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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Angus v National Coal Board [1955] ScotCS CSIH_1 (09 February 1955)
URL: http://www.bailii.org/scot/cases/ScotCS/1955/1955_SC_175.html
Cite as: 1955 SC 175, [1955] ScotCS CSIH_1, 1955 SLT 245

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JISCBAILII_CASE_SCOT_MINING

09 February 1955

Angus
v.
National Coal Board

LORD STRACHAN'S OPINION.—The deceased, John Wilson Angus, died on 28th September 1950 as a result of an accident which was due to subsidence in a field on the farm of Bowhouse, near West Wemyss, Fife. The deceased was an agricultural contractor and had been instructed by the farmer to spray the field with acid. For that work he used a tractor. It is averred that, as he was driving the tractor over the field, the ground over which he was travelling suddenly gave way and fell a distance of about eight feet. The tractor fell with the ground, and the deceased was trapped underneath it and was asphyxiated.

Underneath the point where the accident happened there were certain coal workings from which, according to the pursuer's averments, coal had been extracted about the years 1838, 1921 and 1942. The pursuer's case is that the subsidence in the field was caused by the negligence of the Wemyss Coal Company and that the liability for that negligence is now enforceable against the National Coal Board by virtue of section 48(1)(a)of the Coal Industry Nationalisation Act, 1946. The pursuer now sues the National Coal Board for damages, and she sues both as an individual and as tutrix-in-law of the deceased's pupil child.

The main question in the case is whether or not section 48(1)(a) of the statute applies to a liability of the kind which is averred. The Coal Board maintains that the section is not applicable and that the action is therefore irrelevant and should be dismissed. The pursuer on the other hand contends that a relevant ground of liability has been averred. A proposed issue for the trial of the case before a jury was lodged in process, but at the hearing on the Debate Roll counsel for the pursuer departed from the proposal that there should be a jury trial and moved that a proof be allowed.

[His Lordship quoted section 48(1)(a), and continued]—That statutory provision is the sole ground upon which the pursuer seeks to bring home liability to the National Coal Board in this action. It is therefore crucial to her case to show that the section is applicable. In order to do so the pursuer must, in my opinion, (1)relevantly aver facts and circumstances which apart from the foregoing section would render the Wemyss Coal Company liable to the pursuer in damages in respect of the death of the deceased, and (2)show that that Liability was a liability for a breach of a right of support. It is thus important in the first place to note the nature of the liability which the pursuer now seeks to enforce.

The facts and circumstances which the pursuer has averred may be briefly summarised as follows. Underneath the field in which the accident happened there was, near the surface, the Wemyss Parrot Coal Seam, in which there were old workings which had ceased in 1838. The extraction of coal from these old workings had been by the stoop and room method. The support for the surface thereby left would have been adequate if undisturbed by subsequent workings in underlying seams. The Wemyss Coal Company, however, extracted the Dysart Main Coal Seam at a depth of 640 feet in 1921 and the Sandwell Coal Seam at a depth of 400 feet in 1942. Both of those later workings were by the long wall method of total extraction. It is averred that the extraction of those two seams caused considerable subsidence and fracture of the overlying strata, and left the roof of the old roads or rooms in the Wemyss Parrot Coal in such a state of suspension that any extra weight on the surface would be liable to cause complete collapse. The pursuer avers that, when the weight of the tractor which the deceased was driving was brought to bear on the surface, the ground subsided because of the fact that the surface was inadequately supported.

The liability which is alleged against the Wemyss Coal Company is, as I have said, a liability for negligence. No other ground of liability is suggested. The averments of fault on the part of that company are set forth in condescendence 4, to which I refer. Briefly put, the case of negligence is that the company knew, or ought to have known, that, as a result of their workings in the Dysart Main Coal and in the Sand-well Coal, subsidence of the surface was likely to occur at any time, especially if any weight was brought to bear upon it; that they knew or ought to have known that from time to time the surface at the place in question "was likely to be used by farm workers and farm machinery and by the farmer's invitees, such as the deceased"; that hi those circumstances it was the duty of the company not to extract the coal from the said two seams below the Parrot workings so as to expose "said person" to the risk of sudden injury; and that in those duties the company failed and so caused the accident.

