively to address the problem of the exposure of the workforce underground to dust which had not been ‘minimised’. The suggestion that it would have been putting an undue economic burden on the Contractors to do more by way of increasing the knowledge, which was readily available to them, and taking action in the light of the knowledge so acquired, is not made out. It is the absence of evidence to demonstrate that the Third Party ever considered there to have been a problem that justifies this generic finding of negligence. The evidence was that, so far from British Coal proving unreceptive or resistant to safety measures proposed by contractors, once the Third Party had taken the innovative step of appointing safety officers, which was a step which was only taken after 1974, mine management on a local level was shown to be receptive to what they were being informed. If it were necessary to find an explanation for this, it is there was an obvious community of interest in complying both with the letter and the spirit of RDR. There is no evidence that the Third Party ever made any approach to British Coal with a view to some form of protective or remedial action being taken in respect of the continuing exposure of the work force to dust which had not been minimised. As has been seen elsewhere, the reliance on British Coal, to set a standard which was sufficient for others to follow comes, nowhere near to fulfilment of the employers’ duty of care towards his workers. Had there been no material available to contractors, then the beginning of a case could have been made on their behalf. As has been found elsewhere, the Third Party ignored or misunderstood the provisions in their contracts with British Coal which were intended to ensure that the contractors’ own workforce was protected from excessive exposure to respirable dust. They ignored or misunderstood their statutory obligations and substituted an ill-founded belief that British Coal had fulfilled its own statutory obligation, which would avail the Third Party. The published evidence clearly showed otherwise.

As to B, the assumption built into the CHA in regard to respirators was that from 1985, British Coal did what a reasonable employer would have done in terms of supply and exhortation in regard to the wearing of dust masks. It would have been illogical, therefore, to have projected the conversion of innocent to tortious dust in accordance with the agreed formula, after that date. The position for the Contractors is entirely different. On the evidence, if they ever became proactive in this respect, it was not until about 1993. For the reasons given in the Griffiths judgment, I reject the argument that “no amount of encouragement would have persuaded a miner to have worn one”. The evidence in Griffiths was quite compelling P p83:

(T)here was ample evidence, … , which demonstrated that miners’ traditional reluctance to use respirators could be, and in certain pits had been, successfully overcome. The regional differences in respirator take-up make good this point. This finding is sufficient to dispose of the possible argument that British Coal should not be found to have been in breach of duty because it had not been shown that miners would not have worn respirators.

There is no distinction in principle, in this respect, between miners employed by British Coal or Contractors. in respect of the Third Party’s failure to provide respirators and urge their use. There were particular aspects of the relationship between the Defendants and their workforce which meant that it would have been inappropriate to have continued the respirator factor, by conversion of innocent to tortious dust, after the end of the strike, in 1985. The basis of this concession by the Claimants was that after that date, the parties were agreed that sufficient provision and exhortation had been made by the Defendants which would have made it unrealistic to have prolonged the period of liability under this allegation of fault. But this situation has no relevance so far as the Third Party is concerned. At no stage, before the last year or so of the existence of British Coal as an operating entity, did the Third Party by exhortation take reasonable steps to encourage the use of respirators by their workforce.

This argument has to be addressed. In the first place, it will be noted that it is inconsistent with the Third Party contention that it is not bound by the CHA, albeit the concession has the effect of reducing the amount of compensation which would otherwise have been paid by reducing the tortious element of dust, since otherwise “innocent dust” would be converted into tortious dust in accordance with the formula contained in the agreement. Secondly, and substantively, the “damage” in question is the injury and loss which the individual has actually suffered, rather than the damages which have been paid. So much is made plain by section 6(1) of the Act which provides that:

A person is liable in respect of any damage for the purposes of this Act if the person who suffered it … is entitled to recover compensation from him in respect of that damage (whatever the basis of his liability … ).

The sub-section draws a contrast between “compensation” and “damage”, the latter is only apt, in my judgment, to refer to the physical injury which has entitled the claimant to recover damages form the tortfeasor, whom he has sued. The question for decision is, then, whether the Defendants can properly claim contribution when the sum which they have paid out as compensation is less than that which they seek from their joint tortfeasor. Instinctively the answer to this question must be that such a person ought not to be able to recover in respect of a sum which he has not in fact paid out. Here section 2(1) comes to the aid of the proper construction of section 1(1). Where relevant, this sub-section provides that:

(I)n any proceedings for contribution under section 1 above the amount of the contribution shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question.

In the present case, the damage in respect of which the Defendants seek contribution is the quantified amount which they have paid, or will be required to pay, out under the CHA. The contribution to which they are entitled under the section is in respect of “the extent of that person’s responsibility for the damage in question”. It would be neither just nor equitable to require contribution which did not bear the appropriate proportion to the original party’s assessed (extent of) responsibility, but something greater than that. The Defendants’ submissions on this point were not correct and are rejected.

As to C, if the point is that the allegation made by the Defendants did not include the obligation to “provide” masks as well, then it is a technical point which is open to the Third Party to take. It fails on the facts, however, because, from the introduction of RDR, if not before, all collieries, in which contractors’ men were employed, made masks available to any man who passed through the lamp room on their way underground, as by law they were required to do. The case, which had been advanced through cross-examination of the Third Party management witnesses, and accepted by them, was that no attempt had been made to persuade any of their men to make use of the dust masks which had been made available to them in the lamp room. I am quite unable to accept that the Defendants have not made out a case that Contractors ought to have taken steps to instruct, urge or persuade their men to make use of the respiratory equipment which was available, or which the Contractors ought themselves to have provided from 1965 onwards. See also, the passage which follows in regard to the date from which this finding should apply.

As to D:

There remain two issues, first as to the date from which this failure on the part of the Third Party should lead to a finding of liability. Secondly, the position of the Third Party in the light of the provision in the CHA that the respirator factor would not be applied as against the claimants after 1985. It will be recalled that the effect of applying the respirator factor in any given case was to convert what would have been “innocent dust” into tortious dust because of the protection which wearing a dust mask would have given against all dust, both tortious and innocent, during such period as the mask was worn.

It is no doubt the case that a wholly suitable respirator was not available until about 1975, but this is not to say that dust masks of some efficiency were not available to the industry some twenty years or so before then. The point is that British Coal did not itself engage in the manufacture of respiratory protective equipment, it turned to well known manufacturers of respiratory protective equipment for its supplies. The documents in folder R, demonstrate that commercial manufacturers, as well as the British Standards Institution, were actively pursuing the design of a dust mask which would have been entirely suitable for mining work during the late 1950’s. It should be noted that Mr Stevenson draws attention to the availability of dust masks from the early 1960’s; see E1¶18.1. This comment is also consistent with the documents which are to be found in folder R. Mr Stevenson refers to the Martindale respirator, the documents in R suggest that another well known manufacturer (Siebe Gorman) also produced a respirator which was available during this early period. There is no evidence that the Third Party ever approached manufacturers, with a view to discovering what might have been available. In my judgment, there is no valid reason to select a date in respect of the Third Party’s failure to provide respirators and urge their use, other than that from which British Coal were found to be liable, in Griffiths, namely 1965. It is of note that the Third Party stance in opening with regard to “exhortation” was to say that:

We do not say that we acted any differently from the way the defendants did in respect of exhortation. That means we acknowledge that, where in any particular case the wearing of a respirator might be regarded as a relevant precaution that could have been taken, the same criticism might be made of the contractors as was made of the defendants in Griffiths, and may assist some claimants.

It is hard to construe this somewhat cautious, or ambiguous, statement as other than a guarded admission that a finding of liability was likely to be made on the basis upon which I have found that it does. The Third Party contended that the Defendants should also be found liable, as occupiers of their coal mines, for their failure to urge their visitors (contractors’ workmen) to wear respirators; 4:25:7-22. I was, and still am, unable to see what this submission could add to any that were otherwise made in respect of the provision and use of respirators.

In unmechanised headings, work probably bore a similarity to that in the old hand got faces. Filling out and the use of drills was both hot and dusty work which will have militated against the wearing of dust masks for much of the time. Apart from those aspects of the work, manual work in headings was probably less physically demanding than work on the coal face. In mechanised headings the work was done mainly by machine cutting and machine loading out. On the evidence, it was both sensible and practicable for dust masks to have been worn during those phases which would have been times of peak dust. This bears a similarity, in many respects, to the work in unmechanised or coal face work which consisted of large scale use of jigger picks and hand filling. There would also have been substantial periods when other manual work was being performed, as on the coal faces, which would have militated against the permanent wearing of dust masks by Third Party workers.

It does not follow from this generic finding against the Third Party, that the Defendants will necessarily succeed in proving that respirators, as a factor should be brought into account in every individual’s case when that comes to be considered. Some Lead Claimants did make use of respirators, from a date some time in the early 1970’s. If the Third Party had had a programme of instruction, or exhortation, there is at least a likelihood that, as with British Coal workers, the use of dust masks would have started earlier than in fact it did. As was done in the Griffiths’s cases, there will be an adjustment for respirator factor indicated in the discussion of the individual cases later in this judgment.

In relation to the allegation made in the Particulars of claim that the Third Party:

Failed to require its employees to use respiratory protective equipment during the dusty periods of working. [see A1 p17]

the submission was that, by implication, this allegation could not be diluted to mean “urge”, it meant precisely what it said. It was the Third Party case, that if there was to be any such requirement, this had to come from the colliery, either through the manager’s scheme (as was done at Stillingfleet) or as a rule of the mine. There could be no such requirement at common law, hence the Third Party could not be found liable on this basis. This may be accurate in a narrow sense. The case which was advanced in evidence, through the cross-examination of the Third Party management witnesses and accepted by them, was that no attempt had been made to persuade any of their employees to make use of the dust masks which were made available by the defendants in the lamp room in the covered accommodation. I am quite unable to accept that the defendants have not made out a case that the Contractors ought to have taken steps to instruct, urge or persuade their men to make use of respiratory equipment which was available, or which they ought to have provided themselves, from 1965 onwards and beyond the CHA cut-off date.

Since an understanding of the basic terminology of lung disease is necessary for the purpose of following the nature of this part of the dispute in this case, there is included here the passage from the original judgment referred to earlier. P112 to 114:

“Measurement of Lung Function

Spirometry is the means by which the ventilatory or bellows function of the lung is assessed. The technique requires maximal inhalation followed by forced maximal expiration. The volume exhaled after defined periods, and the flow rate at various percentages of lung volumes, can then be, measured. The measure (which) is most frequently referred to in this litigation is the volume of air forcibly exhaled in one second following a deep breath in (FEV₁). This measure is more reproducible than others, it is a simple quick procedure which does, however, require the full co-operation of the subject if its result is to be reliable. FEV₁ is a measure which shows some correlation with both disability and prognosis in chronic obstructive airways disease cases. Another measure is the total volume of air which can be exhaled during the forced expiration following a deep breath in, this is the forced vital capacity (FVC). The ratio FEV_1:FVC is termed the forced expiratory ratio and is used in some studies of lung function. Expressed as a percentage in fit young men the ratio is in the region 75 to 80 per cent, but declines slightly with age.

The total lung capacity (TLC) when the lungs are fully expanded is another measure … . The residual volume (RV) is the volume (of air) which remains in the lungs after full expiration has taken place.

…. During maximal exhalation from full lungs flow rises rapidly to a peak (PEF) and then progressively declines … (it) is a simple measure of the maximum rate at which air can be expelled from the lungs. In damaged lungs, it will be diminished. The values of obtained FEV₁ and PEF measurements are … effort dependant … . They may also vary naturally in an individual from day to day and may be influenced by temperature and atmospheric pressure. The efficiency of gas transfer (carbon dioxide out from, oxygen into, the blood stream) can be measured … . The uptake of inspired gas by both lungs (transfer factor), may also be referred to as the diffusing capacity (TLCO or DLCO), the value of which is largely determined by the volume of the lungs. Another index used to assess the efficacy of gas transfer, corrected for the available volume of the lung is known as the gas transfer co-efficient (KCO).

… Only rarely are lung function measurements carried out in a healthy population, so that it is unusual for a person’s lung capacity ever to be known before impairment has led the individual to seek medical attention. Predicted (assumed) values are therefore employed. The predicted value for an individual represents the mean value for a person of that age, sex and height. … It is important to note that a person’s lung function as measured by FEV₁ decreases naturally with age by about 30 mls per year.

The definition of chronic bronchitis has already been referred to in the Chapter on the CHA. Emphysema involves the abnormal permanent enlargement of the air-spaces distal to the terminal bronchioles and associated destruction of the walls of the airspace. The functional result of the disease is the destruction of the walls of the alveolus which is the gas/blood exchange area of the lungs through which oxygen is transmitted to the blood and carbon dioxide is given up by the blood into the lungs. The result of this condition is breathlessness in the affected individual. Asthma is characterised by variability of symptoms between normal, or near normal, lung function and severe limitation of airflow. It is diagnostic and characteristic of the condition that following inhalation of a broncho-dilator, there may be a significant improvement of airflow; see P p105-110.

When the individual cases come to be considered it will be noted that Dr Stenton, the RS who examined, reported and gave evidence when called by the Third Party was unable, without introducing his own qualification, to agree with any of the MAP diagnoses, made in respect of the Lead Claimants. In every case in which he reported, his diagnosis or prognosis diminished the extent of the injury or disability of the individual claimant, when compared with the MAP report. On occasion the qualification was slight, being a difference of opinion as to the percentage of respiratory disability. More commonly the disagreement was of a more fundamental character, as to the existence or absence of some relevant condition..

In approaching the resolution of this “old fashioned” medical dispute, it is relevant to have regard to the background and experience of the RS who carried out the MAPs. It is also relevant to note that each RS was trained specifically for the MAP exercise and, as the Guidance Notes made clear, will have been conscious that he was not reporting in the interests of one party to litigation. His was a unique role, impressed as he would have been that it was his decision, rather than that of a judge, which would determine the medical outcome of the case of the patient (claimant) upon whom he would be reporting. The RS was, nevertheless, expected to use his clinical experience and bring his ordinary clinical techniques into the performance of his duties in connection with the MAP. In approaching the matter, thus, I have not overlooked the fact that all expert and professional witnesses in unitary litigation have now expressly to have regard to their duty to the Court. It is also a factor, which should not be overlooked, that the time which is available to a RS engaged in the MAP is of necessity limited and he may be required to peruse many pages of more or less easily legible medical records. These will have been scanned onto a disc and made available to be read by him on screen.

As a generality, I was much impressed by the diligence with which the RSs approached and completed their task. There were of course, some documents which were missed; some were misread; some entries were overlooked. But when regarded as an exercise in performing a detailed and technical process involving many hundreds of cases, I am satisfied that the manner in which they performed their task stands up well, not only to the scrutiny to which it was subjected in the course of this litigation, but also, as judged by the results of the statistical quality control to which the performance of all the RSs who were engaged in the operation of the MAP was from time to time subjected.

It is to be regretted that the same observation cannot be made of the contribution in these proceedings made by Dr Stenton. Quite properly, from the point of view of the Third Party, it was important that there should be an examination of the individual performance of the respiratory specialists who had reported on the individual live Lead Claimants and, in the case of the deceased Claimants, the documents which were available for consideration, and whose examinations might eventually lead to an award of compensation. Again, as a generality, Dr Stenton’s approach was not as impartial as the Court has reason to expect. As a witness, he had a tendency to be didactic and to argue the case rather than to be content with reporting his findings and opinion. Some of his responses to cross-examination were lacking in credibility and came close to being overtly partial, notwithstanding his self-acknowledged duty to the Court. Moreover there were numerous instances of Dr Stenton being internally inconsistent in his approach to the evaluation of the evidence not only in the same case but also as between one case and another. A particular weakness of Dr Stenton’s approach to the individual cases was the manner in which he treated lung function test (LFT) results. It appeared to be common ground between all RSs, who commented upon them, other than Dr Stenton, that in addition to the actual numerical flow readings obtained in the testing process, there was also considerable value to be attached to the tracings of the flow volumes (“flow volume loops”). Dr Stenton could, or, would not accept that this was so. In turning his face away from consideration of the tracings, I am confident that Dr Stenton placed himself at an unnecessary disadvantage.

In addition to the specialists who performed the MAPs and Dr Stenton, the Court was assisted by Dr Moore-Gillon who, together with Dr Rudd and Mark Britton, formed the Medical Reference Panel (MRP) which had played a large part in the input to the medical principles embodied in the CHA and which had had assigned to it a general supervisory role in respect to its practical operation. Dr Moore-Gillon, who had not had the advantage of examining any of the live claimants, performed a valuable function, in effect, of auditing the MAPs as well as the reports which Dr Stenton had prepared in the case of all claimants. Some objection was raised to the admissibility of his acting as a ‘referee’ in this manner. It is an objection which I find to have been without merit.

The relevance of the medical evidence in the case was to enable the Court to determine whether, having regard to the information which was made available to the RS while carrying out the MAP, the MAP had been faithfully executed in any given case. As already noted, the challenge to the individual MAPs was to the validity of the results and opinions recorded on the MAP form in each case, which were later transferred to IRISC for the purposes of completion of the assessment process. With but one exception, as to which see in the individual claims, I have without hesitation preferred the MAP reports and the oral evidence given by the RSs to any produced or testified evidence by Dr Stenton. The exception is the case of Mr Broad, where Dr Jarad missed references to evidence of some asthmatic disability in the massive quantity of records which existed in his case. These were only more or less legible. The omission is understandable, but, as will be seen, must be considered a factor which vitiates, his opinion and finding, to some limited extent.

It is necessary to make good the criticism of Dr Stenton outlined above. This will be completed by reference to and discussion of the individual cases.

Benyo. Here, the main issue was whether or not the principal diagnoses of chronic bronchitis and COPD were correct. There was an associated question in relation to the estimate of the diminution in expectation of life. The challenge to the diagnosis of chronic bronchitis had its origins in Dr Stenton’s report; G pp4-16b. It should be noted that Dr Stenton did not make a diagnosis of chronic bronchitis despite obtaining a history for Mr Benyo that he:

Developed a productive cough which was associated with breathlessness ‘mainly when I was coming out of the pit I was coughing and coughing and it was speckled black. I had a shower and felt a bit breathless’

On the MAP form there are to be found references to the production of sputum which was not affected by “leaving the pits”. There is currently cough and sputum at night. In terms of breathlessness, Mr Benyo’s account was that he can walk 50-80 yards at a moderate pace before stopping, at most he can manage 200-300 yards. There is an absence of any entry in the notes which was suggestive of Mr Benyo being asthmatic. In a letter from the Department of Medicine, Barnsley Hospital of 27 November, 1987 [X Core p11] it was recorded that Mr Benyo had:

(Complained) of shortness of breath for 9 months duration, tightness in his chest of similar duration. He has been hypertensive since 1981. For the past 9 months he has been having progressive increase in shortness of breath and presently the patient becomes breathless after about 50 yards.