I shall assume, but I am not to be taken as deciding, that the pursuer has relevantly averred negligence upon the part of the Wemyss Coal Company. I am, however, quite definitely of opinion that there is no averment at all of a right of support or of a breach of a right of support, and no relevant averment of a liability to which the Wemyss Coal Company would be subject for a breach of a right of support. The pursuer's case simply assumes that a failure to take due care to avoid personal injury to someone on the surface by subsidence is a breach of a right of support. In my opinion, that is a fallacy. The phrase "rights of support" as it occurs in section 48(1)(a)in the statute must, I think, be given the meaning which is ordinarily attributed to those words in law. At common law a right of support is a right to the support of land or buildings by land or buildings, and it is a right which is vested in the owner of the surface as a natural incident of his ownership of the surface. If any authority is needed for those propositions, it will be found in Rankine on Land-Ownership, (4th ed.) at pp. 488 et seq., in the chapter headed "Support of Lands and Houses-Surface Damages," and in the article on "Support" by Lord Carmont in Green's Encyclopaedia, vol. xiv. By contract or statute a right of support might conceivably be constituted in someone other than the owner of the surface, for example, in connexion with the support of such things as sewers or gas pipes, and it may be—I say no more—that liability for breach of such contractual or statutory rights would fall under section 48 (1)(a). The support of such things in the soil seems to me to be analogous to the support of buildings on the surface. I am not, therefore, disposed to go so far as to accept an argument which was addressed to me by counsel for the National Coal Board to the effect that section 48 (1) (a) deals solely with rights of the owner of the surface, and it is in this case unnecessary for me so to decide. But I am of opinion that it would be an entirely novel conception to say that an invitee of the tenant of the surface has a right of support against a mining company, meaning thereby a right to have himself and his vehicle supported as he moves about the surface. Counsel for the pursuer argued that the right of the owner of the surface was a right to enjoy his property and therefore included a right to cultivate the surface. It was said that his right of support must therefore include a derivative right of support for all those whom he invites on to his land in order to cultivate it. I was not, however, referred to any decided case or any text-book where the words "right of support" were used in any such derivative sense.

In appropriate circumstances a person such as the deceased may have a right to claim damages for personal injury caused by subsidence where the injury can be said to be due to negligence, that is, where it can be said that there was on the part of those conducting mining operations a duty to take due care for the safety of the person concerned and a failure in that duty. But such a right depends on the ordinary principles of the law of negligence and is not a right of support as that term is ordinarily used in law. I see no warrant for giving to. the words "right of support" as they occur in section 48 (1) (a) such an unusual and novel meaning as that for which the pursuer contends. Had it been the intention of Parliament that claims which are based solely on negligence were to be enforceable against the National Coal Board, the statute would, in my opinion, have said so expressly.

Counsel for the pursuer founded strongly upon M'Cormick v. Fife Coal Co ., 1931 S. C. 19. The claim in that case, however, was treated by the Court as one which was founded on negligence, and, in my opinion, the decision has no bearing on the question as to what is a right of support. It may be that M'Cormick would be an authority in the pursuer's favour in a claim against the Wemyss Coal Company, but the case does not assist the pursuer at all on the question whether any liability which may have rested on the Wemyss Coal Company is now enforceable against the National Coal Board by virtue of section 48 (1) (a).

For the foregoing reasons I am of opinion that the pursuer has not relevantly averred that the alleged liability of the Wemyss Coal Company was a liability for a breach of a right of support. She has therefore not brought this case within the statutory provisions by which alone the alleged liability could be made enforceable against the defenders. I shall, therefore, sustain the first and second pleas in law for the defenders and shall dismiss the action.

In view of the decision which I have reached it is unnecessary for me to deal with an argument, addressed to me by counsel for the defenders, to the effect that there is no relevant case of negligence averred against the Wemyss Coal Company.

The pursuer reclaimed, and the case was heard before the Second Division (without Lord Patrick) on 4th and 9th February 1955.

LORD JUSTICE-CLERK (Thomson).—This case arises out of a very unfortunate accident which happened to an agricultural contractor, who was working a tractor on behalf of a tenant farmer. While he was so doing, the land on which he was working subsided, and he sustained injuries from which he died. In these circumstances the widow and child raise this action against the Coal Board on the view (first) that the Wemyss Coal Company, who formerly worked the coal underneath the land, were negligent in their method of working and therefore were responsible for bringing down the surface, and (second) that section 48 of the Coal Industry Nationalisation Act, 1946, transfers to the Coal Board liability for the negligence of the Wemyss Coal Company. I am going to assume in the pursuer's favour—although I am not impressed by the pursuer's averments—that a relevant case of negligence has been made, so that the point with which I shall deal is whether on a sound construction of section 48 of the Coal Industry Nationalisation Act, 1946, the Board is made liable.