LFTs were carried out for the purposes of the MAP, it was common ground that these were “less than ideal”. This finding led to considerable debate about the true interpretation of those results. Later, Dr Stenton obtained his own LFTs. It is a fact that the numerical and trace reports obtained on behalf of Dr Stenton supported Dr Lee’s tentative diagnosis of COPD. Both sets of LFTs demonstrated an element of reversibility after bronchodilator, a finding which provided some support for the diagnosis of asthma, embraced by Dr Stenton. An historical fact is that, in Griffiths there was no finding of liability against British Coal in respect of the causation of asthma, it was otherwise for exacerbation of asthma. Interestingly Dr Stenton commented that the tests performed at his request were consistent with the presence of COPD, although he rejected that as a diagnosis, subject to the proviso that if the MAP LFTs had not been properly carried out, his conclusion that there was no COPD might have to be revised. Dr Moore-Gillon interpreted Dr Stenton’s report as not rejecting entirely Dr Lee’s diagnosis but only on the basis of balance of probability. This turned out to be an erroneous conclusion, since, in evidence, Dr Stenton said that if a specialist is looking for COPD, what he would normally expect to find is lung volumes which are elevated and gas transfer which is reduced because of the associated emphysema. That was not always the case but most men with COPD have some degree of emphysema and impaired gas transfer. Standing back and looking at Dr Lee’s results and applying the diagnostic criteria for COPD, Dr Stenton said that Dr Lee could not properly have made the diagnosis which he did; 13:13:18. Dr Lee and Dr Moore-Gillon were both of the opinion that both series of tests, the first although somewhat imperfect, did provide some evidence of an obstructive defect. Dr Lee recorded in the MAP report:

Flow volume loops- non ideal ĉ hint of airflow obstruction.

Comment: Degree of variability amongst all the FEV1 results & I think the reversibility is more apparent than real.

Conclusion: mild COPD.

He also noted four entries in the general practitioner’s records in which it was recorded that Mr Benyo had attended because of chest complaints of one kind or another. Despite the absence of entries in the general practitioner records, or elsewhere, indicating that Mr Benyo had ever suffered from asthma, such was Dr Stenton’s diagnosis recorded in his second report, by which he stood when giving evidence. The real problem for Dr Stenton was that, when LFTs were carried out for the purposes of his second report, they demonstrated airflow obstruction by reduced FEV1/FVC ratio with only a modest reversibility after bronchodilator. He was constrained to agree under cross-examination that the flow volume loops showed traces of obstructive disease but, when “taken in isolation”, these were of no value. Both Dr Lee and Dr Moore-Gillon agreed that the flow volume loops produced in the MAP LFTs showed some concavity, which was suggestive of airflow obstruction. Dr Stenton was reluctant to direct his attention to the traces obtained on that occasion and confined the basis of his opinion forming to the numerical results alone. His argumentative characteristic was much in evidence in the passage of his cross-examination at 13;100:17 through to 13:120:25. In reporting on the results of his LFTs, Dr Stenton had commented:

These features suggest a combination of obstructive airways disease and a restrictive abnormality. The airflow obstruction could either be due to asthma, as suggested by the response to bronchodilator and unimpaired gas transfer, or to other forms of chronic obstructive pulmonary disease. (G p7 ¶23)

In course of cross-examination, Dr Stenton was invited to elucidate what other forms of COPD he had in mind when writing the above paragraph. His reply was that he had not expressed himself as well as he might, and that he meant no more than "chronic obstructive pulmonary disease". He continued: (13:101:14)

The difficulty is that some people might refer to fixed airflow obstruction as part of asthma, call that COPD. But I believe that needs to be distinguished from COPD as we are talking about it as part of this process. … i.e. COPD caused by dust, fumes, cigarette smoking.

It is hard to comprehend why, if this was Dr Stenton’s meaning, he had included any reference to COPD in this paragraph. Furthermore, when writing his second report, Dr Stenton was prepared to rely on the LFTs in the MAP, in preference to those carried out on his behalf which had produced a result which was more consistent with Mr Benyo’s case that he did suffer from COPD.

My conclusion is that Dr Lee properly performed his examination and correctly interpreted the “non-ideal” lung function test results, both numerical and analogue. The Third Party drew attention to the fact that, at some stage, Mr Benyo had been prescribed Beta blockers by his general practitioner. The evidence was that the taking of such medication by a person who suffered from asthma would be most likely to provoke an asthmatic attack. The description which Mr Benyo gave of the effect which the prescription of Timolol had had upon him was:

The general practitioner put me under different tablets and I was going different and went in and said: I cannot take these sort of tablets, it is making me very badly (Sic). I could not see where I was going, I was going dizzy and all sorts. 17:161:6)

Mr Benyo was taken off Timolol after two months. Earlier, Dr Lee had given evidence to the effect that the absence of any effect on Mr Benyo’s breathing while he was taking these tablets was a strong indication that he was unlikely to have been suffering from asthma. I found this evidence to be entirely credible and supportive of the Defendants’ case that Dr Stenton was wrong when he expressed the contrary opinion.

I reject Dr Stenton’s opinion that Mr Benyo ever suffered from asthma.

Insofar as the assessment of disability is concerned, it will be recalled that the criterion for a disability rating score of 30 per cent is:

In addition to the dispute concerning the diagnosis of COPD, an issue was raised concerning Mr Benyo’s osteo-arthritis and VWF (vibration white finger).

It will not have been lost on the reader that, according to the history obtained as part of the MAP examination, the osteo-arthritic knee played no part in the difficulties which prevented the claimant from walking. Equally, his angina had no demonstrable impact on this form of activity. Clearly, the assessment of overall disability fell within the above definition. Dr Stenton set out his conclusions on disability and prognosis at paragraphs 54 to 56 of his report (G p10) thus:

54.

Mr Benyo’s account of his symptoms led to his overall disability being quantified at 30%. The apportionment of this was speculative in that there was no good evidence of COPD yet there was good evidence of cardiac disease from the former history of angina and the presence of left ventricular hypertrophy on the electrocardiograph.

55.

Mr Benyo’s lung function measurements did not satisfy the criteria for even mild impairment whereas the 20% disability attributed to COPD is at the upper limit associated with mild impairment.

56.

Given his well preserved lung function it is unlikely that Mr Benyo could have suffered a 10% disability as a consequence of COPD at the age of 40 even if the diagnosis of COPD was correct. In 1981 when he was 44 years old he was noted to have no respiratory symptoms, in 1982 he did not complain of anything and in 1983 he was said to be totally asymptomatic.

What this part of the report signally failed to address was the cause of the reported breathlessness on walking. If the diagnosis of asthma is rejected, as it has been, and if the shortness of breath on walking is genuine and only rarely affected by angina, it is not possible on the evidence to discount the opinion expressed by Dr Lee in his MAP report that it was caused, in substantial part at least, by COPD. The simple answer to the argument encapsulated in paragraph 56 of Dr Stenton’s report (above), is that the human lung has a substantial reserve capacity which enables it to lose its reserve before any symptoms become apparent. Thus normal, or apparently normal function with an absence of complaints of respiratory symptoms in the period 1981 to 1983 is not inconsistent with some already existing, but symptom free, loss of lung function. It can be said that the letter from Barnsley Hospital in 1987, is not inconsistent with this evaluation of the evidence. Therefore, Dr Lee’s diagnosis is acceptable on this point.

A further criticism was made of Dr Lee which was that in his approach to diagnosis he had “given the benefit of the doubt” to Mr Benyo. As it happens, a similar point was raised with regard to Dr Ledson who reported in the case of Mr Owen (deceased). I do not propose to dwell on these points since, in my judgment, they are not worthy of elaborate discussion. What has happened is that each of the two doctors agreed under cross-examination, and in answer to questions which were themselves leading, that they had given the “benefit of the doubt” to the patient whom they were examining. But that is only a valid criticism of their evidence if those answers are taken out of context. On a fair reading of their evidence as a whole, I am quite satisfied that they did not disregard the requirement in the CHA that they had to reach their conclusions on the balance of probabilities. I am confident that that was how they had approached the matter.

Mr Broad. The principal dispute here was whether or not Dr Jarad had correctly diagnosed COPD, as well as asthma. The further point was whether Dr Jarad’s assessment of the proportion of disability to be attributed to asthma was correct. In the end, Dr Jarad fairly conceded that he had underestimated its importance. Notwithstanding Dr Stenton’s observation (G ¶39) that Mr Broad’s history:

… suggests gradually worsening symptoms and there are no clear features to indicate asthma he does have some quite prominent night-time breathlessness which is often a symptom of asthma.

And in paragraph 40:

There is no clear evidence of any other disease process … than asthma (his) … lung function abnormalities can be explained entirely by this condition and it is speculative whether Mr Broad has additional COPD caused by another disease process.

At paragraph 61, Dr Stenton wrote:

(Both) lung function tests show no clear evidence of any disease other then asthma and it is speculative whether Mr Broad has additional COPD.

In this case, there was a striking example of Dr Stenton’s ability to argue from two inconsistent results that they were, nevertheless, consistent with each other. In his first report, made at a time when the only LFTs available to him were those obtained as part of the MAP, Dr Stenton had recorded his view that when airflow obstruction is caused by COPD it is generally accompanied by a reduction in gas transfer, but that when it was caused by asthma it is mildly increased or normal. When tests were carried out on his behalf, a low gas transfer result was obtained, but this he sought to explain on the suggested basis that there had been an underestimate of the alveolar volume – a defect of which there had never been any evidence. In paragraph 42 of his second report (G p22), Dr Stenton accepted that the majority of Mr Broad’s disability was caused by airways disease. He had, however, obtained a history that Mr Broad had started to complain of respiratory symptoms when he was in his 30’s and which had gradually worsened. Dr Stenton observed that there were no clear features to indicate asthma and that although the gas transfer was low, it was “probably artefactual” due to the underestimate of alveolar volume. He went on to discuss the difficulty of apportioning disability between two disease processes which might be present and (paragraph 42) continued:

My estimate is that the variable component of Mr Broad’s airways obstruction (ie the proportion which responds to bronchodilator and is attributable to asthma) is contributing one third to one half of the disability. The remainder can be attributed to the fixed component which could be due to either asthma or COPD. My preference is to attribute it to the disease process that is known from the lung function tests to be present (ie asthma) rather than to a disease process that might be present (ie COPD). It could reasonably be held that in the absence of any further information that it should be apportioned equally between asthma and COPD but that to a large extent depends on the a priori probability of someone like Mr Broad having COPD.

By which, Dr Stenton explained that, he had meant that he could not accept that the facts that Mr Broad had had a long history of working underground and had been a smoker could or should have influenced his diagnosis; see 13:144:3-13.

Given that Dr Stenton accepted that the history of the complaint to which he drew attention, and which was typical or consistent with the development of COPD, coupled with the undisputed finding that there was an element of COPD, I am wholly unable to comprehend on what basis, he rejected the presence of COPD as a mere speculative possibility. That he did so has not encouraged a belief in me of Dr Stenton’s impartiality.

This leaves for consideration the fact that Dr Jarad missed a number of entries in the medical records which suggested that the history of asthma was of more significance that he had thought when completing the MAP. The matter was explored in cross-examination (15:145:14)

Q. I suggest that you underestimated the contribution that asthma was making in Mr Broad's case. Would you agree with that?

A. Maybe a little.

Q. Is the answer yes?

A. Yes.

Q. So, your assessment of apportionment of disability would have to be upwardly revised to some extent?

A. To some extent.

Q. So, do you agree that the apportionment of 10 per cent out of a total disability of 60 per cent was in fact incorrect?

A. I have reflected on this case since and I continue to reflect on this case now and I think that there may have been slight underestimation of asthma, but I have to emphasise the word ‘slight’.

Q. But you agree that the assessment of 10 per cent which also takes into account obesity is an underestimate?

A. Yes.

Q. The result was, my last question, the weight given to asthma was minimal in terms of contribution to disability in your MAP assessment; is that right?

A. It was less than ten per cent, yes.

Q. And you now agree that was an incorrect assessment?

A. It was a slight underestimate.

JUDGE: Having rethought it, what do you think it should have been?

A. 20 per cent I would say now, my Lord.

JUDGE: Asthma and obesity?

A. Asthma and obesity.

JUDGE: And the overall disability --

A. Would have been the same, 60 per cent.

JUDGE: Remains constant.

Although Mr Spencer endeavoured to persuade me that there should not be any adjustment to reflect this change of assessment, it must follow that one should be made. What the Court is here concerned to achieve is a fair reflection of how the CHA ought to have been operated in practice.

Mr Brown. The examining doctor for the MAP was Dr Cooke whose findings were that both chronic bronchitis and COPD were present. There was 30 per cent disability resulting solely from COPD. Life expectancy was reduced by some 7 years. Dr Stenton concluded that chronic bronchitis was diagnosed without adequate corroboration in the medical records. As a matter of fact this was demonstrated to be incorrect from the various references which exist in the medical notes. The history of smoking was incorrect and the assessment of disability was too great. He assessed the total disability at 10 to 20 per cent. In essence this part of the dispute is readily solved by reference to the disability chart in the CHA which rates, at 30 per cent, a lung function impairment as moderate when:

Breathless at normal pace for age walking on level ground.

In the MAP, Dr Cooke had recorded:

Chronic productive cough started in the early 1960’s.

He was not short of breath when he left the pit. It started in 1996 & has progressed. On the flat he can walk fairly normally but on inclines stops at 400 yards and cannot continue or walk after climbing a flight of stairs because of breathlessness. He can only hurry on the flat for a few yards.

On the lung function tests, Dr Cooke concluded that there was evidence of moderate airways obstruction but no emphysema.

In this instance a passage from Dr Stenton’s cross-examination is illustrative of his general approach. Thus, day 14:21:6:

MR SPENCER On the flat, he can walk fairly normally but on inclines stops at 400 yards and cannot continue to walk after climbing a flight of stairs because of breathlessness. He can only hurry on the flat for a few yards. That, I suggest, Dr Stenton, if we look again in 05, page 21 is consistent … with the 40 per cent disability score. Do you see that? Breathlessness on walking 100 yards or climbing one flight of stairs at a normal pace.

A. I ask my Lord to compare the statement ‘breathless on walking 100 yards’ with the statement ‘on the flat he can walk fairly normally but on inclines stops at 400 yards.’ I believe the two are different.

JUDGE: What about the other half of 40 per cent, or climbing a flight of stairs at normal pace?

A. ‘Cannot continue to walk after climbing a flight of stairs’; this is more equivocal, my Lord.

MR SPENCER: That is because of his breathlessness, is it not, Dr Stenton?

A. Certainly because of his breathlessness, yes.

JUDGE: They are disjunctive not conjunctive.

A. That is true.

MR SPENCER: We see in the lung function impairment column that it equates with middle of the range/moderate lung function impairment.

A. Yes.

Q. We know that Dr Cooke in fact chose to put it in the 30 per cent category, which is the bottom of the range for moderate lung function impairment, did he not?

A. That is correct.

Q. He got it exactly right, did he not, Dr Stenton?

A. My view remains that --

JUDGE: Could you answer counsel's question because that is the question around which ultimately my decision revolves. Put the question again.

A. Yes.

MR SPENCER: Dr Cooke got it exactly right when he put it in the 30 per cent category?

A. I disagree with that.

Q. Very well. Would you please look at the quotation that we find in paragraph 52 of your second statement.

A. Yes.

MR SPENCER: ‘Fairly normal on the flat but breathless on inclines and stairs.’ It is put in inverted commas; is that intended to be a paraphrase of what Dr Cooke had recorded?

A. No, it is intended to be a direct quote but it appears that part of the statement has become missing.

Q. A direct quote from whom, please, Dr Stenton?

A. From the RS. From page 11 of the MAP.

Q. …

A. Internal page 11 of the MAP.

Q. …

MR SPENCER: I think I just put that to you. I was asking whether that was intended to be a quotation or a paraphrase of what we find on page 84 in bundle F1?

A. It was intended to be a quote but I -- yes, I started as a quote and that was the intention but it clearly ended as a paraphrase.

Q. It does not quite do justice, as a paraphrase, to what Dr Cooke recorded on page 84: ‘On the flat he can walk fairly normally but on inclines stops at 400 yards.’ We do not have that in your quotation, do we?

A. No.

Q. And stairs, he said: ‘After climbing a flight of stairs, has to stop because of breathlessness.’ So, the having to stop after a flight of stairs 400 yards on inclines is not to be found in your quotation, is it?

A. No, it is not a complete quotation.

Q. And your quotation, or paraphrase, paints a less disabled picture than Dr Cooke's recording of Mr Brown's words, does it not?

A. If it does, it was not intended to do so.

Q. I am putting to you now whether it does or it does not, Dr Stenton?

A. My view is that it does not.

Q. It does not?

A. Paint a less severe picture.

Q. You think that your paraphrase accurately sets out the description of disability recorded by Dr Cooke, do you?

A. I think it is a reasonable summary of Dr Cooke's slightly longer paraphrase.

Further comment is perhaps unnecessary. In my judgment, the downwards adjustment which Dr Cooke made from a possible 40 per cent to 30 percent was entirely fair and justified. Dr Stenton’s rigid adherence to a position which could not be defended is plain from the above exchanges. Insofar as there was a challenge to the estimate of life expectancy, this was settled by reference to the tables which are to be found at p193, 194 and 200 of the CHA. Dr Stenton was, however prepared to accept that if Dr Cooke’s assessment of Mr Brown’s lung function was correct, then he would not disagree with the reduction in life expectancy. As I have indicated, I do not find Dr Stenton’s opinion to be acceptable in this instance. Dr Moore-Gillon was in broad agreement with Dr Cooke.

Mr Ellis. The MAP diagnosis was of COPD and chronic bronchitis with respiratory disability being assessed at 40 per cent. Because of the extent of disability, Dr White, who carried out the MAP, concluded that the loss of expectation of life was eight years. The challenge came in respect of this assessment. It was Dr Stenton’s contention that this diminution was an overestimate because of the template in the CHA; see paragraph 63 of the report in G p49. The argument is expressed as follows:

The lung function measurements suggest that his FEV1 dropped by approximately 31 mls/year from 1988 to 2001. Mr Ellis was still smoking in the late 1980’s and early 1990’s and his more recent rate of fall of FEV1 might have been less than that but the rate tends to increase slightly with age, and the figure of 31 mls/year would be in the region of 1.4 litres at the time of his projected death, but death from COPD is unusual with an FEV1 in that range. … On that basis it is my view that the reduction in Mr Ellis’s life expectancy from COPD is no more than 2 years.

Dr Stenton faced cross-examination on this topic on day 14, page 47 onwards. There was good evidence that in 1991 and 1995 Mr Ellis had produced measurements of lung function which were plainly unreliable and were less than the optimum. Dr Stenton only had available to him the reports of lung measurement in records which had been maintained by British Coal. The measurements of lung function obtained by Dr Stenton, only two years after the MAP, demonstrated an annual loss of 115mls/year which makes his calculation (above) of 31 mls/yr unsustainable. There was in fact no reference in the report G p42 to this apparently surprising result, surprising, that is, if Dr Stenton had been correct about the 31mls/yr figure. He was cross-examined about this (14:62:9):

MR SPENCER. Would you accept it from me that it is certainly a topic worthy of discussion in your report if you had observed it?