[His Lordship quoted section 48 (1) (a), and continued]—The pursuer must therefore make relevant averments that the liability which she alleges against the colliery concern is one for breach of a right of support. The pursuer's case depends on the proposition that, if, by negligently letting the surface down, a colliery concern injures somebody on the land, that concern is in breach of a right of support. That proposition is one which the pursuer has been unable to justify. The argument seems to spring from some kind of idea that negligence is at the bottom of the conception of a breach of right of support, or, at any rate, that section 48 has had the effect of importing negligence into the conception of a breach of a right of support. It seems to me, however, that right of support, as such, has nothing to do with negligence.

The right of support is an incident of property, and here we are dealing with the simple case of agricultural land with no complications through the erection of buildings. The owner, in virtue of his ownership, has the right to have his land left in its natural state, and he enjoys that right qua owner. If the owner's right of support is breached, he becomes entitled to damages for surface damage without requiring to establish negligence. This brings out that it is the property alone which is affected, and that it is only in so far as it is affected that the owner has a remedy. Section 48 transfers to the Board liabilities to which colliery concerns would be subject for breach of support, and then goes on to make clear that the breaches are such as arise from acts or omissions done or occurring in the course of colliery activities. It was argued that these words showed that the conception of a right of support has been widened to include causes of action arising from negligence, but I am quite satisfied that there is no justification for that view. This exegesis does no more than make clear that it is only breaches caused by colliery concerns which are being transferred to the Board and it is for these that the Board is to accept responsibility. Some sort of explanatory words were called for in order to limit and define the sort of liabilities for breaches of right of support which the Board was to take over. But the words "acts or omissions done or occurring in the course of colliery activities" carry no necessary implication of negligence.

I can see no ground for giving to the words "right of support" this extended meaning. The other subsections in section 48 give no countenance to the idea that there is such an extended meaning. Indeed they seem to me to bear out that the section is confined to support in its ordinary sense. I would only add that an innovation of the sort contended for would have been capable of precise statement in the Act, had that been the intention of Parliament, and need not have been left to dubious implication. The result is that the pursuer, even on the assumption that she has relevantly averred negligence against the Wemyss Coal Company, has made no relevant averments that such a liability is a breach of a right of support and consequently one which is transmitted to the Board.

Accordingly, I suggest to your Lordships that we refuse the reclaiming motion and adhere to the view of the Lord Ordinary, who deals admirably with the whole matter.

LORD MACKINTOSH .—I agree with your Lordship. For my part I am quite satisfied with the way in which the Lord Ordinary has dealt with the matter. I agree that a "right of support" is a well recognised nomen juris in our law, and we must construe section 48 of the 1946 Act accordingly. A right of support is an incident of the ownership of land and entitles the owner of the surface to such support for his land from the adjacent or subjacent soil as shall he sufficient to retain it in its natural state. If that right be breached, the surface owner would at common law have a claim against the author of the breach to have his surface restored or to get compensation for the surface damage. This liability to the surface owner arises independently of any negligence and simply because the right to which he was entitled, namely, to have his land supported and maintained in its natural state, has been interfered with. The liability, however, is owed only to the landowner, because he alone had as an incident of his property the right to have it supported. It is this liability to the land or surface owner which, in my opinion, alone is transferred against the National Coal Board by section 48 (1) (a) of the Act in cases where the liability arose because of something done or omitted to be done in the course of colliery activities. Section 48 (1) (a) was no doubt put into the Act because the breach of the landowner's right of support may well occur long after the operations of the colliery company responsible for them have ceased, and the purpose which this subsection of the Act, in my opinion, was meant to serve is simply to ensure that the landowner would in that case be able to get the compensation for the damage to his property out of the National Coal Board, just as he would have been able to get it out of the coal company if the coal company was still in existence and was still operating in the area when the interference with his right of support occurred. On the whole matter I am quite satisfied that the case is irrelevant and was properly dismissed by the Lord Ordinary.

LORD BIRNAM .—I agree. The common law right of support is an incident of property and is a right of support to land. No doubt such a right may be infringed either by the ordinary working of minerals without negligence or by the negligent working of minerals. But, whatever be the infringement, it is the right of support to land which is in question, and it is only the liability for an infringement of that right which seems to me to be transferred by the Act of Parliament to the Coal Board. I may add that, had I been of a different opinion, my own view is that the averments of negligence against the Wemyss Coal Company are lacking altogether in relevance, and on that ground by itself I would have been prepared to dismiss the action.

[1955] SC 175

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


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URL: http://www.bailii.org/scot/cases/ScotCS/1955/1955_SC_175.html