A. I certainly observed it. And yes.

JUDGE: I was going to say to you, now answer the first part of counsel's question. A topic worthy of discussion?

A. Yes, it could have been discussed.

JUDGE: Should have been?

A. Should have been discussed. It would have made no material difference to my conclusions, I believe.

This short extract is illustrative of Dr Stenton’s characteristic of clinging to an untenable position. I reject his opinion and prefer that of Dr White.

The Third Party raised other issues in regard to Mr Ellis’s case. The principal issue was whether, and to what extent, there should have been reflected in the MAP the fact that Mr Ellis had suffered for a number of years from a more or less intractable clinical depression. In their opening statement V1¶172, the Third Party had stated its position as:

It is the disability … occasioned by the respiratory damage which must be assessed. That cannot be assessed without reference to the full circumstances including the disability occasioned by the depression which would render the patient less mobile (and thus subject to less [relative] disability from the respiratory component). There has been a failure … properly to assess these concurrent causes of disability. ([ ] added.)

There was a suggestion made in the course of Dr White’s cross-examination that, when he made his MAP assessment, he had ignored the presence of depression. His response was that he had not made express mention of this factor:

but what I did note is that the description of breathlessness that he gave to me indicated that according to the guidance, I would have estimated 60 per cent disabled.

Now, it seems to me that the degree of disablement is out of all proportion to the impairment of lung function that had been recorded so, rather than assess him at 60 per cent, I have assessed him at forty per cent which is nearer what I would have expected from the degree of lung function recorded. (12:36:3-37:12)

In my judgment, this passage demonstrates the skilful and fair approach of Dr White to the task which confronted him. He was also challenged about the presence of osteo-arthritis of Mr Ellis’s neck and shoulders; his conclusion was that although they were present, they did not impact on Mr Ellis’s breathlessness. There is no sound basis for coming to any other conclusion.

In addition to the conditions already identified, Mr Ellis also suffered from VWF. This, it was submitted, was a relevant co-morbid condition which had been ignored by Dr White with the result that Mr Ellis had been awarded compensation in respect of loss of “services”. Had VWF been noted, this claim would have been defeated. Thus was exposed a weakness in the CHA additional to those already discussed, namely depression and osteo-arthritis. There was a lack of evidence to indicate whether the award was unduly inflated because no mention of this condition in the MAP. I am prepared to listen to further argument on this point.

Mr Kulcsar. The MAP was conducted by Dr Qureshi. His finding was of COPD and simple pneumocouiosis with 50 per cent respiratory disability. Dr Qureshi did not diagnose chronic bronchitis although there were records which could have supported such a diagnosis, nor did he diagnose asthma, despite his conclusion “Airway obstruction demonstrated with significant broncho-dilator reversibility (partial) consistent with COPD”; F1p155-6. Noted in the history obtained at the MAP (F1 p154 was the presence of:

‘hip arthritis’ also ‘bowel op(eration) for cancer earlier in year (got it all out), Neck injury after car crash 1988’.

There was a straightforward issue between Dr Stenton and Dr Qureshi over the question whether or not there should have been a diagnosis of asthma, but this is not germane to the issue which is of current interest. I have not overlooked the fact that Dr Moore-Gillon was in favour of such a diagnosis, but this does not impact on my assessment of Dr Stenton as a witness. Of more relevance, was Dr Stenton’s stance in relation to the finding, on the LFTs which were performed at his request, that the low lung volumes “suggest an additional disease process the nature of which is unclear”. At 14:87:4, Dr Stenton was asked about this passage during cross-examination. It proceeded thus:

MR SPENCER. … it would be absolutely routine for someone who does, as you do and have told us you do, a lot of medico-legal work, when he encounters pathology that may be hitherto undiagnosed, to communicate directly with the individual's general practitioner. You do not involve yourself in his treatment because that is not why you have been instructed to examine him but, having found out what you do, you communicate to his general practitioner so that the sort of investigations that he may need can be considered by the person in question with his general practitioner. That is right, is it not?

A. That would depend upon the seriousness of the disease and how amenable it is likely to be to treatment.

Q. But if you do not know what the disease might be, but you need an x-ray to discover that, the only way in which that point can be dealt with is by having the x-ray, is it not?

A. One needs to balance the risks of alarming the patient, causing anxiety, versus the risks of establishing a treatable disease.

Q. There does not need to be a risk of alarming the patient because, if you communicate with the general practitioner, the general practitioner will then communicate with the patient if the general practitioner thinks it is appropriate and deal with this patient in the ordinary way?

A. I believe that is incorrect. A request for a chest radiograph perhaps coming out of the blue, perhaps the GP saying the specialist feels you need the chest radiograph, that would be alarming for most individuals.

JUDGE: It is simply a question of method, is it not, how the general practitioner approaches that information?

A. Well, my Lord, I think it is a question of balancing the worry against the likelihood of finding something that is treatable.

This short extract provides a further example of Dr Stenton’s characteristic of adhering to an untenable position long after it should have been obvious that such was the case.

In this case, too, there was an issue in respect of co-morbidity in relation to the arthritis of the hip, noted in the MAP as “Uses walking stick to walk”, but to which there was no reference in the answers to questions 34 and 35 of the MAP form. It was Dr Qureshi’s opinion that this condition did not impact on Mr Kulcsar’s breathlessness. In addition Dr Qureshi also considered that the bowel operation had not affected the expectation of life. On this both Dr Stenton and Dr Moore-Gillon were in agreement, some modest allowance ought to have been made to reflect the fact that that operation had been performed. Dr Stenton was the only one who vouchsafed a figure, which would have been something under 5 per cent to reflect the risk. Dr Moore-Gillon was of the opinion that the estimate at the time of operation would have been for a reduction of about 1 year, however he was to make the point:

Which I think illustrates the difficulty very clearly of applying this sort of process to individuals, because either he would have died within three or four years or would not have died at all but (was) the well man, one has to look through a process like this to say ‘one year’.

Some modest shaving to the assessment of general damages is required to reflect the risk of an accelerated death occurring. Reduction of the “general damages” figure of £11,713 to the nearest round figure would seem to be an appropriate adjustment.

As for asthma, it will be recalled that Dr Qureshi had noted the significant broncho-dilator effect and that as a matter of reasonable expectation, therefore, he cannot have been unaware of the possibility of this being the case of an asthmatic. Both Drs Stenton and Moore-Gillon would have included such a diagnosis. Dr Stenton’s view F66¶86 was that there was “enough evidence to establish a diagnosis of COPD on the balance of probabilities. The diagnosis is not certain … There was moderate reversibility of the airflow obstruction … The impaired gas transfer would not be expected with asthma …”. He then raised the possibility of there being another disease process present; see above which, having regard to that exchange and Dr Moore-Gillon’s opinion, I totally reject. Dr Stenton was firm in his opinion, by the time he gave oral evidence, that “an element of Mr Kulcsar’s condition was asthma” and that he fulfilled the diagnostic criteria for that condition under the CHA. Dr Moore-Gillon pointed out that this last comment was not strictly accurate, in that the conditions noted were those, in the absence of which the diagnosis should not be made, rather than that if those conditions were present it should be made. Additionally, Dr Moore-Gillon observed that although he would himself have made a diagnosis of asthma, he did not consider that such omission on the part of Dr Qureshi was outside the scope of a reasonable diagnosis. The Court is not here concerned with the question “did, or did not, Mr Kulcsar suffer from asthma?”. Rather was the question whether the diagnosis indicated either an error of approach, to the application of the CHA Guidelines, or of the Guidelines themselves.

In my judgment, the diagnosis made by Dr Qureshi was a reasonable one. There is therefore no case for substituting the one for which Dr Stenton had contended. Furthermore the Guidelines are not shown to have been incorrect or inapposite.

Mr Owen (deceased). The MAP was conducted by Dr Ledson whose opinion was that both COPD and chronic bronchitis had been present, and that there was 100 per cent disability in the year before Mr Owen died. As to which 30 per cent was attributable to COPD and the majority to the recurrent lung cancer from which he had suffered.

Death had been caused by Pneumonectomy of one lung, due to cancer, and recurrent cancer in the remaining lung. Mr Owen had been a heavy smoker for much of his life until 1989. It was Dr Ledson’s opinion that Mr Owen had suffered from mild COPD from the age of 55 and moderate from the age of 62; see F1pp192, 194. Also, on this MAP form Dr Ledson made the plainly inappropriate comment that:

The moderate COPD present did contribute to loss of expectation of life. Using the Guidelines … 30% COPD in a 67 year old man causes 4 yrs loss of LE. [197] (emphasis added).

Dr Stenton did likewise. The principal challenge mounted on the basis of Dr Stenton’s report (G p75) was to Dr Ledson’s diagnosis of chronic bronchitis. This challenge was founded on the absence of corroboration in the records; this challenge was faulty, because there was in fact some corroboration of chronic bronchitis in the records which had been missed by Dr Stenton. The diagnosis depended on the answers to the CQ, as to which see A6 p41-2 and questions 35 to 39. The form was supported by a Statement of Truth. There was, in my judgment, no reason to go behind it since corroboration was not, and never had been, essential to the validity of that diagnosis. If the matter were to be tested on the basis that the case had had to be determined by a judge, there could have been no objection to the evidence of the widow (as contained in the CQ) from being received and acted upon. There would, in those circumstances have been a case which was unanswered, unless the Third Party had been able to produce contradictory evidence which was acceptable to the Court.

There was also challenge to the apportionment of disability attributable to COPD. Dr Stenton had put forward a figure of 20 per cent, with which Dr Moore-Gillon was in agreement. The problem for Dr Ledson was a letter written in 1995 (X core p133) the contents of which, he agreed were consistent with only 20 per cent respiratory disability at that stage. It is difficult to sustain the contention made in the MAP that he true figure should have been the 30 per cent which had been allocated. The recovery of contribution must be adjusted accordingly, in this case.

The last area of disagreement between the parties was the degree of disability from which Mr Owen had suffered during the last year of his life. It was the opinion of Dr Stenton that he had been almost 100 per cent disabled during this period. Dr Ledson had attributed some disability to COPD during the same period. The documents referred to make Dr Stenton’s position all but untenable; see X core p141, 147, 149 151 and 152. Dr Ledson’s conclusions on this issue are to be accepted.

The Third Party later amended their defence and pleaded that:

If … the Deceased needed nursing care, his psychiatric problems are likely to have contributed to this requirement; and the disability resulting from COPD has been materially overestimated having regard to the Deceased’s cardiac disease and psychiatric problems. (A7 p107).

The Third Party was evidently relying upon Dr Stenton whose opinion was that this man:

Was approximately equally disabled by his respiratory and his psychiatric problems and that there was a small contribution from his cardiac disease. I believe that his disability from COPD should have been quantified in the region of 35%. (G p85¶38)

During cross-examination Dr Stenton agreed that Mr Taylor’s inability to walk more than 30 yards in the year 2000 had had nothing to do with depression, any more than had the fact of his inability even to cross his own living room in the following year. Although Dr Stenton adhered to his estimate of the equal apportionment to disability of COPD and depression, he nevertheless agreed that the latter condition made no contribution to the respiratory condition; (14:128-129). It was submitted that the instant case demonstrates deficiencies in the way in which the CHA had been operated from its inception, in that there was no requirement in it for the RS to identify non-respiratory co-morbid conditions. Had there been such a requirement, on the facts of the present case, it was submitted that neither special damages nor future losses would have been included in the compensation calculation. It was purely fortuitous that those claims had been reduced by reference to some other medical condition. The flaw in the CHA remained, albeit it had not inflated the compensation awarded.

The Defendants’ submission on this evidence was that, if the psychiatric condition played no part in the causation of breathlessness then, the whole of the disability should be held to be attributable to the effects of COPD. The criticism which was made of Dr Morrell was that he had failed to take any account of disability arising from the psychiatric condition and include reference to it in the MAP report. There were copious records of that condition available to, and read by, Dr Morrell when carrying out the MAP and, as he was to observe, that it had been “hard to avoid” the fact that Mr Taylor had suffered from this condition.

But the Third Party asserted, rather than established by admissible evidence, that it was the psychiatric condition which disabled Mr Taylor from leaving his home and that this ought to have been reflected in the apportionment exercise. It was the fact that Dr Morrell had not answered question 33 on the MAP form, which provided the opportunity to record the existence of a co-morbid condition which did not impact on the Deceased’s breathlessness. It was Dr Morrell’s view that Mr Taylor’s psychiatric condition was one which fluctuated and did not, therefore, confine him to his home all the time, so the COPD at those times was indisputably the disabling condition. It was further Dr Morrell’s opinion that the fact that Mr Taylor for much of the time did not venture from his house or attend to household matters was volitional on his part, rather than due to his psychiatric disability.

There having been no psychiatric evidence to contradict the evidence of Dr Morrell on this point coupled with the fact that he had, according to him taken account of the psychiatric condition in his examination, I have not been persuaded that his assessment of the extent of disability was one which a careful RS could not have made. It is even a possibility that the psychiatric symptoms were caused or exacerbated by the severity of the effects of his COPD. Expressly, however, I do not base my decision on this point. It is a point worthy of more than passing interest, as to the general efficacy of the assessment process within IRISC, that when this claim was processed, the assessor reduced the claim for loss of earnings by 50 per cent due to the presence of some other co-morbid condition; see A core p117, 120 as an exercise of discretion. The co-morbidity in question was not the psychiatric condition, however, but a totally unrelated hernia. It was common ground between the parties, by the end of the case that, this latter condition had no real effect on the extent of Mr Taylor’s disability and arguably it was a hard decision taken by the assessor. However, the submission was that the fact that the MAP form did not alert IRISC to the disability caused by depression meant that a claim in respect of loss of earnings was allowed when it would not otherwise have done. Had the Notes for Guidance required the RS to identify the existence of a co-morbid non-respiratory condition on the MAP form, then it was submitted that there would have been no claims for loss of earnings, services or the like. That was a defect in the CHA, but has now been corrected. As to the generic point which the Third Party make in this case, see under The legal effect of the CHA, above. So far as Mr Taylor’s case is concerned, I am satisfied that the modest recovery made by his dependant was broadly correct, even if for reasons which could not properly be justified.

Mr Mellor. His case was included, not as a lead claimant, but because of a particular point in regard to the rating of a disability percentage. The argument being that even if Mr Mellor suffered from COPD it was to such minor effect that no disability should have been scored. The MAP was conducted by Dr Clifton. The form is to be found at H/2p23 et seq. His findings are recorded at H/2 p35:

FEV₁/FVC ratio is a little low at 70% and if best RVC value pre broncho-dilator is used, then FEV₁/RVC ratio post broncho-dilator would have been 68%. On balance of probability suspect a very mild COPD component on background of asthma. 9% of reversibility of FEV₁. Flow volume loops of variable quality but no small airways disease. Lung volumes and gas transfer normal. (emphasis added)

Dr Clifton diagnosed that Mr Mellor had chronic bronchitis, COPD and asthma and noted that he also suffered from hypertension which was controlled and not contributing to respiratory disability. Finally, Dr Clifton noted that Mr Mellor had had bi-lateral knee replacements which also did not contribute to respiratory disability. He assessed total respiratory disability at 20 per cent, of which he attributed 10 per cent to COPD and 10 per cent to obesity and asthma. It was in regard to the finding of COPD and the attribution of 10 per cent disability to that condition which formed the challenge in Mr Mellor’s case.

Dr Stenton’s report formed the basis of this challenge. In G p91¶54 Dr Stenton wrote:

Mr Mellor’s lung function was well within the normal range. His FEV was slightly above the predicted value and his FEV₁ was slightly low giving a FEV₁/FVC ratio that appears slightly low though it is within the normal range for a man of Mr Mellor’s age. There is no impairment of gas transfer and no over-inflation of the lungs, and in the context of a man with an established diagnosis of asthma these measurements provide no evidence of COPD.

Dr Stenton passed the comment about Dr Clifton’s ratio (above) as being “rather contrived particularly as there was no other evidence of obstructive airways disease”. In his conclusion ¶34 Dr Stenton believed “there was no good basis for a diagnosis of COPD”.

Dr Clifton explained in his oral evidence how he had arrived at the equal division between COPD and asthma. The important factor here is that the CHA disability Rating Scale only moves in steps of 10 per cent (O5 p189). In theory, a reading of 2 per cent would have to be rated at 10 per cent. But as Dr Clifton observed, when you reach low percentages in the range from 2 to 6 “it gets rather difficult when you are getting down to small numbers like that.” He was challenged that he had given Mr Mellor the benefit of the doubt at each stage of his analysis so that he had not only diagnosed COPD but had also rated it at 10 per cent. His reply was:

It is not a case of ‘benefit of doubt’. It is a case of looking at the evidence and, although it is only very mild COPD and based on the FEV₁ vital capacity ratio, then I have to make that judgment.

In his oral evidence, Dr Stenton withdrew the criticism which he had made of Dr Clifton’s use of the pre- and post-broncho-dilator measurements and confirmed that he, too, had also obtained LFTs which demonstrated a similarity with those which he had obtained for Mr Brown (above). He was constrained to agree that they were similar and were “consistent with” rather than “typical of” COPD. When shown the results from his own LFTs he agreed that they did show over-inflation and was unable to explain why he had reported otherwise. Dr Stenton sought to say that the reference in his report to this feature was “redundant”. In what has by now become a typical response of Dr Stenton to a fair question, the following exchange took place: (14:141:15)

MR SPENCER: Can I suggest to you, Dr Stenton, that if your junior came to you with your results … and asked your opinion, you would tell him these results could be asthma or they could be COPD ?

A: I would say, as I said at paragraph 29, the results are typical of asthma.

JUDGE: Could they be COPD? That was the other half of the question?

A: My Lord, there could be an element of COPD which is leaving Mr Mellor’s lung function at 95 per cent of the predicted value? Yes, there could be, but in my view, that would be a trivial degree of COPD.

Later:

A: I disagree with the quantification of COPD at 10 per cent. I accept that there could be a trivial degree of COPD. But I do not accept 10 per cent.

Dr Stenton was evidently unwilling or unable to appreciate the dilemma created by the stepped percentage ratings in the Rating Scale and did not address that in his evidence. Once again, I did not find Dr Stenton’s evidence to be of assistance in reaching my decision on this issue. Dr Clifton was, self-confessedly, cautious in his approach to diagnosis. The extract from his evidence quoted above, persuades me that he fully understood the nature of the determination which was required from him. I am confident that he would not have made the diagnosis of COPD 10 per cent, if the real value was less than 5 per cent. After that it was a question of his judgment whether and if so how it should have been rated. Dr Moore-Gillon, although not making the same diagnosis himself, believed that Dr Clifton’s diagnosis was one which was open to a reasonable RS.

Given that the CHA requires, on occasion, “a slightly false position” or “distortion of the result” (my comments on 35:68:22-25), I am persuaded that Dr Clifton’s apportionment is not open to the criticism to which it was subjected by the Third Party. It should be remembered that, although the system worked in Mr Mellor’s favour on this occasion, there are just as likely to be other occasions when it works the other way and a claimant does not receive a valuation based on, say, a 14 percent rating, but only to the next lowest band. That is in the nature of any schemed system.

The final criticism which was made of Dr Clifton’s examination in relation to chronic bronchitis was that his examination was insufficient to have enabled the diagnosis to be made. Furthermore, the evidence was only elicited by the resort to leading questions. In V7¶258, it was said that:

The necessary details of cough and sputum with the requirements of the MRC definition were not … elicited by Dr Clifton … without having to resort to leading questions.

The record should be allowed to speak for itself: (12:130:19-132:15)

Q. Do you recall what specific questions you asked of Mr Mellor on this subject?

A. I have a standard series of questions, the exact wording may vary slightly but basically it comes down to: when you were working as a miner, did you have a cough and would you be coughing up phlegm? In Mr Mellor's case, presumably he would answer yes, and I would then ask questions as to for how long, would this be occasionally or would it tend to be all year round. And if they say that it was all year round, then I would accept that. If they would say only occasionally or for a few months of the year, then I would ask them how many months a year, just in the winter months, for how many months in the winter?

Q. Would you prompt them with ‘three months’?

A. Not specific numbers. The only prompting I give is ‘all year round’ or ‘only for a few months and if so how many, roughly’.

Q. And are there any other questions you would normally ask or are those the two main questions?

A. Those are the main questions. I certainly tried to supplement it as to whether or not the cough got better, worse or stayed the same when they left mining, trying to give me some idea as to whether or not this was more than usual, especially somebody like Mr Mellor who has been a non-smoker. So, with only mild symptoms, I would expect his symptoms to very much settle when he left the employment and those are the answers that he gave me.

Q. So you did not go on further and question him about the number of years that this would be experienced over?

A. Not the exact number of years because they live with it, year in and year out and as long as they have done it for more than two years, then that is sufficient for me to realise that they have met the World Health Organisation criteria.

MR OWEN: But you did not question Mr Mellor about the number of consecutive years at all, did you?

A. I would make certain that it was for two years or more in succession.

Q. By prompting him?

A. I would not ask a completely open question like ‘for how many years’, but you know, basically ‘was this two or more years’.

Q. And he would say ‘yes doctor’.

A. Yes.

It is unnecessary to embellish my decision that the criticism sought to be made concerning this passage was completely misplaced.

It should never be a matter of which sight is lost that an experienced RS, who has undergone medical training including the ways in which to obtain a medical history from their patient, is most unlikely to leave their basic clinical skills behind when they come to perform the MAP. Indeed they are urged not to by the Guidance Notes. The criticism which was levelled at Dr Clifton’s method of eliciting the answers from Mr Mellor, which enabled his diagnosis of chronic bronchitis, was in my judgment entirely misplaced. The reasons for this conclusion appear most clearly from the sequence of the cross-examination of Dr Clifton quoted in full above. Dr Moore-Gillon in his evidence did not seek to make any adverse comment about such a method of history taking.

MICHAEL BENYO

Date of Birth: 18.05.1937

Employment History:

In summary terms, this claimant was employed by the defendants for 31 years and the Third Party for 6 years.

The MAP is to be found at F1, 1-35f and was conducted by Dr Ying Lee on 10 May, 2001.

Claim Valuation: Mr Benyo’s claim was calculated at full value on 25 October 2002 and amounted to £24,229, which following apportionment of 18.41 per cent reduced to £5,588.39, the amount of his award. The elements making up this (apportioned) sum were as follows:

The Third Party challenged both the gross calculation of the award as well as the apportionment exercise. As has already been seen, the Third Party challenged Dr Lee’s MAP and his conclusion in their entirety. The contention was that there was no relevant injury since none of the disability was due to either chronic bronchitis or COPD. In any event, to the extent that this claimant had any requirement for others to perform services for him, this was due to the presence of osteo-arthritis in the left knee and vibration white finger (VWF). The summary of Dr Stenton’s conclusion on lung function tests which were performed at his request were that they showed:

It was Dr Stenton’s opinion that Mr Benyo was suffering from asthma and was equally disabled by cardiac and respiratory disease (asthma). In the Chapter of this Judgment Medical Issues, I have already rejected Dr Stenton’s assessment. It remains to consider the mining issues relating to his case.

The dust calculation in Mr Benyo’s case can be found summarised at A Core p11-12k. This demonstrates that after taking out the year long strike, he worked a total of 35 years. For 15⅛ years no respirator correction required to be made, for the balance of his working life, 19⅛ years attracted the respirator correction (capped). He had been a light smoker for 42 years.

In his work in the headings Mr Benyo was a back up worker whose main job was to carry materials forward to the team which was working at the face. In addition to the tasks of bringing supplies up to the face of the heading, Mr Benyo’s other main occupation was the creation of manholes, either by the use of pneumatic picks or by bore and fire. From time to time, Mr Benyo also assisted the heading team to install arches and muck out either by hand or the use of Eimcos. On some occasions, also, Mr Benyo directed the driver of the heading machine where to cut. This was unquestionably dusty work.

There was evidence from a number of witnesses (Bradbury, Griffiths, McIver, Haynes, Cherry) about conditions at Bentley Colliery. The impression, which I have gained from this evidence, is that it was, in general, a dusty pit where more could and should have been done to reduce dust. There is nothing however, to indicate that it was other than 'average' for the British Coal area to which it had been allocated for the purposes of the schedule 11 calculation.

Harworth Colliery, where Mr Benyo only worked for a period of 10 months, dust conditions were described as having been "high" by a Mr Crabtree, a Cementation supervisor; 10:5:12. This witness also recalled high levels of dust in the Swallow Wood Motorway area of the pit. This heading had gone into stage 1 sanctions on 11 May 1993 an event which led to a high level meeting between British Coal and Davy Mining; see I/19p23. The significant note of the meeting, for present purposes is that of the problems found:

5.

There had been a major change in the geology of the heading with the left hand side being extremely hard.

6.

The cutting head, on examination, had numerous blunt picks. One was missing altogether, and some of the other picks were blunted down to the pick box.

It would seem that the experience on the Swallow Wood Motorway was not typical of the manner in which operations were conducted there. Mr Crabtree did not recall there having been any problem about the supply of sharp picks to the road header.

Mr Crabtree was, however, critical of Contractors when he said (10:27:121):

I think the contractors, they expected you to work in the dust however bad it was, whereas with British Coal you could stop the job and see what was wrong, but the contractors wanted you to keep going [until] you dropped.

This witness was one who at this time used to wear a dust mask during exposure to poor dust conditions. So too did Mr Benyo, except when he was carrying out particularly heavy work. I am satisfied that in his case there is no basis for altering the respirator factor from the way in which it was applied in his IRISC dust calculation.

Because of the impressionistic nature of much of the eyewitness evidence, I do not consider it advantageous or necessary to refer to it in the judgment in any detail, except where expressly mentioned. This observation is equally applicable to the eye witness evidence throughout the case. This is not to denigrate it as a category of evidence, since it was possible to gain an overall feel for what conditions generally had been. The reasons underlying this observation are self evident. But they include its lack of precision, the attitude of some witnesses was stridently against the employment of contractors (whether they had been employed by them or not) and their evidence was coloured accordingly. Much of the evidence was contradictory. Because a large number of witnesses had their evidence read into the proceedings and were not exposed to oral examination it would have been impossible to have attempted to reconcile all the many conflicting points which arose. As I have already indicated in the Chapter on Apportionment, the use to which I am confident that it would be right to put this eyewitness evidence in general is to obtain a ‘feel’ whether conditions in a particular pit at any given time approximated to average conditions.

For the purposes of final submissions on mining evidence both parties made elaborate and full, to the point of being overfull, submissions on the eyewitness evidence. It should not be thought that if I have not referred to those submissions in any detail, I have not reminded myself of the evidence that is available from those sources. For the reasons which I have given, and this should afford no surprise to the parties, I have not considered it advantageous to have covered it in any detail in this already over-long judgment. This observation is intended to be of general application throughout consideration of the individual cases.

In summary, in this case, I have concluded that there are no such special factors as should affect the provisional allocation of tortiousness and responsibility already indicated.

DAVID JAMES BROAD

Date of Birth: 28.08.1938

Employment History:

In summary terms, this claimant was employed by the Defendants for eighteen years and the Third Party for ten.

The MAP is to be found at F1, 41-70f and was conducted by Dr Nabil Jarad on 1 May 2001. The summary of his findings is as follows:

Claim Valuation: Mr Broad’s claim was calculated on 21 October 2002 and amounted to £66,908.64. This figure was reached after apportionment of the general damages by the application of a recoverable proportion of 26.59 per cent. The elements making up this award were as follows:

The Third Party challenged the assessment of 50 per cent disability made by Dr Jarad, basing their submissions on the report of Dr Stenton. The overall assessment was 60 per cent, comprising chronic bronchitis and COPD combined at 20 per cent, asthma 30 per cent and obesity 10 per cent. Since the respiratory disability for the qualifying conditions for an award under the CHA in respect of special damages and future losses, namely 30 per cent, was not reached, the other claims fell away. General damages were also reduced in order to reflect the lower qualifying level of disability. Reliance was also placed on the presence of co-morbid non-respiratory conditions, notably VWF. The supposed relevance of this was that the claims for loss of services past and future were properly attributable to this condition rather than respiratory disability. There is the possibility that that submission could have been correct. But it was not explored in evidence with any of the medical witnesses who gave oral evidence before me. It would be quite wrong for the court to act on bare submission when this is a matter which could and should have been challenged in evidence. On a fifty per cent disability from COPD the claim under this head has the appearance of reasonableness. I reject the Third Party's submissions on this point.

Dr Stenton concluded on the basis of the lung functions test which he had arranged that there was:

As I have already indicated, I prefer the evidence of Dr Jarad to that of Dr Stenton, save to the extent of the under estimate of the asthmatic component by the former. The proportion of overall disability attributable to asthma and obesity has to be adjusted from 20 per cent to 30 per cent, while the figure for overall disability remains at 60 per cent.

This claimant worked exclusively in the South Wales Coalfield. For the majority of his time as an employee of a contractor, he worked at Treforgan. For reasons which will emerge, I am satisfied that conditions in this pit were significantly worse than the average for South Wales. A compelling reason to justify this finding is that there appears to have been a poor exercise of authority by the deputies, who permitted inadequate dust suppression practices on the part of the Contractors. There was dry drilling in stone, on occasions. Coal was always drilled dry and was a prolific source of dust. Attempts were made to suppress dust by the use of hand held water baggings, but this was not effective since the water used to run off the coal or the muck. The headings were often low, which led to the practice of men not withdrawing to a safe distance when firing took place -this was not always carried out by the deputy, but on occasion by the contractors themselves as they were not prepared to wait for him to attend for the purpose - after firing, contractors men frequently returned to the face in advance of the deputy and certainly before the plug of fume and dust had passed by. There was frequent use of Eimcos for the purpose of mucking out, which were never equipped with sprays. There was no evidence of attempts to wet the contents of the bucket before tipping, which was not controlled, in the sense of the bucket being gently lowered before tipping. The notion that it would have been otherwise, when the emphasis from the evidence is of men who were deeply concerned about working so as to achieve maximum bonus was overwhelming. It also seems faintly incredible, as well as inconsistent with the witness M Davies who described how they were throwing (the muck over the top of the Eimco, it was “going bang onto the belt”. There was some evidence that the muck pile would be watered before the Eimco was used to muck out. Again, the effectiveness of this depended on whether the water would enter the pile or not. The evidence was also of poor housekeeping, in that much unnecessary dust was caused during the mucking out process.

It would be a reasonable reflection of conditions in this pit, attributable to the inadequacies of the Contractors’ dust suppression measures, if the responsibility of British Coal is reduced to 50 per cent and the figure of 10 percent is added to the Contractors’ share of responsibility. This means that it becomes thirty five per cent of the whole during this period.

At Nantgarw, the evidence was that wet drilling of stone was the general rule. However there were a number of occasions when blunt picks would be used. The men used them for "as long as possible". There was strong evidence that men used to return to the face of the heading very soon after the shots had been fired. Equally, the evidence in respect of poor housekeeping was particularly powerful. While the water supply was not always as consistent as it should have been, there was evidence that such was the pressure to complete the work in the headings that work would continue whether the supply was adequate or not. Eimcos were equipped with sprays, but these did not by any means remain operational. They were subject to frequent damage in daily use. There was frequent spillage and there was no high priority to clear it up. This was another potent source of dust which falls within the general description of poor housekeeping. Sprays were not universally used on the conveyors except at the point where a contractor's conveyor discharged onto a British Coal conveyor. These too provided unnecessary sources of dust. Mr Broad did not have such a poor view of the conditions where he was working as did some of the other witnesses - Boyles, Prosser, Forrest. It was his view that Nantgarw was a "dampish sort of pit". There were occasions when not only overtime was worked, but also back to back shifts. This form of working influences the total dust burden of the individual. During this period, there is no reason to believe that conditions were any worse than the South Wales average, which was among the top three areas in the country; see Schedule 11.

In the next period of his employment, Mr Broad worked at Penallta. For the first year, or so, he worked on shaft extensions, where the evidence was that conditions were reasonable. In the final five years, Mr Broad was back in headings. Loading out was by means of a slusher and Eimco which had no known means of water suppression and was, by common consent a dusty operation. He described the conditions as having been "pretty bad … not good, it was medium". Given that for the first year or so conditions were reasonably good, a fair assessment is that over the full period at this pit, average conditions for South Wales obtained.

GERALD BROWN

Date of Birth: 25.08.1938

Employment History:

The MAP is to be found atF1, 76-195h and was carried out by Dr Nigel Cooke on 8 June 2001. The summary of his findings was:

Claim Valuation: Mr Brown ‘s claim was calculated on 21 October 2002 and amounted to £29,933 which, following apportionment of 18.33 per cent, reduced to £9,169.03 the amount of his award. The elements making up this (apportioned) sum were as follows:

The past losses were in respect of pension loss and the need for services. The future losses comprised services, nursing and mobility. For the full details of the calculation see A core p35. A respirator factor was applied in this case for a period of 19.5 years, but subject to progressive cap reduced to 16.48 per cent. There is an issue whether Mr Brown, even if he had been urged to wear a dust mask would ever have done so. His oral evidence was to the effect that he chewed tobacco, which was a habit that made it necessary for him to spit from time to time. This would have made the wearing of a respirator impracticable. So it was argued that it was inappropriate for respirator correction to have been applied in his case. In his evidence, Mr Brown was adamant that he would never have worn a respirator even if he had been urged to do so. While it would be foolhardy not to respect this stated position, in my judgment, however, it should not be taken at face value. As the history of respirator usage has demonstrated, not only in this litigation but also in Griffiths, it was possible for this reluctance to use a respirator to be overcome by the use of persuasion and education. In re-examination, Mr Brown gave some revealing answers on this topic (9:107:25)

Q. But if Mr Brown, your employers had said to you, "Look Mr Brown, there are times when it is very dusty. During those times, try to wear a mask", might you have done that, if they had put it that way?

A.

I do not think so, no.

Q.

If the had told you at that at times, when it is very dusty, you were in danger of having lung damage and that just for those times it would be a good idea to wear a mask, if they had put that to you, would that have made a difference?

A.

Well, it did not happen, like, so I do not know. I mean, I also say there has been dust masks but with chewing, you just cannot do it. You Know.

I have not been persuaded that Mr Brown , if given the appropriate education and regime, would never have worn a respirator. In my judgment, there was a good chance that his reluctance would have finally been overcome and that for a period of ten years before the cut-off date of 1984, he would have worn a suitable dust mask. The respirator factor in his case should be adjusted accordingly.

The Third Party challenged the assessment of the extent of disablement from COPD, proposing that it should be only 20 per cent. The Third Party also contended that VWF would have made Mr Brown dependent on services in any event. If allowances were made to reflect these factors, the result would be that only the sum of £4,164.60 was recoverable. Dr Stenton concluded on the basis of the lung function tests which he had arranged there was:

Airflow obstruction (reduced FEV1/FVC) with no substantial response to bronchodilator, gas transfer that is towards the lower end of the normal range, and lung volumes that are towards the upper end of the normal range. They are typical of mild COPD.

Dr Stenton concluded his report by saying that Mr Brown:

Reports that he is able to manage (quite a lot of walking in his job) without any marked problems. He can climb stairs without stopping though with some breathlessness, and he feels breathless when walking up hills. I would describe this as representing a respiratory disability in the region of 10-20%.

In the previous Chapter, I have already given reasons why Dr Stenton's opinion has to be rejected. Insofar as the argument on VWF was concerned, here too there was an absence of any challenge to the evidence given by Dr Cooke as to the assessment of disability by reliance on the presence of VWF. Furthermore, Mr Brown's evidence was that the trouble, which he suffered in relation to this condition, was periodic in nature and only affected him in cold weather. There was no basis for the contention that a condition of this kind should have been included in the MAP, as a co-morbid non-respiratory condition that impacted on overall disability. It was well within the region of a reasonable MAP report for it not to have been included. There is no basis, on this account, why to the award should not stand as a reasonable estimate of Mr Brown’s damages.

Mr Brown worked for British Coal for a period of eighteen years and for Contractors for 23 years. It is not surprising, then, that there were a large number of witnesses whose evidence is before the Court in relation to his case. It can be seen, from the chart of his employment by Contractors, that a substantial part of his employment was spent in bore and fire headings. The evidence in relation to excess dust can be summarised as having been: excessive dry drilling, inadequate provision and maintenance of ventilation ducting (especially during the period of seven years at Wheldale), the use of Dosco road heading machines in strata for which they were unsuitable with inadequate water suppression, the use of jigger picks without water suppression, the use of Eimcos for loading out without working sprays. There was also evidence that there was frequently an early return to the face after shotfiring, which the deputies did nothing to prevent. A Mr Liversidge worked with Mr Brown at Wheldale and Silverwood. He confirmed that dust levels were high and uncomfortable when mucking out, whether by hand or the use of Eimcos. Another witness, Mr Roper, also worked at Silverwood. He described heavy dust during drilling and the use of slushers while mucking out. At Wistow, where Mr Brown spent the last seven years as a miner, conditions are known to have been poor. In Dr Ford's paper V1/4 p21 in the period October to December 1990 in the J31X, routine samples showed dust levels at 8.1 and quartz 0.74 mg/m³. This was in a heading in which it is known that Amco were operating; see M6 p280. So also at Wistow, in the Main south Return and the B South Trunk in the same period readings of 15.7, 3.2, 5.2 and 0.35 respectively were taken; see M49 p113 and M37. Again, this covered a period when it is known that Mr Brown was working in that pit, albeit he may not have been working in the relevant heading.

Other witnesses whose evidence has been considered are Mr Ashman, who was employed by Thyssen at Kellingley, Mr Kelly at Houghton Main, Mr Haynes at Grimethorpe, Mr Healey who worked at Wheldale and Bulcliffe Wood. If a name has not been included in the above, it is not because the evidence has not been considered, but because there is nothing that they can usefully add to the general picture which has emerged in regard to Mr Brown's working conditions. These I find to have been in line generally with those in the areas covered by the table in Schedule 11.

ROBERT DAVID ELLIS

Date of Birth: 14.09.40

Employment History: