Case No: 7LS50038
Neutral Citation Number: [2011] EWHC 11 (QB).
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
LEEDS DISTRICT REGISTRY
Miners Knee Group Litigation
Leeds Combined Court
The Courthouse
1 Oxford Row
Leeds LS1 3BG
Date: 10th January 2010
Before:
HIS HONOUR JUDGE S P GRENFELL
--------------------Between:
DAVIES & OTHERS
- and THE SECRETARY OF STATE FOR ENERGY & CLIMATE
CHANGE
(As Successor in Title to the Liabilities of THE BRITISH COAL
CORPORATION)
Claimants
Defendant
----------------------------------------Mr David Allan QC and Mr Ivan Bowley (instructed by Hugh James, Irwin Mitchell,
Graysons and Thompsons) for the claimants
Mr Robert Jay QC, Mr Andrew Kinnier and Ms Catherine Brown (instructed by Nabarro
LLP) for the defendant
Hearing dates: 28-30 June, 5-13, 22-23 July 2010, supplemental written submissions 29
November 2010
---------------------
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this
Judgment and that copies of this version as handed down may be treated as authentic.
.............................
His Honour Judge S P Grenfell
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
His Honour Judge Grenfell:
1.
A large number of claims have been brought by way of a group litigation order against
the Government Department (“the Department”) that has succeeded to the liabilities of
the former National Coal Board (“NCB”), latterly British Coal Corporation (“BCC”),
on behalf of retired or deceased mineworkers in respect of personal injury to their
knees as a result of working underground. The claims have been restricted to knee
osteoarthritis resulting from repeated minor trips, stumbles, falls, knocks, working and
crawling on knees and heavy lifting imposing stresses on the knees. The claims in
effect cover the whole of each man’s career underground and exclude consideration of
specific accidents in which the claimant may have sustained traumatic injury. The
condition known as ‘beat knee’, from which mineworkers tended to suffer and which
was a relatively temporary condition, has been specifically excluded from these
claims.
2.
The Department raised the defence of limitation in its Generic Defence.
3.
I ordered that the following preliminary issue be tried: as to whether:
a)
In relation to Claimants who fulfil the GLO entry criteria, what
is their “date of knowledge” for the purposes of section 14 of the
Limitation Act 1980 (“the Act”); and
b)
In relation to Claimants whose “date of knowledge” for the
purposes of section 14 has expired, should the Court exercise its
discretion to disapply the primary limitation period for the purposes of
section 33 of that Act? More specifically, what are the factors which
should guide the exercise of the Court’s discretion in individual cases
having regard to the range and nature of the registered cases within the
group?
4.
I heard the evidence during the summer with written and oral submissions concluding
on the 23rd July. It was agreed with counsel then that I should defer giving my
judgment in this case until after the Court of Appeal had delivered judgment in the
‘Atomic Veterans Litigation’, after which each side would submit further written
submissions. That judgment was handed down on the 22nd November. I am grateful
to all counsel for their prompt further submissions. It was also agreed that I should
first submit this judgment in draft for the consideration of editorial corrections.
5.
In each of the cases it is impossible to determine with any degree of precision when
the knee osteoarthritis was actually caused, simply because it is the kind of condition
that develops over many years of minor trauma1 and stresses to the knee. What can be
determined in each lead claimant’s case is when his osteoarthritis was first diagnosed.
It follows that the date of knowledge on the part of each claimant has to be
determined. If that was more than 3 years before the issue of proceedings, then the
1
I use the word to include the plural in common parlance.
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
discretion provided by section 33 of the Act whether or not to disapply section 11 of
the Act has to be considered.
6.
What has emerged in the examination of the 8 lead claimants’ cases is that all but 2
clearly had sufficient knowledge within section 14(1) of the Act and therefore, their
cases are statute barred, unless the discretion under section 33 of the Act is exercised
in their favour. The dates of knowledge of Messrs Smith and Bell are not agreed, but
still bring them outside the limitation period. Their dates have relevance in
determining the degree of post date of knowledge delay.
7.
In respect of the 2 cases of Messrs Lewis and Hughes, I need to consider the law in
relation to the interpretation of section 14 of the Act. In respect of the cases which are
barred by the operation of section 14 I have to consider how the law in relation to the
exercise of the section 33 discretion has developed; how to apply the criteria set out in
section 33(3) of the Act.
8.
It is the Department’s case that each of the lead claimants’ cases falls to be considered
under section 33; that this trial in essence is about the exercise of that discretion in
these individual cases in order to determine how that might dictate the management of
the remaining claims within the Group.
9.
Section 11(4) of the Act sets the relevant limitation period for claims in respect of
personal injuries at 3 years from (a) the date on which the cause of action accrued or
(b) the date of knowledge (if later) of the person injured.
10.
Section 14 (as amended) relevantly provides:
“ (1) … in section 11 … of this Act references to a person's date
of knowledge are references to the date on which he first had
knowledge of the following facts—
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the act
or omission which is alleged to constitute negligence, nuisance
or breach of duty … and knowledge that any acts or omissions
did or did not, as a matter of law, involve negligence, nuisance
or breach of duty is irrelevant.”
“(3) For the purposes of this section a person's knowledge
includes knowledge which he might reasonably have been
expected to acquire—
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or
other appropriate expert advice which it is reasonable for him to
seek;
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
but a person shall not be fixed under this subsection with
knowledge of a fact ascertainable only with the help of expert
advice so long as he has taken all reasonable steps to obtain
(and, where appropriate, to act on) that advice.”
11.
Section 33 provides:
“(1) If it appears to the court that it would be equitable to allow
an action to proceed having regard to the degree to which— (a)
the provisions of sections 11 or 11A or 12 of this Act prejudice
the [claimant] or any person whom he represents; and (b) any
decision of the court under this subsection would prejudice the
defendant or any person whom he represents; the court may
direct that those provisions shall not apply to the action, or shall
not apply to any specified cause of action to which the action
relates.”
12.
Section 33(3) directs the exercise of the discretion:
“In acting under this section the court shall have regard to all
the circumstances of the case and in particular to—
(a) the length of, and the reasons for, the delay on the part of the
[claimant];
(b) the extent to which, having regard to the delay, the evidence
adduced or likely to be adduced by the [claimant] or the
defendant is or is likely to be less cogent than if the action had
been brought within the time allowed by section 11, by section
11A or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action arose,
including the extent (if any) to which he responded to requests
reasonably made by the [claimant] for information or inspection
for the purpose of ascertaining facts which were or might be
relevant to the [claimant's] cause of action against the
defendant;
(d) the duration of any disability of the [claimant] arising after
the date of the accrual of the cause of action;
(e) the extent to which the [claimant] acted promptly and
reasonably once he knew whether or not the act or omission of
the defendant, to which the injury was attributable, might be
capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the [claimant] to obtain medical,
legal or other expert advice and the nature of any such advice
he may have received.”
Miners’ knee group litigation 7LS50038
His Honour Judge S P Grenfell
Approved Judgment
13.
The following table is a helpful illustration of the relevant dates for which the
Department contends:
Lead Claimant
Date of
Knowledge
(defendant)
Date of Claim
Date of
Knowledge
(claimants)
Ceiriog Lewis
1989
7th October 2008
2007
within time
Terence
Hathaway
1986
10th October 2008
1986
agreed
David Hughes
1990
10th October 2008
2007
within time
Victor Smith
1987
7th October 2008
2003
agreed out of time
Harold Hickin
1995
7th October 2008
1995
agreed
John Bell
1990
7th October 2008
2001
agreed out of time
Brian
Thompson
1993
7th October 2008
1993
agreed
William
Davison
1984
7th October 2008
1984
agreed
14.
It is said so far as Messrs Lewis and Hughes are concerned that, whilst they believed
that in general terms their working conditions were responsible for their knee
osteoarthritis, they were in effect ‘barking up the wrong tree’, notably because each
believed that the wet conditions in their Pit were responsible for the osteoarthritis.
There are other features specific to each of these claimants which I shall examine
further, but this sets the scene for a consideration of the authorities.
15.
The law in relation to what amounts to a significant injury for the purposes of section
14(1)(a) and 14(2) is uncontroversial. Insofar as further interpretation of the words of
that subsection has become necessary Lord Hoffman supplied it in A v Hoare and
others [2008] 1 AC 844 at 860 paragraphs 34 and 35:
“34
I respectfully think that the notion of the test being
partly objective and partly subjective is somewhat confusing.
Section 14(2) is a test for what counts as a significant injury.
The material to which that test applies is generally “subjective”
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
in the sense that it is applied to what the claimant knows of his
injury rather than the injury as it actually was. Even then, his
knowledge may have to be supplemented with imputed
“objective” knowledge under section 14(3). But the test itself is
an entirely impersonal standard: not whether the claimant
himself would have considered the injury sufficiently serious to
justify proceedings but whether he would “reasonably” have
done so. You ask what the claimant knew about the injury he
had suffered, you add any knowledge about the injury which
may be imputed to him under section 14(3) and you then ask
whether a reasonable person with that knowledge would have
considered the injury sufficiently serious to justify his
instituting proceedings for damages against a defendant who
did not dispute liability and was able to satisfy a judgment.
“35
It follows that I cannot accept that one must consider
whether someone “with [the] plaintiff's intelligence” would
have been reasonable if he did not regard the injury as
sufficiently serious. That seems to me to destroy the effect of
the word “reasonably”. Judges should not have to grapple with
the notion of the reasonable unintelligent person. Once you
have ascertained what the claimant knew and what he should be
treated as having known, the actual claimant drops out of the
picture. Section 14(2) is, after all, simply a standard of the
seriousness of the injury and nothing more. Standards are in
their nature impersonal and do not vary with the person to
whom they are applied.”
16.
In Ministry of Defence v AB & ors [2010] EWCA Civ 1317 (the ‘Atomic Veterans
Litigation’ (‘AVL’)) at paragraph 80 of the judgment of the court the following
passage adds the following, which is of relevance to the present litigation:
“This is not contentious. The test is an objective one: see A v
Hoare [2008] AC 844. If a claimant reasonably regarded the
condition from which he knew he was suffering as ‘not worth
bothering about’ he will not be held to have knowledge of a
significant injury: see Dobbie v Medway Health Authority
[1994] 1 WLR 1234.”
17.
I hasten to add that in the present litigation I am dealing with intelligent men, but that
passage avoids the danger of applying more than the test of what a reasonable man
would do in the circumstances. Nevertheless, the time at which a reasonable man
would have considered the injury sufficiently serious is of particular importance most
notably in the cases of Messrs Lewis, Hughes, Smith and Bell.
His Honour Judge S P Grenfell
Approved Judgment
18.
Miners’ knee group litigation 7LS50038
I accept, as do counsel for the Department, the following summary of the law2 as to
the approach to be adopted in determining the date of knowledge in the circumstances
applicable to this litigation:
“In relation to the lead cases and the allegations of negligence
and breach of statutory duty ... the question should be when did
each claimant have actual knowledge of a real possibility that
his chronic knee condition was caused by the activities and
conditions of work set out at paragraph 6.1 of the generic
Statement of Case and the actions of British Coal in failing to
eliminate or alleviate such activities and working conditions. In
accordance with the third principle in Spargo3, a firm belief on
the part of a claimant in respect of the above matters would
constitute actual knowledge. However, in accordance with the
fourth principle, if a claimant merely has a vague or general
notion of a connection with his work or thinks that his knee
condition may be capable of being attributed to the act or
omission alleged to constitute negligence but is not sure and
would need confirmation from an expert, then a claimant would
not have the requisite knowledge within the meaning of section
14(1)(b)”.
19.
The principles are set out in the judgment of Brooke LJ at p 241:
“This branch of the law is already so grossly over-loaded with
reported cases, a great many of which have been shown to us or
cited by counsel, that I see no reason to add to the overload by
citation from earlier decisions. I have considered the judgments
of this court in Halford v Brooks [1991] 1 WLR 443; Nash v
Eli Lilley & Co [1993] 1 WLR 782; Broadley v Guy Clapham
[1993] 4 All ER 439; Dobbie v Medway Health Authority
[1994] 1 WLR 1234; Smith v Lancashire Health Authority
[1995] PIQR 514; and Forbes v Wandsworth Health Authority
[1996] 7 Med LR 175. From these decisions I draw the
following principles:
“(1) The knowledge required to satisfy section 14(1)(b) is a
broad knowledge of the essence of the causally relevant act or
omission to which the injury is attributable;
“(2) “Attributable” in this context means “capable of being
attributed to”, in the sense of being a real possibility;
“(3) A plaintiff has the requisite knowledge when she knows
enough to make it reasonable for her to begin to investigate
whether or not she has a case against the defendant. Another
way of putting this is to say that she will have such knowledge
if she so firmly believes that her condition is capable of being
2
3
paragraph 13 of the claimants’ counsel’s skeleton argument.
Spargo v North Essex District Health Authority [1997] PIQR 235
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
attributed to an act or omission which she can identify (in broad
terms) that she goes to a solicitor to seek advice about making a
claim for compensation;
“(4) On the other hand she will not have the requisite
knowledge if she thinks she knows the acts or omissions she
should investigate but in fact is barking up the wrong tree: or if
her knowledge of what the defendant did or did not do is so
vague or general that she cannot fairly be expected to know
what she should investigate; or if her state of mind is such that
she thinks her condition is capable of being attributed to the act
or omission alleged to constitute negligence, but she is not sure
about this, and would need to check with an expert before she
could be properly said to know that it was.”
20.
These principles have received some recent attention in the cases of Adams v
Bracknell Forest Borough Council [2005] 1 AC 76, particularly in Lord Hoffman’s
discussion between paragraphs 42 and 47 of his speech and the discussion by Dyson
LJ (as he then was) of that passage in Whiston v London Strategic Health Authority
[2010] 1 WLR 1582. The only element of controversy before me has been as to the
provenance of these passages and, therefore, the effect they should have on my
approach to the issue of section 14 knowledge.
21.
The particular passage to which the arguments before me have been addressed is at
paragraph 47 of Lord Hoffman’s speech in Adams at p 90:
“47 It is true that the [claimant] must be assumed to be a person
who has suffered the injury in question and not some other
person. But, like Roch LJ in Forbes [1997] QB 402, 425 I do
not see how his particular character or intelligence can be
relevant. In my opinion, section 14(3) requires one to assume
that a person who is aware that he has suffered a personal
injury, serious enough to be something about which he would
go and see a solicitor if he knew he had a claim, will be
sufficiently curious about the causes of the injury to seek
whatever expert advice is appropriate.”
22.
Dyson LJ discussed this paragraph from paragraph 50 and following of his judgment
in Whiston:
“50
Lord Hoffmann then went on to consider constructive
knowledge on the facts of the case under appeal. At para 51, he
said: “In my opinion, there is no reason why the normal
expectation that a person suffering from a significant injury will
be curious about its origins should not also apply to dyslexics.”
“51
Before I discuss para 47, I need to refer to the speeches
of the other members of the House. Lord Phillips of Worth
Matravers said, at paras 57– 58:
Miners’ knee group litigation 7LS50038
His Honour Judge S P Grenfell
Approved Judgment
“57. … I agree, for the reasons given by my noble and
learned friend, Lord Hoffmann that this appeal should
be allowed. I have reached that conclusion regardless of
the precise test for ‘constructive knowledge’ laid down
by section 14(3) of the 1980 Act. It will be a rare case
where the result turns on the true construction of that
subsection and this is not such a case. None the less I
share the conclusion of Lord Hoffmann as to the correct
test for the reasons that he gives.
“58. I would add that the test of what is reasonable is
one which is a recurrent motif in the provisions of the
1980 Act and some, at least, of those provisions suggest
that the test of what is reasonable is an objective test
which applies the standards of the reasonable man.”
“52
Lord Scott of Foscote said, at para 71:
“As to the second issue, the proper approach to section
14(3) of the 1980 Act, I, like my noble and learned
friend, Lord Hoffmann, prefer the reasoning of StuartSmith and Evans LJJ in Forbes v Wandsworth Health
Authority [1997] QB 402 to that to be found in Nash v
Eli Lilly & Co [1993] 1 WLR 782 . The reference in
section 14(3) to ‘knowledge which he might reasonably
have been expected to acquire’ should, in my opinion,
be taken to be a reference to knowledge which a person
in the situation of the claimant, ie an adult who knows
he is illiterate, could reasonably be expected to acquire.
Personal characteristics such as shyness and
embarrassment, which may have inhibited the claimant
from seeking advice about his illiteracy problems but
which would not be expected to have inhibited others
with a like disability, should be left out of the equation.
It is the norms of behaviour of persons in the situation
of the claimant that should be the test.”
“53
Lord Walker of Gestingthorpe said, at para 76, that he
agreed with Lord Hoffmann that it was no longer possible to
state roundly, as Lord Reid had done, that the test is subjective.
But the test was not entirely objective either. At para 78, he said
that he would be cautious about “any simple formula put
forward to cover every case which might occur”. Baroness Hale
of Richmond adopted a somewhat different approach and said,
at para 91, that she would not want to rule out that the personal
characteristics of a claimant might be relevant if they affect his
or her ability to acquire information.
“54
In my judgment, the ratio of the Adams case is that
section 14(3) requires an objective test to be applied. It was
accurately summarised by Eady J at paras 10 and 36 of his
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
judgment. The importance of the Adams case is that it settled
the difference between the objective (or mainly objective) test
applied in the Forbes case [1997] QB 402 and the subjective
test enunciated in the earlier cases to which I have referred in
favour of the former. That was the test to which Lord Phillips
was referring. Lord Scott said in terms that, like Lord
Hoffmann, he preferred the reasoning in the Forbes case to that
in Nash's case [1993] 1 WLR 782 and said that the approach to
constructive knowledge should be “mainly objective”. Lord
Walker agreed that the subjective test could no longer be
supported and that the courts had moved to a “more objective
approach”.
“55
None of the other members of the House explicitly
referred to or endorsed what Lord Hoffmann said [2005] 1 AC
76, para 47. In my judgment, it does not form part of the ratio
of the Adams case. It may be that Lord Walker was referring to
para 47 of Lord Hoffmann's speech when he said, at para 78,
that he would be cautious about any “simple formula put
forward to cover every case which might occur”. The
apparently absolute language of para 47 does appear to lay
down a formula to cover every case. But I doubt whether Lord
Hoffmann intended to be so prescriptive. As we have seen, at
para 51 he said that there was no reason “why the normal
expectation that a person suffering from a significant injury will
be curious about its origins should not also apply to dyslexics”
(my emphasis). It may be that the use of the word “assume” in
para 47 indicates that what follows is not an inflexible rule, but
a normal expectation.”
23.
The arguments of counsel before me are well set out in their written submissions
before me. In essence, Mr Allan submits that I am bound by Dyson LJ’s interpretation
of what Lord Hoffman said in paragraph 47 of Adams. Mr Jay, however, has sought
to put a different slant on the other supporting speeches in the House, inviting me to
conclude that they were in broad agreement with the test which Lord Hoffman
appeared to be formulating, namely that a reasonable person suffering a significant
injury would be sufficiently curious to enquire of the causes of his injury; thus for the
purposes of determining constructive knowledge under section 14(3) that is the
assumption that should be made.
24.
I agree that I am bound by Dyson LJ’s interpretation that the words of paragraph 47 of
Lord Hoffman’s speech do not form part of the ratio of Adams, nor do they purport to
lay down a definitive rule or test. What I find instructive, however, are the further
words of paragraph 51 and Dyson LJ’s interpretation of their import. So I derive the
following proposition from the authorities: that the normal expectation is that a
person in the situation of the claimant, who considered his injury sufficiently serious
for the purposes of section 14(1)(a) and (2), would have had sufficient curiosity to
enquire at least of his doctor as to the likely cause in general terms; that the normal
expectation can be displaced by the facts of a particular case. I too derive assistance
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
from Lord Phillips’ observation: “It will be a rare case where the result turns on the
true construction of that subsection and this is not such a case.”
25.
I agree with Mr Allan that one example of a fact which might displace the normal
expectation is where the 4th Spargo principle could be said properly to apply. I agree
that nothing said in Whiston or the AVL displaces that principle so that there may be
some cases in which a potential claimant is so misled by the circumstances which led
up to the discovery of his injury that he was indeed ‘barking up the wrong tree’.
However, it seems to me that the court must keep in mind the normal expectation of
how a person who realises he has a significant injury could be expected to react in
terms of how he attributes that injury. It is important to bear in mind that the last
thing that may be on his mind, when he has such a realisation, is the claiming of
compensatory damages. Considerations of how it is likely to impact on his working
life are more likely to be at the forefront.
26.
So it is, as Lord Hoffman observed in paragraph 38 of Adams “[a claimant] may have
had perfectly good reasons for not [instituting proceedings].” In such circumstances a
mineworker, for example, might well accept his situation that he has been diagnosed
with osteoarthritis and simply believes that it is just one of those things and the result
of working in a heavy and physically demanding industry, but does not at that time
seek to pin the blame on any specific acts or omissions on the part of his employer. In
such circumstances, the court still has to consider the normal expectations of a
mineworker who is diagnosed with a significant injury to his physical health. To what
extent he subsequently seeks to attribute his injury to the acts and omissions of the
employer, however, is a matter for the court’s discretion under section 33.
27.
Before I leave section 14 there is one passage at paragraph 79 in the AVL judgment
which caught my eye. I bear in mind that its relevance was particularly apposite to the
facts of that case which depended on when each claimant realised he had been
exposed to radiation and when he was diagnosed with cancer; that, therefore, the facts
were significantly different to the present litigation. Nevertheless, it is an observation
of some interest:
“… the judge recognised that a claimant might acquire
knowledge for limitation purposes in two stages. First, he
would realise that he had something wrong with him and then,
later, he might consider attributability. Of course that is so, but
it seems to us important to recognise that knowledge of the
injury and appreciation of attributability might arise the other
way round. It is in our view entirely possible that a claimant
might know or believe for many years that he has been exposed
to radiation and that such exposure is capable of causing some
forms of illness, for example cancer. Of course, while he is fit
and well, he does not have the knowledge of a significant injury
that would start time running against him; but if he develops
symptoms of illness and is diagnosed as suffering from cancer,
he will then have all the knowledge necessary to start time
running.”
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
28.
In the present litigation it is possible that mineworkers appreciated the physical
demands and effects on the joints of their bodies long before they became aware that
they had suffered significant injury to one or more of those joints. That is relevant
only when considering the significance of general wear and tear.
29.
Whether a significant injury is attributable to the acts and omissions relied on depends
on the factual essence of what is subsequently alleged as negligence or breach of
statutory duty. The aim of section 14 is to eliminate awareness of fault from the
degree of knowledge required. Each of the lead claimants in the present litigation
appears to have believed that walking conditions which caused regular stumbling and
working conditions by which they kneeled and crawled in confined conditions and
knocked their knees on equipment to have been at least to a certain extent the
responsibility of the mine management; each knew of the circumstances which were
in fact responsible for repeated minor trauma whether through stumbling, knocks or
working or crawling on his knees. It is notable and perhaps understandable that none
of them appears to have considered the stress transferred to the knees through heavy
lifting as being potentially a contributory factor. The issue in each of the cases of
Messrs Lewis and Hughes is whether he put his increasing knee pain down to his
working conditions, even though he did not contemplate whether it arose as a result of
negligence or breach of statutory duty; whether he disregarded all possible causes
except for the wet conditions, which he does not rely on now as a cause for his knee
osteoarthritis. In my judgment the question is: where necessary, what was the normal
expectation of a mineworker in his position with his experience of his working
conditions as a whole, when faced with increasing knee pain and a subsequent
diagnosis of significant injury to his knee joint; what could he have been reasonably
have expected to do about it; what advice, in particular, from a medical expert could
he have been expected to seek; armed with such advice what state of knowledge can
be inferred and at what time.
30.
I turn now to the section 33 discretion.
31.
Horton v Sadler [2007] 1 AC 307 reaffirmed Thompson v Brown [1981] 1 WLR 744
in that the discretion is unfettered. I adopt the guidance to judges as provided by
Smith LJ in Cain v Francis [2009] QB 754 at 773 paragraph 63 and following:
“63
As I have said, the authorities all arrive at the same
result but by different reasoning. I believe that it would be
helpful to judges if some rational explanation for the authorities
could be advanced. I have searched for some coherent
explanation of Parliament's intention within the words of the
section itself but did not for myself find one. However, having
now read Sir Andrew Morritt C's judgment, I agree with his
analysis of section 33(1)(b). I do not think one can infer much
from the six factors in section 33(3) which, as Lord Diplock
said, are “a curious hotchpotch”. I agree with the Chancellor
that the phrase “it would be equitable to allow the action to
proceed” is at the heart of the section. Equitable here means
“fair and just”. With that in mind, I think that the rationale
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
underlying the provision must be found in a consideration of
the background to limitation law as a whole.
“64
It is a fundamental precept of the common law that a
tortfeasor should compensate the victim of the tort. At common
law, the victim, now the claimant, could sue the tortfeasor at
any time, without limitation. It is also a fundamental precept
that any person who is sued in respect of a tort should have a
fair opportunity to defend himself. In 1623, a uniform
limitation period of six years was introduced for all actions.
The rationale behind the limit was to protect defendants from
stale claims. It was not fair and just to impose liability on a
defendant who had not had a proper opportunity to investigate
the allegations against him and to assemble the evidence
necessary to defend himself. There may have been other policy
reasons for the provision, such as the desirability of finality but,
as between the parties, the reason was to protect the defendant
from a stale claim.
“65
The effect of the limitation provision was not to
extinguish the claimant's right of action, only to bar his remedy.
The Act did not provide a defence on the merits; the defendant
was ex hypothesi still a tortfeasor; but he could not be sued.
The six-year period must have been Parliament's best estimate
of when it would be unfair or unjust to the defendant to allow
the claimant to enforce his right of action.
“66
So far as personal injury actions were concerned, the
limit remained at six years until the Limitation Act 1954, when
it was reduced to three. I infer that Parliament must have
thought that, in the context of that kind of action, unfairness to
the defendant was likely to arise at an earlier date than in other
actions.
“67
Any limitation bar is arbitrary. It cannot always be fair
and just to permit a claimant to proceed with his action if he
commences it two years and 364 days after the relevant injury.
Significant prejudice and unfairness might already have arisen,
even long before the expiry of three years, for example by the
death of an important witness. But the rule is that the claimant
can proceed, notwithstanding any unfairness to the defendant.
On the other hand, the expiry of the three-year term does not
automatically create unfairness. Yet what was deemed fair on
Tuesday is deemed unfair on Wednesday. There might be no
unfairness to the defendant even if he is required to answer the
claim, say, five years after the accident. The three-year limit is
Parliament's best guess as to when prejudice can be expected to
have arisen such that it is unfair to expose the defendant to the
claim. The imposition of an arbitrary limit could only ever hope
to do rough justice.”
His Honour Judge S P Grenfell
Approved Judgment
32.
Miners’ knee group litigation 7LS50038
In paragraph 69 Smith LJ referred to the importance of the opportunity to defend:
“In fairness and justice, [the defendant] only deserves to have
that obligation removed if the passage of time has significantly
diminished his opportunity to defend himself (on liability
and/or quantum). So the making of a direction, which would
restore the defendant's obligation to pay damages, is only
prejudicial to him if his right to a fair opportunity to defend
himself has been compromised.”
33.
So she concludes at paragraph 73:
“73 It seems to me that, in the exercise of the discretion, the
basic question to be asked is whether it is fair and just in all the
circumstances to expect the defendant to meet this claim on the
merits, notwithstanding the delay in commencement. The
length of the delay will be important, not so much for itself as
to the effect it has had. To what extent has the defendant been
disadvantaged in his investigation of the claim and/or the
assembly of evidence, in respect of the issues of both liability
and quantum? But it will also be important to consider the
reasons for the delay. Thus, there may be some unfairness to the
defendant due to the delay in issue but the delay may have
arisen for so excusable a reason, that, looking at the matter in
the round, on balance, it is fair and just that the action should
proceed. On the other hand, the balance may go in the opposite
direction, partly because the delay has caused procedural
disadvantage and unfairness to the defendant and partly because
the reasons for the delay (or its length) are not good ones.”
34.
The following factors in the exercise of discretion emerge from the judgment of the
Court of Appeal in the AVL:
35.
The Court emphasised the importance of considering each claimant’s case
individually whilst giving consideration to those generic issues that are relevant to the
exercise of the discretion in each case: paragraph 95:
“The MOD is critical of the judge’s generic approach,
submitting that the section 33 exercise must be tailored to the
individual case. We agree that that is so, but see no reason why
the judge was not entitled, at a preliminary stage, to consider
issues that would arise in most if not all the lead cases. That is
acceptable so long as each individual case is separately
considered when the time comes.”
36.
Paragraph 96:
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
“… the burden of proof under section 33 lies on the claimant
(see Thompson v Brown [1981] 1 WLR 744 at 752) recognising
that the suggestion made in KR v Bryn Alyn Community
Holdings Limited [2003] QB 1441 that it is a heavy burden is
no longer good law. The discretion to disapply section 11 is
unfettered and the court’s duty is to do what is fair: see Horton
v Sadler [2007] 1 AC 307 and A v Hoare.”
37.
To this I should only add the case of Burgin v Sheffield City Council [2005] EWCA
Civ 482, in which Clarke LJ stated at paragraph 23:
“Mr Groom submits that the Judge should not have placed
weight on the failure of the Council to adduce evidence of
prejudice because the burden of proof was on the respondent. I
do not agree. While it is true that the ultimate burden is on a
claimant to show that it would be equitable to disapply the
statute, the evidential burden of showing that the evidence
adduced, or likely to be adduced, by the defendant is, or is
likely to be, less cogent because of the delay is on the
defendant.”
38.
This is important when it comes to considering the efforts made to obtain evidence.
39.
In paragraph 103 of the AVL the Court considered the relevance of funding problems
when considering the reasons for delay and the timing of action:
“…. the judge turned to subsection 3(e) - the extent to which
the claimant acted promptly and reasonably once he had learned
that he might have a cause of action. He acknowledged that this
would usually depend on individual circumstances but then
expressed the view that, because of the difficulties of obtaining
funding, it was reasonable for any individual claimant to delay
until a group action could be mounted. We are concerned about
this generic approach to the reasons for delay. We think that it
is important to consider reasons for delay individually and, as
we will eventually show, the judge did not always deal with the
reasons for delay when discussing individual cases; he must
have been relying on his general observation. We doubt the
validity of the proposition the judge accepted, first because in
some cases, legal aid might well have been available at the
material time. Also, the availability of a conditional fee
agreement is not necessarily limited to group actions although
we can see that a group action would be more potentially cost
effective than a single action and therefore more attractive to a
firm of solicitors contemplating taking it on. However, having
expressed our reservations about the judge’s generic approach,
we do not think that this issue will be crucial when we come to
the individual cases.”
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
40.
Whilst this was not decisive, these observations accord with my own view that the
arguments advanced on behalf of the claimants to the effect that they were dependent
on the actions of their Union and of other potential funders before they could
contemplate the pursuit of any proceedings are poor reasons for taking no action. In
my view, there is no special privilege that attaches to a potential claimant just because
he happens to be a member of a Union. To hold otherwise would place him in a
special position which has no basis in the terms of section 33. Once the reasonable
potential claimant has taken the advice which he is expected to have taken, then
protective action can be taken on his behalf. However, as in the AVL I do not consider
this to be a decisive factor.
41.
This brings me to the perception of injustice point which counsel anticipated when
they made their submissions to me last July and on which it was agreed that they
would defer further submissions until the Court of Appeal delivered its judgment in
that case. The Court dealt with this at paragraph 111:
“We think that the judge erred in saying that the need to avoid
an apparent injustice was a weighty factor to take into account
under section 33. We think that the judge must have had in
mind the impression of injustice that would exist in the minds
of the claimants if their claims are struck out and also possibly
in the minds of readers of the rather unbalanced coverage that
these issues have received in the press. In our view those are
not proper considerations for section 33.”
42.
At paragraph 112 the court considered the ‘Broad Merits Test’ concluding with these
words:
“It would be inappropriate for the court to allow an expensive
and resource-consuming trial to take place if the prospects for
the claimants’ success are slight. If the prospects of success are
even reasonable, those resource considerations fade into
relative insignificance.”
43.
The Court went on to exercise its discretion against the claimants in the majority of
the cases. As Mr Allan, rightly points out, in the AVL the difficulties that the
claimants faced was establishing causation between late contamination and the
development of disease, prompt causation having vanished from the case. So, in
effect, he submits, there is no reason to adopt a similar approach in the present
litigation. I can assure those he represents that my approach is to deal with these cases
on their merits and without being influenced by the way in which a court may or may
not have exercised its discretion in other cases.
44.
He submits, because causation was the weak link, that was one of the principal
reasons why the effect of post-limitation delay was fatal to the exercise of the
discretion in the claimants’ favour. That was undoubtedly so. However, the Court
said this at paragraph 157:
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
“We summarise our conclusions in respect of the judge’s
general approach to section 33 issues by saying that we think
that there is sufficient concern about the propriety of the
judge’s approach legitimately to render his conclusions open to
challenge and in the circumstances we are firmly of the view
that we will have to exercise our discretion afresh as and when
it becomes necessary to consider section 33. That is first
because we think that the judge has significantly and wrongly
underestimated the claimants’ difficulties on causation and is
therefore unlikely to have given appropriate weight to that
when applying the broad merits test. We think also that he has
demonstrated an incorrect willingness to give weight to the
claimants’ contention that if their cases are not allowed to
proceed, there will be a perceived injustice.”
45.
I agree with Mr Jay that the AVL judgment is relevant to the exercise of my discretion,
therefore, in the following respects:
(a)
Whilst there may be matters which are common to all or
a majority of the Lead Claimants, in exercising its discretion
under s. 33, the Court must examine each individual case on its
own facts (para. 95 of the judgment);
(b)
The question of delay and any consequential prejudice
suffered by the defendant (para. 101 of the judgment);
(c)
The extent to which the Court should have regard to the
“overall justice” of the case (paras. 107-111 of the judgment);
and
(d)
The broad merits test (paras. 112 and 113 of the
judgment).
46.
From these authorities and section 33 itself I derive the following assistance for my
approach to the exercise of my discretion. I must consider the following: the reasons
for delay from the expiry of the limitation period in each individual case and how
promptly he brought the claim once he was aware of the possibility of bringing a
claim; the effect that that delay has had on the fairness of a trial on liability and
quantum: the extent to which, if at all, the cogency of the evidence has been adversely
affected, as a result of that delay. In addition, I must consider the broad merits of the
litigation and determine whether it is fair and just that any of the individual claim
should go forward to full trial.
47.
In this regard, Mr Allan submits that only post-limitation delay and prejudice
attributable to it may be taken into account. In other words the fact, that by the date of
knowledge in any particular case there already existed considerable or even
impossible difficulties for the defendant to investigate the reasons for the conditions
now the subject of the generic Particulars of Claim and whether it was or was not
practicable to have avoided any of them, is immaterial. Mr Jay on the other hand
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
submits that it is legitimate for me to take account of such difficulties that may have
existed already at the time of the date of knowledge and to take account in addition
such further prejudice that may have accrued to the defendant on top of those
difficulties. The difference between these submissions is highlighted most when I
come to consider the effect of the passage of time on the statutory defence of
impracticability to allegations of breach of statutory duty4. The inability to avail itself
of such a defence must be a matter of simple prejudice which section 33 requires to
have been attributable to the post limitation delay. Nevertheless, in my judgment, it is
legitimate to take such prejudice and any other as is shown to exist into account in
conjunction with the broad merits test and to give some consideration to the prospects
of success whilst not actually deciding on those prospects as such. In other words, it
is legitimate, in my view, to take account of such difficulties as may have pre-existed
the date of knowledge in each case when considering the effect of further post
limitation delay on the fairness of a trial.
The Parties’ Respective Approaches to the Issues in General
48.
It is helpful for the purposes of determining the preliminary issues before me to have a
clear understanding of the claimants’ generic case. Those advising and presenting
their case have made it clear that their approach is similar to that in any industrial
disease case, drawing comparisons with claims involving hearing loss, chronic
obstructive pulmonary disease, and hand arm vibration syndrome (‘HAVS’ or
‘vibration white finger’/‘VWF’). The Department, however, seeks to draw some
important distinctions between those categories of disease cases and the instant cases
of knee osteoarthritis. The experts tell us that it is the result of minor trauma and
stresses to the knee sustained over a number of years. Some of those trauma and
stresses may have been the result of breach of statutory duty or negligence on the part
of the NCB/BCC and, therefore, avoidable. Some of them may have been
unavoidable in the sense of being inevitable through the very nature of underground
mining work or otherwise impracticable to have been avoided. Some of them may
have been the result of a simple failure on the part of the man to take sufficient care,
or possibly a combination of avoidable breach of duty and lack of care on the part of
the claimant. Thus the Department’s case is that whilst the result, namely
osteoarthritis, is recognisable as an orthopaedic disease, nevertheless, the various
possible causes are the results of minor trauma.
49.
The procedural history is that the Department had argued for an additional preliminary
issue whether an individual lead claimant had sustained major trauma. I ruled against
such a preliminary issue as such, whilst accepting that whether or not an individual
had suffered major trauma could be relevant to the issues raised as to limitation
knowledge. Mr Allan could not resist categorising the apparent shift in emphasis on
157. It shall be a defence in any legal proceedings to recover damages …, in so far as the proceedings … are …
based on an allegation of a contravention, in relation to a mine … , of—
4
(a) a provision of this Act, of an order made thereunder or of regulations …
….
to prove that it was impracticable to avoid or prevent the contravention.
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
the part of the Department as “from major to minor”5 suppressing the urge to break
into song.
50.
The significance of repeated minor trauma, however, came to prominence through the
common expert medical evidence combined with the examination of each lead
claimant’s description of his working conditions. This was highlighted by the simple
proposition put to and accepted by the claimant, Lewis, that there will have been both
avoidable and unavoidable causes of the kind of minor trauma which cumulatively
resulted in the development of knee osteoarthritis.
51.
It is for this reason that Mr Jay argues that it becomes increasingly difficult with the
passing years to distinguish between the avoidable and unavoidable causes of minor
trauma.
52.
Mr Allan and Mr Bowley on the other hand argue that these claims are about the
working conditions; that, once a claimant establishes his working conditions over the
years and that a proportion of those working conditions was more likely than not to
have contributed to his knee osteoarthritis, then expert evidence can assist the court to
apportion as between the likely negligence and breach of statutory duty and non
negligent causes; further, where there might be issues of practicablility, then expert
evidence can assist the court to determine the extent to which it will have been
practicable to have avoided or minimised the kind of working conditions that
contributed to the development of knee osteoarthritis.
53.
In my judgment, there is a valid distinction between the types of industrial disease
cases which have been before the courts in respect of noise, dust and machine
vibration and the current litigation. For noise, there needed to be established
excessive noise, knowledge on the part of the employer that excessive noise caused
hearing loss and that there were precautions that could be taken to prevent or to
minimise the effect on hearing, and failure to take such precautions. Similarly for
dust there needed to be established excessively dusty conditions, knowledge on the
part of the employer that excessive dust caused pulmonary disease and that there were
precautions that could be taken to prevent or to minimise the effect on the lungs, and
failure to take such precautions. In terms of machine vibration there needed to be
established what came to be known as an action level of exposure to vibration,
knowledge on the part of the employer that such an action level of exposure caused
HAVS and that there were precautions that could be taken to prevent or to minimise
the effect on the fingers, and failure to take such precautions.
54.
In the current litigation, the current state of the medical evidence in respect of the 8
lead claimants tends to show that repeated minor trauma to the knee can be caused by
a number of various contributory factors such as stumbling, banging the knee,
crawling, working and twisting whilst kneeling and the stress conducted to the knees
though lifting and carrying heavy weights. My understanding is that it is the repetition
of such minor trauma over several years that is a causative factor in the development
5
© Cole Porter.
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
of knee osteoarthritis. However, for obvious reasons the claimants cannot present a
case that each claimant should not have been exposed at all of the rigours of
underground mining. That would have involved presenting a case that it was a
negligent breach of duty to employ anyone underground. The claimants’ case,
therefore, involves a potential investigation into the causes of those repeated trauma
and whether through the recollection of factual matters and expert engineering and
medical evidence it is possible to prove that at least a proportion of the minor trauma
was avoidable in the sense of having been the result more likely than not of some
breach of duty on the part of the NCB/BCC. I agree with Mr Jay that that is a far
more complex exercise than that which has to be undertaken for the three examples of
industrial disease cases which I have taken above.
55.
There is, in my view, a further distinguishing feature between those earlier
employment disease cases. It is clear from the orthopaedic experts that there are
multiple and various possible factors that cause the development of osteoarthritis. For
this reason and for reasons which I propose to expand, the claims in the present
litigation cannot rely merely on establishing the conditions that the claimants describe.
It is essential that the complex reasons that lay behind those conditions are
investigated in as much detail as would be possible. This, as I shall explore further, is
where particular difficulties arise when considering the merits of the litigation.
The Working Conditions
56.
In order to consider both the working conditions, which are now said to have been
responsible in part or in whole for the development of knee osteoarthritis (for the
purposes of section 14 of the Act), and the likely cogency of the evidence to be relied
on at trial (for the purposes of section 33 of the Act), I have extracted the following
from the evidence given to me by the 8 lead claimants and which I have supplemented
where necessary from my own knowledge recalled largely from practice at the Bar and
which I acknowledge may not be perfect.
57.
The claims cover an extended period of coal mining history and methods. It is
important to appreciate that over the period with which these claims are concerned,
which broadly coincides with the coming into force in 1956 of the Mines and Quarries
Act 19546 (“MQA”) and ends with the privatisation of the coal industry in April 1994,
coal mining developed considerably, both in terms of efficiency of production and of
safety. Two principal methods have been considered: pillar and stall, by which the
coal was extracted leaving large ‘pillars’ of coal and a network of roadways between
them; longwall face extraction, by which a length of coal was extracted leaving the
strata above the coal to collapse behind the face as it advanced to lessen the forces on
the newly exposed strata. In both methods of mining the roof and sides for as long as
necessary were originally supported by timber (props, bars and chocks built with
blocks). Each face needed a supply road or ‘gate’ (some originally had two) and a
loader or main road or main gate through which the coal was transported to the Pit
Bottom, if there was a shaft, or to a drift, and by either means up to the surface.
Mr Lewis’ claim in fact covers a short period during which the Coal Mines Act 1911 was still in force, but no
breaches of that Act are relied on on his behalf.
6
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
Originally, coal would be loaded, that is shovelled, onto a belt conveyor to a point
where it was transferred to drams, trams or tubs, which were then hauled outbye7 on
rail tracks originally by ponies and later by mechanical wire rope haulage systems and
later still by locomotives. In the other direction materials and equipment were brought
inbye to the face on similar vehicles and manhandled into position. Sometimes, when
the face was not producing, coal supplies were sent inbye by reversing the main or
loader gate conveyor. The coal face was undercut by a cutter machine (not unlike a
modern chain saw, only substantially larger) with chain and picks at right angles into
the coal, hauling itself along wire rope. The coal then had to be brought down and
loaded onto the conveyor. Each faceworker operated in a stint, that is his own area
over several yards of the face for which he was responsible. In it he would take down
and reset the props and bars to support the newly exposed face. The height of the face
would depend on the thickness of the coal seam. Typically, most of the faces
described by the lead claimants were in the region of 3 to 4 feet in height, although
they could be lower or higher. If they were much lower, some strata would be
extracted in addition to coal. It is common ground that the method of mining
necessarily required men to work often for long periods on their knees, having to
crawl and to twist in order to shovel coal and debris.
58.
It should be interposed here that some seams in the various coal fields would be
substantially higher and would permit men to work standing. None of the lead
claimants appears to have worked for any significant length of time in such
conditions. It is not, known, therefore, if there are claimants within the Group who
did and who nevertheless developed knee osteoarthritis. However, it is clear than
mineworkers did not simply have to work in narrow seams to develop knee
osteoarthritis, as the uncontroversial medical evidence clarifies.
59.
As the face advanced, so the roadways needed to be advanced to keep up. In order to
create greater height the strata above the coal was ‘ripped’ down either square to
accommodate the larger roof supports or later to the shape of arch type girder supports
which would be lagged with planks of timber or corrugated steel. The point where the
height came down to the face height was known as the ripping lip, which itself had to
be supported. In order to lessen the forces on the coal face the strata above and behind
the face as it advanced was allowed to fall into what was called the ‘waste’, ‘goaf’ or
‘gob’, so that the newly exposed roof would be supported. Then, as the face advanced
and those supports were removed and reset, the roof would be allowed to collapse. In
order to support the sides of the roadways, packs were built of stone (much like dry
stone walling) and filled with debris for some distance from the road into the face.
By the time with which these claims are concerned, the prop free front8 had been
developed, which enabled a clear run for coal cutting machinery
60.
In the early days, an area of coal was cut out at either end of the face to enable the
cutting machine to start its cut along the face. That was the stable hole, so named
from the days when ponies were used.
The terms ‘inbye’ and ‘outbye’ are universal in mining to indicate the direction in towards, and out from, the
workings.
8
Bars set in cantilever towards the face, so eliminating the need for props set right up to the coal face.
7
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
61.
In some instances the coal face retreated. The system was much the same, only the
roads or gates were driven first and the coal face worked back or retreated in the
direction of the pit bottom.
62.
There were several variations on all these themes as mechanical equipment was
developed. Hydraulic props or posts replaced timber, steel bars replaced the wooden
bars. Armoured face conveyors were introduced consisting of steel sections in which
ran two chains with flight bars (much like a horizontal steel rope ladder) and which
dragged the coal to the loader gate and onto the ordinary conveyor. Various machines
were developed for cutting down the coal: trepanners and shearers, for example,
which dragged themselves along the armoured conveyor.
63.
A considerable advance was the hydraulic chock. These are integral supports
consisting of a steel canopy with hydraulic legs, usually a block of 4 legs at the back
and another two at the front. In this way a travelling track was created through the
hydraulic chocks along the face. Each chock had a horizontal ram for pushing over
the armoured conveyor towards the face and eventually acting in reverse for pulling
itself forward on its skids. They developed to be fitted with ‘flushing’ shields to the
rear to stop waste debris from coming into the track inside the chocks. One complaint
in this litigation is that such shields were not developed early enough.
64.
Generally, the faceworkers were interchangeable in their jobs, but there would be a
shearer driver followed by men pushing over the conveyor into the track made by the
machine cutting the face down and others pulling the chocks forward and resetting
them to the roof. Each man, therefore, would traverse the length of the face on each
cut. Some complaint is made that it would have been better practice to retain a
variation on the old stint system, so that men would not have had to traverse the whole
face, but only that part of it for which they were responsible.
65.
Meanwhile, at the ends of the face, the stable holes were replaced by advanced
headings. Mineral from these was loaded onto the conveyor system by various
mechanical means.
66.
A coal face would be developed in the first place by driving the roadways to the point
where the coal face was to start its advance (or retreat). Development workers were
essentially tunnellers responsible for clearing the mineral that had been bored and
fired down and setting the roadway supports.
67.
Each coal face and heading had to be supplied with water for dust suppression,
hydraulics for the supports, and power for the machines. This would require heavy
steel equipment at each end of the face which would have to be traversed.
68.
The roadways, once established would carry a conveyor to take the coal out, a rail
track for transporting materials to the face, ultimately a track for transporting coal in
vehicles, such as drams, tubs and later minecars. There were many variations as to
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
what would be running along a roadway at any given point. Motive power changed
from pony to wire rope haulage systems and to locomotives.
69.
The pressures that resulted from the coal extraction resulted in the road supports being
squeezed and distorted and the floor tending to come upwards (floor heave or lift)
resulting in restriction of height and width and unevenness of the floor. Such
conditions required repair by further ripping (sometimes known as back ripping) and
dinting of the floor, digging into the floor to create a flat surface again, to regain the
necessary height and width. Complaint is made in this litigation that such conditions
resulted in such poor travelling and working conditions that men were exposed to
stumbling and other minor trauma. Because the only remedy for such conditions apart
from abandoning the district was to rip and to ‘dint’ the floor, an important issue
concerns how quickly such remedial work was done and how effective it was given
the geological conditions before further remedial work became necessary.
70.
In terms of travel, men rode in adapted vehicles variously termed drays or paddies, but
it is clear that such vehicles could not take them all the way to their places of work, so
that the rest of the distance would have to be traversed on foot. Later conveyors were
specially adapted to enable men to ride in and out, mounting and alighting at special
platforms. Complaint is made that for various reasons men had to walk excessive
distances to reach their places of work and that when there had to carry heavy loads
over excessive distances. However, it was accepted practice that heavy steel bars,
girders and armoured conveyor sections, for example, had to be manhandled at least
for some distance as an inevitable part of what was recognised to be heavy and
demanding manual work. Mr Lewis recognised the importance of having strong
upper body strength for just this reason, expressing at the same time his surprise that
heavy lifting should have put strain on the knees.
71.
Apart from the Pit Bottom areas and some main roadways and junctions, lighting was
generally by individual’s cap lamp. Complaint is made that static lighting should have
been provided to a greater extent where cap lamps were the generally recognised form
of lighting over the years.
72.
The orthopaedic experts have very largely agreed on the likely causation of knee
osteoarthritis in mineworkers such as exemplified by the lead claimants and as related
to the working conditions discussed. Whilst there are some issues of causation raised
by the experts, notably in respect of constitutional disposition and sporting injuries in
some cases, I do not regard these likely issues as presenting serious post date of
knowledge prejudice to either side where the resolution of such issues depends largely
on the interpretation of the medical records. There will be some individual cases,
such as, for example, has been highlighted in the case of the claimant, Davison, where
an individual’s recollection and evidence holds the key as to the significance of non
mining trauma, such as, for example, sporting injuries.
73.
With what then is hopefully a general picture of the ordinary working conditions in
mind that are relevant to the development of knee osteoarthritis, I turn to the way in
which the claimants have stated their case on breach of duty.
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
The Claimants’ Generic Case
74.
In terms of foreseeable injury the claimants rely on a number of documents which
tend to show that the NCB/BCC ought to have known from the early 1950s that
meniscal injury and knee osteoarthritis were present amongst its underground
workforce. The claimants seek to rely on several studies into rheumatism, knee and
spine osteoarthritis conducted at around that time.
75.
There is an issue as to the interpretation of the literature and documentation that is
relevant to determining the NCB’s state of knowledge, but there is no lack of cogency
within that evidence. The passage of time, in my judgment, is unlikely to affect the
proper interpretation of the available material. This is perhaps the least of the
problems facing the court, where it is necessary to consider issues of liability or the
section 33 discretion.
76.
The claimants rely on the facts that underground workers did physically demanding
work often in cramped and awkward positions; had to travel on uneven, obstructed
and poorly lit roadways; had regularly to manhandle heavy weights.
77.
They rely on the fact that the incidence of such injury was higher in underground
mineworkers than in the general population. There is no apparent reason why that
provisionally should not hold good as a general proposition, although in the end it is a
matter for expert opinion.
78.
The nature of the work potentially causative of knee injury is set out at section 6 of the
amended claimants’ Generic Statement of Case: kneeling for long periods combined
with carrying out strenuous work; crawling over long distances and over debris,
equipment and uneven surfaces; carrying heavy weights over uneven and poorly lit
surfaces; walking long distances over uneven and poorly lit surfaces resulting in
frequent trips, slips and stumbles.
79.
The steps that are alleged could have been taken to avoid unnecessary strain and
impacts on the knee are set out at section 7.
80.
Section 7.1 deals with knee pads. The design of those available to the men is
criticised as ‘poor’ – they tended to move out of position and, it was said in evidence,
tended to collect small pieces of material. Their efficacy reduced over time. There
was inadequate provision for replacement. The NCB/BCC should have dictated
improvement in design. Unsuitable knee pads failed to protect against repeated minor
trauma.
81.
Section 7.2 deals with mechanised faces.
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
82.
This is aimed at the repeated injury from crawling and working on the knees on
debris, accumulating from the waste behind the supports in the tracks of the hydraulic
chocks in the early days of mechanisation. It is alleged that early supports were not
equipped with flushing shields or other designs of shield to prevent debris from the
waste falling into the track through the supports; that introduction was piecemeal and
slower in some areas than in others. There should have been matting used to reduce
the impact of knees with sharp edges of the supports. In reply to the defendant’s
request for further information of this allegation9, there appears an important
allegation that the hydraulic chocks should have been designed with smoother edges
and fittings that didn’t protrude into the tracks. Where it is confirmed that breach of
statutory duty is relied on in these respects, I assume that the claimants will rely on
regulation 2 of the Coal and Other Mines (Managers and Officials) Regulations 1956
which required the manager and under-manager to secure that a sufficient supply of
suitable materials and appliances was at all times readily available for ensuring the
safety of persons (later regulation 13(1) of the Management and Administration of
Safety and Health at Mines Regulations 199310 11). Section 3412 of the MQA did not
apply to any travelling way through coal faces. It is further alleged that there should
have been better systems for clearing the tracks through the supports of debris. It is
alleged that as a result debris in the track through the supports reduced the working
space and increased the potential for minor trauma.
83.
Section 7.3 alleges breaches of section 61 of the Act in that the coal faces and many
roadways were poorly lit; there was a general lack of adequate lighting which should
have been available in these places. This was clarified to allege that lighting limited
to the miner’s cap lamp was insufficient to enable them to avoid uneven surfaces,
obstructions and potholes. It appears to be alleged that there should have been static
lighting provided by a continuous supply of electricity.
84.
Section 7.4 attacks the whole system of creating stable holes on the basis that they
were confined spaces in which men had to work on their knees or haunches; that
advance headings should have been used; that there should have been earlier
mechanisation; that at least there should have been suitable knee pads (as alleged) and
job rotation.
85.
Section 7.5 refers to packing: that is building in effect what I have described as the
kind of dry stone wall to support the sides of the roadways or gates as the face
advances, by using the loose stone to pack from the floor to the roof. It is alleged that
specialised packing materials and mechanised packing should have been used by
means that could have been devised in the 1950s; that there should have been job
rotation.
9
Reply 32 of paragraphs 7.2.9-7.2.10
It shall also be the duty of the manager of the mine, so far as is practicable–
(a) to ensure that there is such sufficient supply of materials and plant and equipment readily available as is
requisite to enable the relevant statutory provisions as they apply to the mine to be complied with;
11
Note as from October 1993 by regulation 39 ‘Section 157 of the 1954 Act (which provides a defence in legal
proceedings …) shall not apply … .’
10
12
Requiring safe walking conditions in roadways.
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
86.
Section 7.6 concerns the uncontroversial fact that heavy materials had to be lifted and
carried over uneven ground in transport roads and on the faces and in the construction
of junctions. The allegations are that mineworkers often had to lift greater weights
than were safe and were given no guidance on safe lifting and carrying methods; that
the haulage for such materials did not always keep up with the advance of the face, so
requiring them to be manhandled for that distance; that there should have been
mechanical means of lifting and carrying the heavier items, such as cranes, hoists,
slings or a mono-rail; that there was generally insufficient recognition of the problems
associated with lifting.
87.
Section 7.7 concerns the problems of walking over uneven surfaces, especially when
carrying heavy weights, in some instances aggravated by wet conditions. The
allegation is that the floor of roadways further inbye, of headings and of faces were
generally neglected; that more should have been done to make the floors even; floors
should have been kept clear of debris and equipment; floor lift or heave should have
been addressed by dinting (digging down to form a level floor); stone dusting should
have been used to improve surfaces.
88.
Section 7.8 alleges a lack of training on the awareness of the potential for knee
damage and of the steps to reduce it.
89.
Section 7.9 alleges that the stint system, by which before mechanisation of faces one
man would be responsible for just a specific part of the coal face (his stint), should
have been continued in order to reduce the distances over which men were expected to
crawl on the face, as was retained in South Wales for some time.
90.
Section 7.10 attacks an undue focus on production and lack of response to questions
of manual handling and bio-mechanical risks; there was a failure to properly to
investigate and to respond to the problem of knee osteoarthritis.
91.
Section 7.11 alleges that a system of medical surveillance should have been used for
identifying those suffering from chronic knee injury to enable them to make informed
decisions about their own welfare.
The Generic Defence
92.
I take the following from the Generic Statement of Defence. From the Kellgren and
Lawrence papers in the early 1950s it was plain to the NCB that underground
mineworkers who worked in the roadways and on the face appeared to be at a higher
risk of developing knee osteoarthritis than the general population. The Defence puts
in issue, however, by what timescale the NCB became aware of the extent to which
that risk was heightened and of the specific causes of the condition. There is an
acceptance that current medical opinion indicates that repeated and prolonged knee
bending and heavy lifting are risk factors, but puts in issue as to when such medical
consensus came about. The Defence emphasises the need for the claimants to
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
establish that NCB were aware of the particular facets of mining which enhanced the
risk beyond being aware that coal mining was heavy and onerous work. In terms of
the employer’s duty to carry out research, it is asserted that the duty was no greater
than to keep abreast of developments in medical and technical knowledge; that it was
not until the early 1990s that ‘reasonably robust’ research findings began to establish
the required causal connection. This last pleaded point prompted Mr Allan to pose the
question how could individual claimants be expected to have sufficient knowledge for
the purposes of section 14 Limitation Act before then, although this has rather fallen
away with the agreement that some of the dates of knowledge were in the 1980s in
any event.
93.
The Defence raises the points that kneeling, crawling, lifting and walking long
distances were unavoidable in, and intrinsic to, mining work. It puts in issue the
causative effect of the pleaded preventative measures of reducing such activities. The
causation of knee osteoarthritis or chronic meniscal injury, in relation to the presence
of debris, uneven surfaces, or frequency of trips, slips and stumbles, is put in issue.
94.
The Defence accepts the risk in respect of work that persistently involved kneebending in conjunction with heavy lifting. It puts in issue whether kneeling on its
own amounts to a risk factor.
95.
The Defence makes the point that the preventative steps relied on by the claimants
amount to ‘wide-ranging and unparticularised generalisations’ in relation to the
variable conditions that existed over the 40 year period with which this litigation is
concerned. Causation as between the preventative steps relied on is put in issue.
96.
Specifically, the following activities were unavoidable in terms of what was
reasonable or practicable: kneeling for significant parts of a shift; heavy lifting and
carrying to and from the face; debris and obstructions arising from time to time in the
face walk ways and roadways; exposure to minor trauma and sprains from the
environmental and physical conditions underground. In particular, the Defence relies
on the defence of impracticability provided by section 157 of MQA.
97.
The Defence deals with the specific allegations of precautions that could have been
taken. The following are put in issue: the causative relevance of knee pads; the
causative relevance of, and the inevitability of, debris accumulating on the face; what
level of debris created a foreseeable and avoidable risk; whether the introduction of
flushing shields was negligently behind the time in relation to any colliery; the
avoidance by design of sharp edges of equipment on the face; the extent to which
lighting on the face was dependent on the development of power supports and on
being of low power, flameproof and sufficiently fluorescent; the extent to which such
lighting was effective; the extent to which such lighting could be provided on the face
at all; the causative relevance of lighting as alleged to be insufficient; whether the use
of stable holes in general constituted a negligent system of working; whether it was
impracticable to have avoided the use of stable holes until the development of new
technologies replaced them; the causative relevance of their use in terms of risk to
knees and of possible rotation of work (noting that these allegations appear to be
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
limited to the period ending about 1970); similarly the causative relevance of manual
packing; whether it was impracticable to have avoided manual packing until the
development of new technologies; the extent to which lifting and carrying could be
regarded as unsafe in terms of foreseeable injury to the knees; the causation as
between lifting and carrying and injury to the knees. In this respect the Defence
makes the point that research into lifting and carrying was more directed at the risk
and avoidance of back injury.
98.
The Defence in respect of walking surfaces is that: the nature of walking surfaces and
the existence of obstructions vary as between each roadway and at any point in time;
therefore, conditions need to be considered locally; it was impracticable to keep
walking surfaces clear and even at all times; the safety of such surfaces was monitored
and enforced each shift by the deputies; dinting addressed geological conditions. It
puts in issue: the extent to which any individual tripped or stumbled as a result of
breach of common law or statutory duty; the causative effect of such strips and
stumbles; the steps that were necessary to avoid the presence of obstructions. The
Defence further puts in issue the causative relevance of training, organisation and
medical surveillance and relies generally in response to all allegations of breach of
statutory duty, its statutory defence of impracticability.
99.
The relevance of contributory negligence became clear in the course of the trial,
simply that one explanation for a trip or a stumble could be lack of care on the part of
the mineworker.
The Medical Evidence
100.
The medical evidence, as I have already indicated, is relatively uncontroversial and
considerably reduces the complexity in at least this aspect concerning the issues of
limitation.
101.
The medical evidence is important for two main reasons. It assists in determining the
date of knowledge for the purposes of section 14 of the Act by demonstrating when
the osteoarthritis had developed to the point of being a significant injury of which the
individual claimant was aware. Secondly, it is important for the task of assessing the
possible effect of delay on the cogency of the evidence by identifying the possible
issues that could arise in any individual case. The medical evidence clarifies that
there is unlikely to be any issue as to the causal relationship between the individual
descriptions of walking and working conditions underground on the one hand and on
the other the development of knee osteoarthritis.
102.
The orthopaedic experts agree that osteoarthritis is a degenerative condition of joints
with inflammation and damage to the joint surface. This results in pain, swelling and
stiffness and may eventually lead to deformity. Osteoarthritis results in characteristic
changes in the joint which are visible on x-ray.
Miners’ knee group litigation 7LS50038
His Honour Judge S P Grenfell
Approved Judgment
103.
The experts agree that osteoarthritis is not a single disease process. Rather, it is the
end point of a complex process that may be initiated by a single factor or multiple
factors. The experts agree that the factors that may contribute to the development of
osteoarthritis can be considered under the following broad groups:
a)
Inherited (genetic factors).
b)
Joint surface damage.
c)
Repetitive joint damage.
d)
Inflammatory conditions.
e)
Increased strain on the joint.
f)
Abnormal movement of the joint.
104.
There is a large measure of agreement between the orthopaedic experts who have
examined the 8 lead claimants, Mr Bickerstaff and Professor Moran. Where there are
disagreements between them they are essentially a matter of degree. I consider the
likely issues in respect of each of them.
105.
‘Inherited (genetic factors)’ are considered where a person develops osteoarthritis in
other parts of the body as a possible indicator of a pre-disposition to develop the
condition, for example, in the knees. Mr Bickerstaff is of the opinion that where
someone worked in heavy manual labour for many years as a miner it is not unusual in
such individuals to develop degenerative changes in other joints due to the heavy load
placed upon them by their work; that the presence of osteoarthritis elsewhere within
the body itself is not evidence of a constitutional predisposition. Professor Moran on
the other hand considers each individual on the basis that, where there is evidence of
osteoarthritis in other joints he may have some inherited predisposition to developing
osteoarthritis. Significantly, however, in none of the lead claimants has this apparent
issue between the experts detracted from the general agreement that the nature of the
individual’s work contributed to the development of osteoarthritis in the knees.
106.
‘Repetitive joint damage’ appears to be the most significant of the causative factors as
being particularly relevant to the instant cases.
107.
Considering ‘increased strain on the joint’, both orthopaedic experts agree that obesity
predisposes patients to developing osteoarthritis to the knee. The experts also agree
that obesity will exacerbate the progression and symptoms from knee arthritis.
Diagnosis of obesity depends on a patient’s Body Mass Index (BMI) which is
calculated from their weight and height. A patient is considered overweight if their
BMI is between 25 and 29.9. Obesity is diagnosed with a BMI of 30 or greater. A
BMI of greater than 35 is considered to be severe obesity. The orthopaedic experts
agree that in some cases, particularly men with a very muscular build, the BMI may be
raised because of muscle mass rather than fat. Thus, sportsmen may have a high BMI
but are not obese.
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
108.
Professor Moran believes that playing regular contact sport does increase a patient’s
risk of developing knee arthritis. This risk becomes much more important if a patient
suffers a severe injury such as a torn cartilage, torn ligament or fracture. One area
which, it strikes me, has not yet been explored with the orthopaedic experts, but which
could become relevant in some individual cases, concerns what distinction can be
drawn between a person sustaining repeated minor knocks, not amounting to major
trauma, in the course of his work as a mineworker on the one hand, and on the other in
the course of playing contact sports.
109.
The conditions of gout and chondrocalcinosis can result in the deposit of crystals
within joints and these crystals can cause direct damage to the joint surface due to
abrasion. Crystals also result in inflammation that can cause joint damage and,
ultimately, osteoarthritis.
Discussion as to the Exercise of Section 33 Discretion Where Appropriate
The Length of, and the Reasons for, the Delay
110.
In the case of each of the lead claimants where section 33 discretion has to be
exercised, there has been substantial delay from his date of knowledge, measuring
years in double figures in most cases, if not all, according to the Department’s case. I
shall consider the actual delay and the reasons for it when I come to the individual
claimants.
The Effect of Delay on the Cogency of the Evidence
111.
There needs to be some analysis of what the issues would be at trial and how they can
be addressed. Many of these issues, in my view, are generic, but I shall attempt to
distil from the evidence the evidence that is likely to be considered in respect of each
claimant.
112.
Having heard each of the lead claimants recall the conditions in which they walked
and worked, in conjunction with expert medical evidence that was made available for
the limitation hearing, it may well be that the judge hearing the issue of liability would
have little difficulty in finding where each claimant worked at any given time, where
he had to walk in order to reach his place of work, what the work would have
involved with particular reference to the lifting and carrying of heavy materials, how
far each coal face or development would have reached at any given time, how much
work in the ordinary course of things he would have to crawl and work on his knees.
That is because there is a wealth of documentary evidence, for example in the form of
plans and dust records, which can provide such information.
113.
There would be little difficulty in finding a causal relationship between likely
conditions of walking or crawling, heavy lifting and working in confined conditions
on the knees on the one hand and on the other the insidious development of
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
osteoarthritis, subject, of course, to possible further examination of the expert medical
evidence. In this regard, I anticipate serious difficulty in determining what would
have been the likely effect of unavoidable conditions on the development of
osteoarthritis. Whilst to a certain extent the experts can give their opinions about this,
nevertheless, they will almost certainly say that it depends on the factual evidence.
This is likely to create significant difficulty in any attempt to apportion between the
unavoidable and the avoidable. This forms part of the general consideration of the
broad merits, but also is potentially a factual area where cogency is likely to have been
adversely affected by limitation delay.
114.
A harder question, in my view, might well be whether the trips, stumbles and knocks
happened, as described in evidence to me, on an almost daily basis or from time to
time depending on the severity of the conditions. In this respect it is easy to assert in
general terms, but harder to refute. However, this is perhaps an example of a
difficulty that would always have beset the allegations in the present litigation even if
it had been brought within the respective limitation periods.
115.
Perhaps the hardest question of all would be to determine which conditions were
avoidable and how they might have been avoided at the time.
116.
There are many photographs which show adverse geological conditions and which
illustrate some of the problems that were encountered during the mining of coal.
However many photographs there are, each is literally and necessarily a snapshot. I
note that many have come from mining archives and museums. What none of the
photographs can show is whether those conditions were avoidable or unavoidable.
For example, a photograph of a roadway restricted in height and width with crushed
roof and side supports cannot explain whether or not this occurred because inadequate
supports were set; whether or not the roof pressure or floor heave was greater than
usual; what steps could have been, or were in fact, taken to repair the situation; how
quickly were such steps taken. From what I can understand, it is unlikely in the
absence of a specific investigation of an incident related to restriction in height and
width of that roadway, that there will or ever were, even by the dates of knowledge,
any answers to be had to those questions except in the most general of terms.
117.
I shall assume for these purposes that expert mining engineering evidence could be
called as to the likely causes of such restriction in height and width and as to what
steps could have been taken to repair the situation and within what timescale, at least
on a general and hypothetical basis.
118.
I am prepared to assume, based on the evidence rehearsed before me by the 8 lead
claimants, that, with the assistance of mining engineering evidence and of such factual
recollections as may still be available, a case could be presented as to the likely
circumstances when roadway supports for one reason or another in general terms
failed; as to the likelihood of the resulting restriction in height and width not being
repaired as quickly as it might have been; as to the likelihood of walking conditions
remaining particularly bad.
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
119.
The difficulty comes when the evidence of the lead claimants is properly analysed in
distinguishing those conditions which might be shown to have been avoidable in the
sense of not being addressed regularly and those conditions which were not
attributable to any particular geological problem, but which were inevitable in
underground roadways. From the evidence of the claimants themselves it is clear that
their recollection today is that tripping, slipping and stumbling was an inevitable part
of their day’s travelling to work and working itself; that they recognise the 3 possible
categories of avoidable, unavoidable, and simple failure of care on the part of the
individual.
120.
In some cases, the workmen’s inspector’s reports (made under section 123 MQA “The
section 123 reports”) can, if available, give an impression of what matters of safety
were troubling those inspectors at the time. Similarly the minutes of consultative
safety committees, on which unions and management were represented, could, if
available, give a similar impression. What would always be necessary, however, in
order to complete the picture would be some evidence as to what was done in
response to particular concerns that were raised. Plainly the earlier such evidence is
able to address such concerns the easier it is to determine whether the particular
matters raised were avoidable or unavoidable. Conversely, the longer the time that
elapses, so the greater is the difficulty in addressing such matters, eventually to the
point of impossibility.
121.
I consider the question of walking conditions.
122.
Section 34 was an important provision for securing safe walking conditions. It
imposed an onerous duty personally on the Manager to take the required steps. The
analogous provision for supporting the roof and sides13 contained similar words: “The
Manager shall take such steps as are necessary to secure …”. This duty and the
reasoning behind it were analysed by the House of Lords in Brown v National Coal
Board [1962] AC 574 and subsequent authorities. In the result, once a claimant
proved that his injury was caused by the presence in the roadway of an obstruction
there would be established a prima facie breach of section 34(1)(b)14 and the burden
of showing that all necessary steps were taken to avoid the presence of that
obstruction shifted to the defendant; further and importantly, it was open to the
defendant to rely on section 157 of the Act to prove that it was impracticable to avoid
or prevent the breach.
13
Mines and Quarries Act, 1954, s. 48.— Duty to secure safety of roads and working places.
(1) It shall be the duty of the manager of every mine to take, with respect to every road and working place in the
mine, such steps by way of controlling movement of the strata in the mine and supporting the roof and sides of
the road or working place as may be necessary for keeping the road or working place secure:
14
Mines and Quarries Act, 1954, s. 34: “ (1) It shall be the duty of the manager of every mine to take, with
respect to every length of road therein, being a length in which vehicles or conveyors run or which is used at the
beginning or end of a shift by not less than ten persons for the purpose of walking to or from their working
places in the mine, such steps as may be necessary to secure that the following provisions are complied with,
namely, — … (b) every such length of road … shall be kept free from obstructions and the floor thereof shall be
kept in good repair and in such a condition that any persons or animals who use that length of road can tread it
with safety and reasonable convenience. …”
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
123.
In this last respect counsel have understandably fallen into the trap of referring to what
might have been reasonably practicable. However, the authoritive and unchallenged
decision of Veale J in Jayne v National Coal Board [1963] 2 All ER 220 draws the
important distinction between what may be practicable and what may be reasonably
practicable, the latter involving consideration of such matters as resources and
commercial expediency, the former requiring consideration only of what was
practicable in engineering and practical terms.
124.
The effect in law was that some duties to prevent injury were deliberately set stricter
than common law negligence, for the very reason that coal mining was recognised to
be a potentially hazardous occupation. Heralding the MQA the 1954 Hudson paper
‘Problems Concerning Safety and Health in Coal Mining’15 highlighted falls of roof
and haulage being the two highest causes of fatal, reportable and compensable
accidents. It is clear that, by the time of the 1978 Nussey paper ‘Studies of Accidents
Leading to Minor Injuries in the UK Coal Mining Industry’16, serious attention had
been directed to the significance of minor injuries in terms of lost time off work. It is
notable that this study related to injuries requiring treatment categorised as those with
up to, and those over, 3 day absence. Of course, injuries requiring treatment had to be
reported, of which I have seen many examples referred to me in this trial. This case,
however, as I understand it is concerned with the many minor knocks and strains that
were not injuries requiring treatment.
125.
Returning to section 34(1)(b) I have been reminded of some case law as to what did
and what did not come within the term ‘obstruction’. The answer is that it is a mixed
question of law and degree of fact. The section also requires steps to be taken to
secure that the floor of the roadway is kept in such a condition that persons and
animals can tread it with reasonable safety and convenience.
126.
Cook v National Coal Board [1961] 1 WLR 1192 was a leading case on what
amounted to an obstruction and what did not. Lord Evershed MR beginning at the
foot of p1195:
“The second part of the case rests, in a sentence, solely on this:
was the rope in the position in which I have described it,
according to the judge's finding, an obstruction? It is not in
doubt that Sanderson v. National Coal Board, a recent decision,
supports the view that the language of these sections of the Act
of 1954 is strict. It is no answer to say, if this rope was an
obstruction, that it was not much of an obstruction or that it was
in some way excusable — apart from a possible' defence based
on section 157 that it was impracticable to get rid of it. I do,
therefore, approach the matter bearing in mind the view that
Parliament has thought fit to place these stringent obligations
on those responsible for the conduct of what is, after all, a
somewhat dangerous trade. But the word “obstruction” is one
15
16
Exhibited to Mr Morgan’s 1st statement
Exhibited to Mr Morgan’s 1st statement
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
of ordinary usage and has, I take it, to be applied in any given
case to the circumstances of that case.
“… in the case of Alexander v. Tredegar Iron and Coal Co. Ltd
[1945] AC 286 Lord Wright said in respect of the
corresponding duty under the Coal Mines Act 1911: “These are
things which have no right to be left on the road. They are
completely out of place. I put the stress of my opinion on the
word ‘ obstruction.’ ” ”
127.
In Jennings v National Coal Board [1983] I.C.R. 636 the Court of Appeal made it
clear that the whole width of a travelling road was potentially subject to the strict,
albeit not absolute, statutory duty to keep it free from obstructions and in such a
condition that persons could tread it with safety and reasonable convenience, subject
to the statutory defence that it was impracticable to avoid a contravention. This was
in contrast to the case argued on behalf of the NCB that only a designated walking
way should be covered. It can be seen at once that the duty in respect of safety of
roadway floors was more extensive than what was reasonable at common law.
128.
In summary, insofar as stumbling can be attributed to the presence of obstructions,
then the burden shifts to the defendant to show that sufficient steps were taken to
avoid their presence and that it was impracticable to take any other. Insofar as
complaint is made of the condition of the floor, the test is whether it could be trod
with reasonable convenience. Such test has to be in the context of what it was
practicable to provide by way of underground roadways in the workings, having
regard to the normal expectation of mineworkers using them and taking reasonable
care.
129.
I turn now to lighting.
130.
There is a generic allegation that the insufficiency of lighting, particularly away from
the Pit Bottom and major junctions, contributed to the described regular stumbling.
131.
There was an absolute duty to secure the provision of adequate lighting underground
under section 61 of the Act17. Consideration of the question whether at any given
17
61.— Lighting.(1) It shall be the duty of the manager of every mine—
(a) to secure the provision of—
(i) suitable and sufficient lighting (whether natural or artificial) in every part of the mine above ground in or
through which persons work or pass (account being taken, where lamps are normally carried by persons who
work in or pass through any such part, of the amount of light emitted by those lamps);
(ii) suitable and sufficient artificial lighting in every part of the mine below ground in or through which persons
work or pass, other than a part in which the installation of artificial lighting is inadvisable for reasons of safety or
is unnecessary because of the amount of light emitted by lamps normally carried by persons who work in or pass
through it or for any other reason;
(b) to secure that all apparatus installed at the mine for producing artificial lighting thereat is properly
maintained.
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
time or place artificial lighting was practicable has to depend on a detailed
investigation of any reasons why, in any given part of the mine, the installation of
artificial lighting may have been inadvisable whatever reason, for example for reasons
of safety; of why it may have been impracticable at any given time further inbye to
provide artificial light other than that emitted by lamps normally carried by persons
who worked in or passed through.
132.
I turn to the likely issues surrounding availability of equipment or apparatus to reduce
the risk of injury from heavy lifting, accumulation of debris on the face and to protect
the knees.
133.
In this respect there was an absolute duty to secure a sufficient supply of materials,
equipment and apparatus under regulation 2 (Managers and Officials Regulations)
raising similar issues in relation to what was practicable and impracticable.
134.
In addition, it will be necessary to consider the duties at common law in relation to the
other allegations of negligence against issues of what at any given time may have been
reasonable to achieve against the balance as between safety of the mine and its
personnel on the one hand and the technical knowledge and resources available to the
NCB/BCC. To a certain extent, I should expect a mining engineer to be able to say
what could be done in given circumstances and at a particular time within the 40 year
time frame of this litigation. The difficulty arises, however, when that is translated
into examining whether at any given time there was failure to take reasonable
precautions to avoid the risks associated with repeated minor trauma which to a large
extent is likely to depend on recalled fact where possible.
135.
I now examine the effect of the evidence given to me by and on behalf of the 8 lead
claimants in terms of the potential for establishing breaches of duty. I shall be
examining the potential evidence both for the purposes of considering the individual’s
case in respect of its cogency and at the same time as to how it impacts on the generic
issues.
136.
Ceiriog Lewis was employed at Blaenant Colliery as a boy collier in 1953. He had a
successful career with the National Coal Board ending up as Colliery Overman in
1982 until his retirement in 1987. He is an impressive man with a good recall of his
working conditions over the years of his relevant employment at Blaenant. I found his
evidence in general to be reliable so far as it can be after so many years.
137.
His main areas of complaint, so far as can be relevant to his knee arthritis, concern the
walking conditions, the heavy lifting, the confined working height on the face with the
need to work on his knees and the generally wet conditions.
(2) Provision may be made by regulations for requiring the provision and maintenance, at such places at a mine
as may be prescribed, of such lights as may be prescribed; but nothing in regulations having effect by virtue of
this subsection shall be construed as being in derogation of the general obligation imposed by subsection (1) of
this section.
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
138.
As from 1956 when the Mines and Quarries Act 1954 came into force, walking
conditions away from the coal face were subject to the strict statutory duty imposed on
the Manager under section 34. The relevant descriptions by Mr Lewis were as
follows: walking inbye and outbye to and from the face was often like walking on a
river bed, because the conditions were so wet – a possible breach of section 34(1)(b)
alleging that the floor was not kept in such a condition that persons or animals could
tread with reasonable safety and convenience –; regularly there was coal rubble on the
floor that fell out of the drams – potentially the rubble could constitute an obstruction
(section 34(1)(b)). He further described squeeze of the road sides, by comparison
reference to photographs. It was unclear to what extent there might have been
breaches of duty in this particular regard, but if such as to reduce the height
significantly, this could engage section 34(1)(a), albeit not relied on. Similarly he
spoke of having to walk in roads where the height had reduced to about 5 foot 6
inches on 25 District in the 1960s. He described squeeze or heave as the consequence
of the ground or strata naturally moving. He spoke of drams becoming derailed and
the absence of rerailers – this could engage regulation 2 of the Managers and Officials
Regulations. He specifically recalled one incident of having with others to drag a
heavy steel pan section up a steep incline, only to have it slide all the way back down
again. His solution would have been to have a system of compressed air or ‘blast’
haulage to haul such items up the incline. The absence of such a system could engage
the same regulation 2, if that was the only way of achieving the men’s safety.
139.
In due course he became a Deputy (7th January 1965). He recalled the gate road for
30 District, having its sides squeezed to the extent that drams could not pass through.
He did not say whether this was unavoidable, for how long that lasted or what steps
were taken in the event to remedy the situation. 30 Face, he said, was really wet, so
that the men tended to walk the tail road because it was easier. 34 and 36 Districts
had progressed to power loading, but there were no flushing shields on the hydraulic
chocks, so that material from the falling waste behind the face as it progressed tended
to ‘flush’ into the chocks, obstructing the way through them. This could engage
regulation 2.
140.
He referred to a problem that arose from time to time, that the ripping lip fell further
back from the face resulting in a longer distance over which supplies, such as
hydraulic props, bars and girders, had to be carried in.
141.
He described walking into the Districts from the Cefn Coed shaft as “OK” for the first
200 yards because no coal was transported through that section, but after that walking
conditions were similar to Old Blaenant. Similarly, the aim would be to engage
section 34(1)(b).
142.
In 1980 Mr Lewis was appointed acting Colliery Overman and in 1982 a full time
Colliery Overman. Interestingly, he then became responsible for carrying out the
statutory duties under the Managers and Officials Regulations on behalf of the
Colliery Manager.
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
143.
Each of the lead claimants who became officials, Messrs Lewis, Hathaway and
Hughes, described how they were very much ‘hands on’ and would do their fair share
of the work that had to be done by the men.
144.
Turning to more general terms, Mr Jay came to this point in his cross-examination of
Mr Lewis.
Q. … Can I ask you this more general point? You describe in
your statement or give us a general impression of -- you
described it yesterday – walking as if it were through or along a
river bed and, on occasions, stumbling and tripping. That's
right, isn't it?
A. That's right.
Q. But you can't recall any specific occasion, can you, at this
distance?
A. Only slipping, stumbling and falling. It happened so often,
though, I can't ... Slipping and stumbling and falling, your
Honour, was the highest cause of accidents underground that I
know of from 1968 to 1975. I was on the safety [committee] in
Blaenant of Great Britain and we won it in the Cafe Royal in
London, and that was always the biggest cause of accidents
underground
Q. Would you accept this general point, Mr Lewis, that some
of those accidents could have been due to what might be
described as avoidable neglect? In other words, fault on –
A. Yes, they could have been.
Q. Others could be just the unavoidable consequence of
working in an old coal mine?
A. It could have been.
Q. Yet others could have been down -- I'm not suggesting this
applies in any particular instance -- to lack of care by the miner.
So there are three possibilities which could apply in any case?
Would you agree with that?
A. Yes, I'd have to agree with that. The trouble was, you'd be
reporting that the road wanted clearing. If the manager didn't
give you the men on your shift or any other shift to do it, it
wouldn't have been done.
Q. Yes. Let's just take that point and assume you're absolutely
right about that in that the men were not provided. Let's
assume you're right for the purposes of this argument. But we
don't know at this distance in time -- and we could never know
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
-- whether the fact that men were provided or not provided was
simply due to failure on the part of the employer to make
sufficient men available or the fact that, on a particular day,
there just weren't enough men available. We don't know that?
A. Yes, I agree with that, yes.
145.
These particular answers have some significance to the exercise of my discretion
under section 33 of the Act, where that arises, not only in respect of Mr Lewis’ case,
but also with regard to all the lead claimants. Further, I have to consider their generic
significance.
146.
First, Mr Lewis gave a realistic assessment of the three possible causes for individual
non-traumatic incidents, which is plainly applicable generically to this litigation.
Second, it is of interest to note that he was giving his answers from the point of view
of an official. I formed the view that entirely understandably he was probably drawing
on his recollection of his most recent working life.
147.
Much of the evidence of the remaining lead claimants covers similar ground. This
was why counsel for claimants and defendant alike took more time with Mr Lewis in
examining how much he would be able to recall for the purposes of establishing at
least a prima facie case in breach of duty.
148.
Nevertheless, I highlight some of the features to which the remaining lead claimants
referred, in order to examine, in particular the potential cogency of their evidence.
149.
I take Mr Hughes next, since he also worked at Blaenant and became an official,
Deputy then Overman. I did not find him as impressive a witness as Mr Lewis. I
thought he had a tendency to exaggerate the working conditions: for example, he
described them as “totally terrible” and how the roadways were “never maintained”. I
do not, for the present purposes, criticise him particularly in this respect. I anticipate
that among the group of claimants there will be others who find it easier to use
emphasis to describe their working conditions. The effect of such emphasis plainly
concerns the ultimate reliability of the evidence given by the individual and the weight
to be attached to it. For the purpose of exercising discretion under section 33,
however, cogency is more concerned with the potential of the evidence rather than
second guessing its reliability, particularly where limitation is being considered as
here in the context of a preliminary issue with a lead claimant. Thus, the fact that I
might consider the evidence of one lead claimant potentially to be less reliable than
that of another would give no assistance to the management of the group litigation as a
whole.
150.
With regard to potential breaches of duty, Mr Hughes also described the accumulation
of stone and materials on the roadways, which could have constituted obstructions
within section 34(1)(b); his description of the excessive water could engage the same
section in relation to the condition of the floor. Similarly, his description of sloping
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
sides and debris, for example in the supply roads to the Districts could engage the
section.
151.
Mr Hughes did not volunteer any particular reasons that lay behind the conditions
which he described, but it is reasonable to assume that he and his fellow official
claimants agree broadly with Mr Lewis’ assessment.
152.
Occasionally, he said, a defect was so serious that he would bring it to the attention of
the manager or under-manager.
Q. All right. In paragraph 388, while we're on this page, you
say: "Occasionally, a defect would be so serious that I would
specifically bring this to the attention of the manager or
undermanager." Are we talking there about when you were a
deputy or overman?
A. I think it's deputy, not overman.
overman.
Oh, it might be an
Q. Can you remember a defect which was so serious that you
specifically brought it to -A. I can remember a few. There was something every day.
Q. But just give us an example.
A. A roof fall. Low heighth. A rail could be loose or anything.
And then you'd tell the manager and he'd try and do it, but if he
hadn't got the men, he won't do it.
Q. I just want to understand the gist of your evidence. Is your
evidence that a serious defect was usually attended to by
managers?
A. It all depended what it was. If it was life-threatening, yes,
but if it wasn't life-threatening it was left alone.
Q. But is it your evidence that it was left alone for an indefinite
period or is it your evidence that it was eventually attended to?
A. It might have been attended to a couple of weeks later. It all
depends on the men. If they haven't got sufficient men, they
won't do it. Coal was the production. All they were concerned
about was getting the coal out.
Q. Are there any specific examples, distinctive examples,
which stick in your mind which you could tell us about?
A. Such as what?
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
Q. You, for example, seeing a serious defect, you mentioning it
to a manager and that defect being ignored or attended to or
whatever?
A. I can't put anything to mind, but you write up a report, you
tell the manager or undermanager and then it's up to them to
carry on then.
Q. Okay. You do mention a specific occasion, but in a slightly
different context in paragraph 390, Mr Hughes, where you
recall a particular instance which showed the general attitude of
management towards the welfare of the men: "When the men
were driving the New Drift road leading down towards the 106
district, the roadway was always very cold. On one particular
occasion, the men complained to the colliery manager, Mr
Griffiths, about the cold. His response was to call them into the
lamp room, hand them a shovel and tell them to shovel harder
so they would keep warm."
A. Yes.
Q. Just a couple of points about that. Can you remember
approximately when this was?
A. When Mr Griffiths was there. I don't know. Mr Griffiths
finished and Mr Jones took over. I can't give you a date.
Q. I didn't ask for that, Mr Hughes. I tried to ask a realistic
question. Approximately when was this?
A. It might have been the 80s. It must have been.
Q. Could it have been in the 70s, are you sure it was the 80s?
A. No, in about the 80s, I'd imagine.
153.
In my view, this evidence coupled with that of Messrs Lewis and Hathaway is relevant
to the consideration of the extent to which other officials, whether of similar status or
senior to them, at this time could be expected to address the reasons for the existence
of conditions that may have resulted in minor trauma.
154.
Mr Hughes was specific in relation to 111 District which he described as the worst in
which he had worked. By this stage he was District Overman reporting directly to the
Manager and Under-Manager. Mr Hughes expressed the strong view that this face
should have been shut down shortly after it opened. His description was of a friable
roof which plainly caused problems of roof security. He had many disagreements
with senior officials as to how this face should be worked. There were plainly many
geological problems with this face.
His Honour Judge S P Grenfell
Approved Judgment
155.
Miners’ knee group litigation 7LS50038
Mr Hathaway worked at Penallta Colliery in South Wales. His description of walking
conditions is summarised in this response:
“from the pit bottoms into the districts, which was a
considerable distance, it was very dark, very dusty, and in
numerous places, very low and always debris and everything
underfoot.”
156.
He was able to refer to a number of photographs largely of supply roads in Penallta,
which illustrate travelling conditions as they were when the photographs were taken
and which he says represented prevalent conditions. They demonstrate heavy
weighting of the roof and floor lift, restricting height and width of the roads.
“The problems we had in Penallta was very heavy weighting on
the roof, and very bad lifting of the floor. As I said, once the
district had gone in 50 or 60 yards, these conditions started to
come in straightaway.”
157.
He also spoke of long distances which they had to walk into the Districts and
described the walking, kneeling and heavy lifting as all part of the job. Apart from the
fact that Penallta was a dry colliery, his description of working and walking conditions
was similar to those of Messrs Lewis and Hughes.
158.
Mr Smith worked largely at Brookhouse in South Yorkshire, Westthorpe and
Highmoor Collieries, in Derbyshire as a pipe fitter, becoming a trained face worker in
1969. His work involved a lot of walking. One of the features he particularly recalled
was the uneven placing of sleepers in the tracks along which they had to walk. This
could engage section 34(1)(b) in terms of the condition of the floor. He described the
buckled road supports and steep gradient in 41s tail gate, which significantly reduced
the height for walking (potentially covered by section 34(1)(a), but not relied on). In
addition, he had to carry heavy pipes over distances of up to 100 yards.
159.
Mr Hickin worked at Shirebrook Colliery in Nottinghamshire. He recalled roads with
tracks that were not ballasted correctly, again potentially engaging section 34(1)(b) in
respect of the condition of the floor. He was not alone to complain about the
inadequacy of lighting. In common with all the working conditions described by the
lead claimants away from the Pit Bottom and junction areas, lighting was by cap
lamps only. Insofar as he described inadequate artificial lighting, that would be
covered by the absolute duty under section 61(1) and would also engage regulation 2
of the Managers and Officials Regulations. His recollection was that management
was slow to do repair work such as back ripping to remedy restricted height and width
of roads caused by weight on the rings (arch supports) and floor lift. He made
reference to the need for a monorail or tugger so that the distance over which heavy
materials had to be carried could be reduced. This could engage regulation 2.
160.
Moving North to the Durham coalfield, first Mr Bell described his work in Vane
Tempest Colliery as a conveyor attendant, which required him to patrol the conveyors
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
that ran in the roads. He described floor heave nearer the face and the track sleepers
being particularly bad. He also worked as a spare man on the face and later in
advance headings working with EIMCO and DOSCO machines. No specific
conditions in the advance headings apart from the inevitable accumulation of some
debris from the working of the headings would appear to be relied on terms of breach
of duty.
161.
Mr Thompson worked in Wearmouth Colliery on pipe and pump maintenance. He
described the roads being damp and slippery, potentially engaging section 34(1)(b) in
relation to the condition of the floor. He was able to recall by way of contrast the
stentons (cross roads) in which the floor conditions were relatively good. He
described an intake roadway that was “really bad” with old track and rubble,
conditions which potentially engage section 34(1)(b) in terms of condition and
possibly obstructions. He also had to carry pipes over distances up to 100 yards,
possibly engaging regulation 2, should it be said that some form of mechanical
equipment could have reduced the distances over which heavy materials had to be
carried. He recalled similar working and walking conditions in the Busty Seam, in
particular the Main East Drivage, although it was drier. He made specific reference to
the fact that fixed lighting inbye was only at junctions.
162.
Mr Davison was an electrician who worked underground at Boldon Colliery. I regret
to say that I also found his evidence generally less helpful. His answers with regard to
the possible effect of sporting injuries, particularly the March 1984 knee injury, in my
view, were less than frank. There was a serious and, in the end, an unexplained and
irreconcilable inconsistency between his claim, on the one hand, to have given up
playing football in 1982 and the clear documentary evidence in the form of medical
records, an insurance claim and benefit claim records. I shall return to this aspect of
his evidence when considering his state of knowledge and the exercise of the section
33 discretion generally. He also fell into a similar category of witness to Mr Hughes
when he described walking conditions as “terrible” and “horrendous” without being
specific. I am prepared to accept that the root problem was the huge difficulty of
having to cast his mind back 20 years and more. He plainly experienced a similar
difficulty in being able to recollect more specifically the conditions in which he
walked and worked and plainly had no recollection of what was done to address the
conditions he could recollect in more general terms.
163.
In his written statement Mr Davison said he never saw any efforts to keep the
roadways clear.
164.
One feature which is specific to Mr Davison’s case is that as an electrician he was
occasionally sent to deal with pumps in the old workings or returns. This was an old
colliery which had been worked since the late 19th Century. These old workings
comprised an important means of ventilation, which was why he had to go there. He
described the conditions there as being such “that you’d get used to” but they were not
good. In addition, there was a considerable amount of walking to get to these old
workings. Because they were old workings, as I understand his evidence, walking
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
conditions were “horrendous”: the old roadways were covered with stone and debris
and he sometimes had to stoop because there was a lot of subsidence.
165.
Mr Davison does address in general terms the reasons for these specific conditions,
namely because they were old workings. Plainly these old workings had to be visited
only by men concerned with maintaining their use for ventilation. What he cannot
deal with is what, if any steps, could have been taken to make his access any more
convenient. There may well be an issue whether section 34 applied to these old
workings, but that was not explored before me.
166.
In 1982 Boldon closed and Mr Davison moved to Westoe. He was engaged in the
installation of an advanced signalling system for some 2 years, which involved a lot of
walking. The walking conditions he described as “quite slippy” because it was very
damp to the extent he had to wear Wellingtons. Then he stayed on the installation
maintenance and doing routine conditioned monitoring. Again, the reasons for the
wet or damp conditions might well need further exploration. Mr Davison could not be
expected to provide any.
167.
By way of example, I suppose from what I have heard that it might be possible to
adduce evidence that over a particular period of time a particular roadway was
constantly in such a condition that persons could not tread it with reasonable
convenience – in other words a continuous breach of section 34(1)(b) MQA. Then, if
a man can prove that he was walking that roadway on a daily basis and for how long,
then the question of whether that partly contributed to the development of his knee
osteoarthritis could be examined, among the many other possible factors and causes.
In such circumstances, it might be possible, therefore, to reach the stage of
demonstrating a breach of statutory duty over such a period that it could have
contributed to the development of the disease. However, such a case requires
evidence to defend, in particular, as to why that roadway was in that condition,
whether or not steps could have been taken to prevent the breach. In other words such
a case requires an examination with the witnesses what the reasons were for the
conditions and why steps were not taken to alleviate them. This is where the most
recent recollection of witnesses could assist, but where they are increasingly less
likely to be able to assist the longer the time that they have been away from the mine.
168.
There is one specific matter that Mr Hughes referred to which illustrates the
difficulties in this litigation. He said that they should have closed 111’s Face sooner
than they did, because of the conditions encountered in working it. That is all very
well as an assertion, but it requires an examination of all the considerations that went
into keeping it going. In fact this covered a period close to the end of his working
career and, if witnesses had been able to be asked about it nearer the time, they might
have had some chance of considering such detail. The chances of that happening now,
even if the witnesses were available, in my view, must be diminished. A case simply
based on a claim that it was negligent to keep a face open would create huge
difficulties now in proving such a case and in defending it.
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
169.
This illustrates, in my view, why the last years of employment assume importance in
this litigation. Whilst it was always going to be difficult or near impossible for
witnesses, in particular, those on which the Department would wish to rely, to recall
the reasons for the conditions described and what steps were taken in that regard, yet it
would have been easier for anyone to recall such matters soon after ceasing work in
the industry. The longer a person is away from it, the harder it becomes to recall the
specifics. The evidence of the lead claimants demonstrated that.
170.
Post-limitation delay, therefore, in my view, is likely to have had a serious impact on
the cogency of the evidence.
Documentation and Evidence
171.
It is right to observe that many documents in the form of various reports which were
required under the MQA have been found on Colliery Disclosure. For example, 142
section 123 Workmen’s Inspectors’ reports or consultative committee minutes have
been disclosed from Shirebrook covering the period 1975 to 1988, many of which
make reference to working conditions. These and the various documents listed by Mr
Dray in his 2nd statement, are the kinds of documents which tended to reflect ongoing
concerns with regard to safety in general and, in particular, travelling and working
conditions. However, without a reasonably detailed consideration by the people who
were working in those areas at the time and how such reports were addressed, these
documents can only go so far to create the kind of picture necessary to show a case of
repeated failures amounting to negligence and breach of statutory duty.
172.
This trial was an opportunity for both sides of the litigation to demonstrate so far as
possible the extent to which the cogency of the evidence to be relied on at trial was
likely to be affected one way or the other by the passage of time that has elapsed since
the various dates of knowledge.
173.
I do not think that the Department have done quite enough to bring senior officials
before the court to state their present recollections of such factors. In effect, whether
intentional or not, they have taken the gamble of being able to rely largely on
inference of prejudice. I accept Mr Morgan’s evidence for example that some retired
senior officials from Blaenant and Penallta collieries have been located without too
much difficulty. On the other hand, it is both clear from Mr Dray’s evidence that only
a handful of senior managers could in any event be found who could give evidence as
to how the various and complex problems of in relation to the safety and reasonable
convenience of the underground workforce was tackled over the years.
174.
The kind of picture which might inform the way in which such matters had been
tackled over the years, might have emerged from descriptions given by mineworkers,
junior officials and senior officials over, say, the decade of the 1980s. This might
inform the court as to the reasons for various conditions of the kind that could
predispose to knee osteoarthritis and the extent to which they were properly addressed
or otherwise. The court would need enough evidence to form a balanced view of
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
whether it is more likely than not in the case of an individual mineworker that he was
exposed to unnecessary and avoidable risk of long term injury to his knees.
175.
However, the more I have heard, the more convinced I have become that it would be a
tall order to expect anyone to recall sufficient detail to explain whether conditions
were avoidable at any given time, or, if they were, what was done to remedy them and
how quickly it was done once the conditions emerged, and what features impeded the
remedying of conditions.
176.
The real difficulties are that people would be expected to recall details after many
years of retirement; that it is extremely difficult for any given person to say how
much, and if so what, he could recall whilst he was still working. These real
difficulties obviously would be the greater the further back in time that the court had
to go. However, that is not so much my concern. As I have indicated, it seems to me
that, if the court were able to concentrate on the 1980s, there would still be
considerable difficulty for the court to determine what was practicable and what was
not practicable in addressing the everyday conditions of underground mining.
177.
Without reasonably comprehensive factual evidence, expert engineers can only do so
much to address the duration of conditions described or as to what steps were in fact
taken or should have been to remedy the various situations that affected those walking
and working conditions. I cannot see expert mining engineers being able to do much
more than give generalised opinions as to whether more could and should have been
done to address the difficult conditions that were plainly part of underground coal
mining over the various periods under consideration in this litigation.
178.
A reading of the various reported cases relating to specific incidents of breach of duty
illustrate the complexity of determining whether or not avoidable or unavoidable
breach of duty caused the state of affairs that was responsible for a given incident.
The more so is that a valid proposition where there is reliance on a case that all of a
particular continuing state of affairs was avoidable in respect of several different
potential contributory factors in the development of osteoarthritis.
179.
In terms of the cogency of potential evidence on breach of duty, for the reasons I have
given, I do not in the end find sufficient distinction between the cases of the individual
lead claimants. This is because their specific complaints in respect of their conditions
of work raise similar evidential problems.
180.
Investigating any single incident which might be alleged to have caused traumatic
injury after all these years would be extremely difficult. That would be so even if
witnesses had a clear recollection of what happened and could give a good description
of the condition of the working area, because the reasons behind the conditions might
or might not explain whether those conditions were avoidable or not. The cogency of
such evidence would be adversely affected by the passage of time. The investigation
of conditions that were not highlighted at or near to the time in terms of any particular
incidents is necessarily more difficult, simply because the relationship between
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Miners’ knee group litigation 7LS50038
repeated knocks and strains to the conditions underground has not been highlighted
until many years later.
181.
The claimants’ case is, however, that it is sufficient to show that conditions
underground were such at any given time as to have been the likely contributory cause
of the gradual development of knee osteoarthritis in these and other claimants; that it
should be possible for the court to draw its own conclusions as to the likely
apportionment as between unavoidable and avoidable minor knocks and stresses.
182.
I am prepared to accept that each of the lead claimants can give a general picture of
what his walking and working conditions were like; that there is likely to be sufficient
evidence to show at any given time where each man was working, what stage the
particular district had reached and approximately how much walking he would have
had to do in order to go to and from his place or places of work. I do not criticise any
for being unable to give specific evidence about walking and working conditions. I
formed the clear impression that each of these men probably accepted that they were
working in an industry which necessarily involved regular and long distances of
walking over rough surfaces, manhandling heavy loads, working in confined
conditions, in particular on the coal face or in a heading, often on their knees, and
frequent minor knocks, some of which would be reportable injuries in the sense of
requiring some level, if only minor, treatment at the colliery – I was referred to several
examples of such injuries having been reported –, and some of which would not be
regarded by the man as an injury at all.
183.
It is clear to me that the claimants face a number of factual difficulties in showing that
the conditions in which each man walked and worked at any given time during his
career underground were the result of a breach of statutory duty, still less the result of
common law negligence, and so were avoidable at that time. Were I to be considering
the question as at the times when each of these lead claimants had knowledge for the
purposes of section 14(1) of the Act, I might have said that many such difficulties
would have existed then. Section 33, however, is clear, as Mr Allan rightly submits
now, in that it requires the court, when considering the cogency of the evidence to be
relied on, to take account of any reduction in cogency that results from the delay
between date of knowledge and the likely trial date.
184.
So it is that Mr Jay, on the one hand, argues that I should infer from the periods that
have elapsed from the date of knowledge in each case that there must be additional
prejudice to the Defendant in having to make its investigations as to breach of duty
and causation so many years later. He argues that the delay in itself is sufficient to
show prejudice, simply because as factual witnesses grow older, then necessarily their
memories will have dimmed; that this is particularly important not so much for
recalling the actual conditions themselves, but rather for recalling the reasons for
those conditions, in particular, whether they were or were not avoidable.
185.
However, he also submits in terms of the broad merits test that where there have
always existed serious problems in respect of proving a claim, that can and should be
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
taken into account when considering post limitation period prejudice and reduction in
cogency of evidence.
186.
Mr Jay submits that what the claimants in this case are setting out to establish is in
many ways different to those earlier group cases which largely depended on
establishing exposure to excessive noise, vibration or dust, all of which could be
shown with the assistance of expert evidence to have been avoidable once the dangers
from excessive noise, vibration or dust were appreciated by the employer.
187.
Mr Allan, on the other hand, submits that the reality is that any difficulties that face
the parties now in determining what was or was not avoidable are no worse today than
they would have been had there been enquiry into such matters as at the date of
knowledge in each case. He submits that the present cases are entirely analogous to
any industrial disease case and present no greater or less manageable difficulties. He
and Mr Bowley have demonstrated an impressive array of documentary information
which can supplement the equally impressive, albeit necessarily and largely general,
recollections of each of the lead claimants as to the conditions in which they had to
walk and work underground; that expert evidence will be deployed to opine as to what
conditions were or were not avoidable; as to whether the unavoidable conditions could
have been lessened to an acceptable level of risk in terms of exposing individuals to
stress on their knees.
188.
Mr Allan strongly criticises the Department for not investigating sufficiently the
potential witnesses of fact, who might or might not have said whether or not they
found it more difficult now to recall the factual background of the conditions
complained of than they would have found it, if they had been asked to recall such
matters in the late 1980s or early 1990s. For example, it is now clear from Mr
Morgan’s evidence that under-managers, Rees and Bradley, made short witness
statements in 1992, so far as I can tell, to BCC. However, their statements only really
establish the conditions rather than the reasons for them and what could or should
have been done, if anything, to alleviate those conditions. There is no evidence that
they have applied their minds to these latter questions in the intervening years or if
they have whether they are able to provide an expert with sufficient information with
which to give an opinion on the issues of liability raised.
189.
In my judgment, there is an air of unreality about these submissions. Most if not all
witnesses of fact give evidence as to their present recollection and would find it
somewhat artificial to give evidence as to what their state of recall was some 15 to 20
years ago.
190.
I do not find it particularly remarkable that miners can remember today what their
working conditions were like in general terms many years ago, but it is a tall order to
expect them and those of various management levels to recall the various possible
reasons for such conditions at any given time spanning several years, particularly
when asked to do so many years after any such witness has ceased regularly to work
underground; when the specific conditions were unremarkable in the absence of any
accident as such in terms of the conditions which prevailed in underground work.
His Honour Judge S P Grenfell
Approved Judgment
191.
Miners’ knee group litigation 7LS50038
It may be possible to deduce from colliery dust records and the colliery plans where a
face, roadway or development had reached at any given time, but that is likely to be
only part of the necessary picture.
The Chance of a Fair Trial
192.
Is the chance of a fair trial any the worse now than it would have been in the late
1980s to early 1990s? This is the key question at this stage. The greater the distance
in time between the time when the witnesses were actively engaged in coal mining
and the present, can it be said that the evidence will be less cogent than it would have
been, if proceedings had been commenced in any given case at the deemed date of
knowledge? In this respect I have no evidence from witnesses other than the 8 lead
claimants themselves, albeit that they do lend some factual support to each other’s
case.
193.
However, even recollections of specific incidents such as, in Mr Lewis’ case, the
sliding pan section incident show that, whilst it is relatively easy to recall a
memorable incident, the difficulty comes when the reasons for that particular state of
affairs are considered: why were there no mechanical means of manoeuvring this
piece of equipment up the gradient? Would it have been practicable to provide such
means? What consideration was given by the junior officials as to how this task
should be tackled? Was the task, given the men involved, beyond their capabilities?
How did one man come to lose his grip? In short, was this an avoidable incident,
because some mechanical means should have been used, or because one man did not
take sufficient care? Similarly, as each lead claimant was asked to recall actual and
recorded accidents, he had only the vaguest, if any, recollection of the circumstances.
Other Employers’ Disease Litigation Compared
194.
18
I return to the issue raised as to whether this litigation is properly comparable to other
employers’ disease litigation. I have already touched on some distinctions, but it
seems to me that the nature of the disease in question, knee osteoarthritis, creates the
following difficulty. It is “not a single disease process. Rather, it is the end point of a
complex process that may be initiated by a single factor or multiple factors.”18 It is a
condition that results from the effect of several entirely separate facets of underground
working that is likely to have materially contributed to the disease in the case of each
lead claimant. The enquiry, therefore, as to which conditions were avoidable and
which were not has to cover each of those facets. In relation to each, assuming that a
claimant can show that on the face of it the conditions which he faced, more likely
that not, were avoidable, then the defendant has to demonstrate why, more likely that
not, they were probably unavoidable. However, that exercise has to be carried out in
respect of each of the various aspects of work underground which could have
contributed to the knee osteoarthritis.
orthopaedic experts’ agreement.
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
The Reasons for the Delay
195.
I turn briefly to the evidence as to the reasons for the delay through the 1990s and
early 2000s and the part played by the various unions during that period. I have
already considered the relevance of that part in the general reasons why the present
litigation was not launched earlier. For the sake of completeness I add that it is clear
from Mr Morgan’s evidence that there was an attempt to link knee osteoarthritis to
working conditions in the early 1990 which came to nought. I do not consider it right
for me to speculate as to the reasons why that was so, nor as to why this litigation was
not pursued until much later. I am prepared to accept that funding difficulties have
contributed to the end date by which the majority of the lead claimants came to be
involved. However, in my view, that does not and cannot detract from the effect of
the time lapse on issues of cogency.
The Relevance of Conditional Fee Agreements
196.
I have no hesitation in relying on the reasoning given by His Honour Judge
Hawkesworth QC in Clack (Rolfe deceased) v Thames Television Ltd (unreported 25th
May 2004 High Court HX350013): the fact that a defendant as a result of limitation
delay is faced with a claim funded by a conditional fee agreement which would not
have been the case had the claim been brought within the limitation period and is as a
result exposed to an increase in potential costs is not a factor which can legitimately
be weighed in the balance in the exercise of section 33 discretion.
197.
The Question of Proportionality
198.
Whilst I am clearly not required to consider quantification of potential damages in any
detail, I do need to address one argument raised on behalf of the Department, that in
terms of the potential awards of damages after apportionment the sums involved are
likely to be relatively modest. It is argued that this is a factor which falls to be taken
into account in the equation of section 33 discretion.
199.
Insofar as an individual has demonstrated a permanent level of serious disability, I
should discount proportionality as a factor to be taken into account. There are
potentially other considerations with regard to some of the lead claimants which I
propose to address in this regard.
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
The Individual Lead Claimants, their Dates of Knowledge and the Exercise of section 33
Discretion
Ceiriog Lewis
200.
Mr Lewis is 72 and worked at Blaenant Colliery in South Wales most of his working
life apart from a spell in the Welsh Guards. His claim covers the period 1954 to his
retirement in 1988.
201.
It was in the mid 1960s that he first had knee problems. He first suffered from what
was known as ‘beat knee’, a transient condition, which he thought ceased after the
introduction of knee pads. He was asked about an entry in October 1965 referring to
an accident involving left knee and hospital attendance, but he had no recollection of
it. He did recall an incident in 1968 on 34 District: he was crawling on the face when
he suffered a sharp pain. He was told that he had damaged a cartilage and had a right
menisectomy. He continued to have problems with his knees and saw his general
practitioner but was advised there was nothing seen on X-Ray. By the mid 1970s he
suffered severe pain and discomfort, particularly walking. However, his financial
situation was such that he could not afford to give up work. There was an arthroscopy
in 1987, but the difficulties with his knees were such that he asked to take redundancy
at the age of 50 the following year, 1988.
202.
Mr Lewis suffers from osteoarthritis of both knees with the left worse than the right.
The osteoarthritis in the right knee was diagnosed in May 1985. The osteoarthritis in
the left knee was diagnosed in November 1990. Mr Lewis has a meniscal tear and in
March 1968 he underwent a right total medial meniscectomy.
203.
The expert evidence credits constant pain within both knees with the left worse than
the right and also night pain in the left knee. He has difficulty with bent knee
activities such as kneeling, crouching or squatting and is also complaining of swelling
on both knees. His walking distance is limited to 250-300 yards using a walking stick
on a flat surface.
204.
The experts conclude that Mr Lewis first developed symptoms of osteoarthritis in the
right knee in 1985 and in the left knee in 1989; that he has osteoarthritis of both knees.
They have set out the factors that contributed to the development of osteoarthritis and
also resulted in an acceleration of the progression and symptoms of this condition; that
Mr Lewis’ work as a miner which involved heavy repetitive load bearing in bent knee
activities and also walking on rough ground will have predisposed him to the
development of osteoarthritis within his knees; that the 1968 meniscectomy in the
right knee will be a causative factor with regards to the development of osteoarthritis
within that knee; that his increased weight in later life would be a factor involved in
the acceleration of the osteoarthritis within his knee; that the infection within the left
knee in 1990 is also a factor that could cause acceleration of osteoarthritis in the left
knee. They disagree only as to whether there was a mild constitutional predisposition
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
to the development of osteoarthritis. Professor Moran believes that there is a mild
constitutional predisposition; Mr Bickerstaff believes there is none.
205.
There may be some issue as to the causative relevance of the meniscal tear in 1968
and whether that amounted to a major trauma at the time.
206.
Mr Lewis contends for a date of knowledge in 2007. Since he brought his claim in
2008 it would not be barred by section 11 of the Act.
207.
Mr Lewis first began to suffer problems with his knees in about 1960, mostly at that
stage concerning beat knee. He believed that the problems of beat knee were due to
his working conditions, but they stopped when he started wearing knee pads. In 1968
he suffered the torn meniscus. At the time he wondered whether this might have been
caused by work in the mine19.
208.
His evidence is that the doctors treating him for his knee problems did not tell him
that they were caused by his work in the mine at any stage. They knew he worked in
the mine. Nor did he specifically ask any of the doctors whether his work caused the
problems. His case is that he did not have actual knowledge until 2009, but it is
accepted on his behalf that he had constructive knowledge by 2007, only a year before
his claim was issued.
209.
In his statement20 he said that, if he had been asked which of his working conditions
had contributed to his osteoarthritis he would have said the damp wet conditions; that
there was a general belief among the older miners that excessive exposure to cold,
wet, damp conditions could cause rheumatism in the joints. It is of interest that in the
1950s and 1960s the term rheumatism was used to cover all joint pain, although it is
now clear that osteoarthritis and rheumatic complaints are different. It would be
reasonable to suppose that a mineworker would not distinguish in his mind the
different terminology for pain in his joints.
210.
Thus Mr Lewis’ evidence is that until he was contacted in 2007 by his Union he had
not thought anything could be done to seek damages in respect of his knees. In other
words, his evidence is that he relied on his Union telling him that such an avenue
existed.
211.
He was not told by anyone that his osteoarthritis in his knees was caused by his work
in the mine. He sums up his attitude towards this claim in his statement21:
“It must be remembered that mining was a hard and heavy
manual job and the men working in that industry were all used
to doing hard work and having occasional minor knocks and
19
paragraph 227 3rd statement.
paragraph 229 3rd statement.
21
3rd statement paragraph 232
20
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
bumps. It would never have crossed my mind at the time that
the pains I was having with my knees might form the basis of a
claim for compensation against British Coal. This is only a
view which I have taken since about 2007, when NACODS
informed of the possibility of such a claim.”
212.
It is necessary to examine his assertion that he did not attribute his diagnosed knee
osteoarthritis to his work underground in more detail. In the 1980s he was under the
care of an orthopaedic surgeon Mr Lake. By November 1988 Mr Lake was reporting
to his general practitioner that the 1987 operation had essentially failed and that he
had severe mechanical symptoms. There is a tension between Mr Lewis’ statement22,
where he said he had a suspicion that there could be a link between his work on his
knee problems, and his oral evidence.
213.
In 1985 Mr Lake made the diagnosis of, and told Mr Lewis that he had osteoarthritis.
He had used the expression that his knee was “crumbling”. In oral evidence he said
that he took it to be that the cartilage had come out; that it never crossed his mind that
it was down to his work. Reminded of his statement which indicated a ‘suspicion’
that it might have been due to work, he said
“Yes, I did have an inkling of it, but nobody ever mentioned
that it was through my work. I would have thought that if
somebody was going to tell me about it, they would have told
me.”
214.
The operation notes of the 9th October 1987 on review by Mr Lake record ‘He can
now resume … work’
215.
By 1988 Mr Lewis knew he could not go back underground because of his knee
problems; he had stopped working because of his knee problems and was retired from
the NCB/BCC.
216.
He saw Mr Lake in 1989. Mr Jay relies on the mention of ‘wear and tear’ during that
consultation as an indicator of Mr Lewis’ actual state of mind as to the part his
working conditions generally may have played in the development of his knee
problems, particularly with respect to lengthy walking and working on his knees. I am
prepared to accept that a man of his upper body strength would not have associated
heavy lifting with knee problems.
217.
Mr Lewis accepted that Mr Lake could have used the phrase “wear and tear” to
explain what osteoarthritis was:
A. “It was wear and tear on the knees, which I took to be
through walking. Walking, that's what I took it to be.
22
paragraph 229 3rd statement.
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
Q. Walking where?
A. Anywhere. I done a lot of walking. I have three children
that I used to go out regular with them, playing with them and
what have you, and I took it to be the wear and tear.
Q. Right. But not walking in coal mines; is that right?
A. Nobody mentioned coal mines.
Q. I'm just trying to tie in this concept of wear and tear with
specific activities and you've told us you tied it in to the activity
of walking and walking a lot with your children. Have I
correctly understood your evidence?
A. Yes.
Q. But the question I then had for you was: what about walking
in coal mines? Because your witness statement is full of
references to walking in coal mines?
A. There's a lot of walking in coal mines, in water, where you
couldn't see. I'd taken that as well to be which had helped cause
the wear and tear.
Q. Yes. Exactly, Mr Lewis. And it wasn't just walking in coal
mines, it was also working on your knees a lot in coal mines,
wasn't it?
A. I didn't think that had caused my knees to be bad.
218.
The difficulty with examining a person’s state of knowledge many years later is that a
certain amount of hindsight is inevitable. Mr Lewis, counsel and I have to try to
distinguish between hindsight and what was more likely than not to have been his
state of mind. It is reasonable to assume that Mr Lake’s and any competent
orthopaedic consultant’s expert knowledge in the late 1980s, as to the various possible
causes of osteoarthritis in the knees, would have been broadly in accordance with that
of Mr Bickerstaff and Professor Moran today. It is clear that Mr Lake examined many
mineworkers. He plainly will have had a good idea as to the conditions in which they
worked and walked.
219.
It is equally clear that mineworkers in the 1980s clearly understood that, if they
sustained an avoidable accident, which involved an injury which required treatment
however minor, potentially they could claim compensation in the form of damages;
that their Unions were highly experienced in helping to advance such claims. From
the evidence that I heard as a whole I deduce that mineworkers then understood the
concept that wear and tear in what was extremely heavy and demanding work took its
toll on them in one form or another, whether in the spine or other joints of the body.
Whatever Mr Lewis wishes today to attribute to his development of knee
osteoarthritis, I am satisfied that, when Mr Lake referred to wear and tear as a likely
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
cause of his knee problems, Mr Lewis understood him to be referring just as much to
his working life as to any wear and tear out of the mines that might have contributed
to his knee problems. In my view, this is the only sensible explanation for his not
asking Mr Lake in terms whether his work had in any way contributed to the knee
problems. Of course, I accept that Mr Lewis will also have associated the generally
wet and damp conditions at Blaenant as playing a significant part, because he had no
reason to distinguish in his mind the difference between rheumatism and
osteoarthritis. Further, in common with the majority of mineworkers at that time, Mr
Lewis, I accept, had no reason to suppose that wear and tear, whether or not made
worse by wet conditions, was likely to give rise to a claim against the NCB/BCC, in
the absence of advice from his Union. That is probably the main reason why he and
many others simply accepted the diagnosis and sought retirement, presumably on the
best terms possible.
220.
Nevertheless, whilst I do not think for one minute that Mr Lewis has in any way
sought to mislead the court, I cannot accept that he did not attribute his knee problems
to his work underground generally. I consider that he was specific in attributing them
only to the wet conditions, because those conditions happen to stick firmly in his
recollection. I am satisfied that he firmly believed that walking long distances,
whether above or below ground, could have contributed to his knee problems; that the
conditions for walking underground on his own description were worse. He had been
aware that his beat knee had been caused by working on his knees. It does not make
any sense that he should not have considered working on his knees as being at least in
part responsible of his knee problems.
221.
I find, therefore, that Mr Lewis had sufficient actual knowledge to satisfy the terms of
section 14(1)(b) of the Act that his working and walking conditions underground
generally could have contributed to his knee osteoarthritis by the time he saw Mr Lake
in 1989 at the latest; that he had a firm belief that the conditions of which he makes
complaint in this action had at least partially contributed to his knee osteoarthritis.
222.
For the sake of completeness, I also consider whether Mr Lewis had constructive
knowledge for the purposes of section 14(3) of the Act. On the assumption that he
had never discussed the possible causes of his knee problems with any medical expert
in the 1980s or 1990s and had simply attributed them to wet working conditions, I am
urged to find that he was ‘barking up the wrong tree’. The problem is that in the years
that followed the diagnosis of knee osteoarthritis in 1985, Mr Lewis wasn’t ‘barking
up any trees’. His evidence is clear that, if he had given it particular thought at the
time, he would have blamed the wet conditions. However, I am satisfied that in
reality he simply attributed his knee problems to the general conditions that were
inherent in his walking and working underground; that he was not specifically off
track in his state of mind.
223.
What is clear, however, is that whilst he was still a relatively young man he had been
diagnosed with a serious and disabling condition which was threatening not only to
render him unfit for his work, but also to require operative treatment and long term
pain and suffering. All that, in my view, was enough to seek at least expert medical
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
advice as to whether and how the conditions with which he was clearly familiar could
have contributed to his knee osteoarthritis.
224.
I can see why he did not seek such advice, but that is a factor to be considered under
section 33. He did not think there was anything to be gained at that time from doing
so. There was an abundance of facts about his walking and working conditions
underground which he had observed over the years, so that, even if he did not make
the connection between them and his knee problems, all that was needed to make that
connection was a simple question to a medical expert. For these reasons, if I had not
found actual knowledge sufficient for section 14(1)(b), then applying the law as I have
held it to be, I would have found constructive knowledge under section 14(3).
225.
It follows that I find his date of knowledge for the purposes of section 14 to be 1989 at
the latest; that, therefore, his action is barred by the terms of section 11 of the Act; that
his case does require consideration of the section 33 discretion.
226.
The delay in making a claim is some 19 years, some 16 years longer than allowed by
the Act.
227.
The main reason, as I accept and have already found, why Mr Lewis did not make a
claim before 2008, was that he had given no thought to claiming in respect of his knee
osteoarthritis until he was advised by his Union in 2007 that he could make such a
claim as part of this group litigation. I accept that there were personal reasons why,
particularly, in the early 2000s he did not give any thought to his own disability,
namely his overriding concern for his wife’s health. Having seen and heard him, I am
not in the least surprised. That perhaps explains also why he, as an active Union man,
did not involve himself with Union matters and concerns during the same period.
228.
I have also come to the conclusion that one good reason why Mr Lewis did not
consider making a claim was that it never occurred to him that he would be able to
prove blame on the part of his employer. As a Junior Official he was probably in as
good a position to judge that for himself.
229.
This is the area which has caused me the greatest concern when considering each of
the lead claimants in turn. I have come to the conclusion that there are generic
problems common to all, which I anticipate, extend to most if not all of the Group,
with regard to the cogency of the evidence, which I have considered in conjunction
with the broad merits of the claims. I accept for the purposes of this stage in the
litigation that Mr Lewis can adduce sufficient evidence to demonstrate that he had to
work in significantly difficult circumstances on the various faces in Blaenant; that
these conditions were probably a combination of low seams and water. So far as I can
see, with regard to the specific conditions that were particular to Blaenant, there
would need to be an examination of the geology to explain the face conditions. I
anticipate that expert evidence could be given in this regard to a certain extent,
although the expert would probably need to know something of the specific data that
was available to the Manager at the various times. I anticipate that there might be a
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
query as to whether faces in these kinds of conditions should have been worked at all.
However, I do not read the Generic Statement of Case as going that far.
230.
In terms of possible factual evidence, there is the evidence of Messrs Lewis and
Hughes as Junior Officials and, I anticipate, other mineworkers from Blaenant. In
addition, it is now clear from Mr Morgan’s evidence that Under Managers, Rees and
Bradley, made short witness statements in 1992, so far as I can tell, to BCC.
However, their statements only really establish the conditions rather than the reasons
for them and what could or should have been done, if anything, to alleviate those
conditions. There is no evidence that they have applied their minds to these latter
questions in the intervening years or if they have whether they are able to provide an
expert with sufficient information with which to give an opinion on the issues of
liability raised.
231.
Above all, however, in my judgment, I can only conclude that memories of all
potential witnesses will have deteriorated further since the late 1980s and early 1990s,
particularly for those who ceased to work in the mines at around that time. Whilst it
might have been possible, if Mr Lewis’ claim had been commenced within a relative
short period of 1989 to examine what practical steps should have been taken over the
years, particularly the 1980s, to alleviate the conditions of walking and working with
regard to the stresses that were imposed on his and his fellow mineworkers’ knees, I
am satisfied that the cogency of such evidence has substantially diminished over the
period of, and as a result of, limitation delay that has occurred. I regret to say that the
extent to which the cogency is less as a result is too great to enable a fair trial of the
likely issues.
232.
In my judgment, Mr Lewis’ claim does not satisfy the broad merits test. For all the
reasons I have considered relating to the litigation in general and to his individual
case, in my judgment, it is not fair and just to permit Mr Lewis’ claim to go to trial. I
therefore decline to exercise my discretion to disapply section 11 of the Act.
David Hughes
233.
Logically I deal with Mr Hughes’ case next as a fellow Junior Official from Blaenant,
with similar issues relating to his date of knowledge under section 14 of the Act. He
is now 66 and worked principally at Blaenant from 1969 to 1989.
234.
Mr Hughes contends for a date of knowledge in 2007. Since he brought his claim in
2008 it would not be barred by section 11 of the Act.
235.
The medical experts agree that Mr Hughes suffers from osteoarthritis of both knees,
diagnosed in the right knee in May 1988 and in the left knee in January 1989. He
underwent knee replacements of both knees in 2001, which have been successful, but
he is still seriously disabled with a walking distance limited to some 200 yards using a
stick.
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
236.
Mr Hughes has mild arthritis in both hips and also has arthritis affecting his neck and
shoulders. Considering ‘Inherited factors’ Professor Moran believes that Mr Hughes
may have some inherited predisposition to developing osteoarthritis, but does not
regard inherited factors as a major factor in the development of his knee arthritis. Mr
Bickerstaff disagrees, regarding it as not unusual in such individuals to develop
degenerative changes in other joints due to the heavy load placed upon them by their
work; that the presence of osteoarthritis elsewhere within the body itself is not
evidence of a constitutional predisposition and he notes there is no evidence of
primary osteoarthritis.
237.
The experts agree that at age 44 he was extremely young to develop such changes.
238.
The following is relevant when considering ‘Repetitive joint damage’. The experts
agree: that Mr Hughes’ work as miner, which involved kneeling, crouching and
squatting under heavy load and also walking on rough ground for prolonged periods,
has predisposed him to the development of osteoarthritis within his knees; that his
sport is not a factor in the development of the knee osteoarthritis. They both note that
there are no significant knee injuries recorded in the medical notes.
239.
Under ‘Inflammatory conditions’ the experts agree that there is evidence that Mr
Hughes suffers from calcium pyrophosphate disease (also known as chondrocalcinosis
or pseudogout) which was diagnosed radiographically in 1988. The presence of
crystals within the medial compartment of the right knee was also confirmed in an
arthroscopy in 1990. Mr Bickerstaff is of the opinion that the presence of calcium
pyrophosphate crystals will have been implicated in the progression of the
osteoarthritis within the knee but will not be a major factor in the causation of
osteoarthritis. Professor Moran is of the opinion that the presence of the crystals were
a causative factor with regards to the development of osteoarthritis within the right
knee.
240.
Both orthopaedic experts under ‘Increased strain on the joint’ agree that Mr Hughes
had body mass index of 31.7 kg/m2 in 1970 which would define Mr Hughes as obese
on current standards. By 1992 his BMI had risen to 38 kg/m². Mr Bickerstaff notes
that in 1970 Mr Hughes at 26 years of age was playing rugby, so that it was more
likely that bigger muscle bulk accounted for his weight of 15 stone 11 lbs. Nor would
it be possible for someone who is significantly obese to perform the work he was
doing on the face. Mr Bickerstaff is of the opinion that Mr Hughes’ weight was not a
causative factor in the development of osteoarthritis but does agree that his increased
weight may be implicated in the progression of the arthritis once it has developed.
Professor Moran is of the opinion that Mr Hughes’ weight was a factor in both the
development and progression of his knee osteoarthritis.
241.
In conclusion the orthopaedic experts agree that, considering osteoarthritis is caused
by multiple factors, Mr Hughes has osteoarthritis of both knees and have delineated
the factors that contributed to the development of osteoarthritis and also resulted in an
acceleration of the progression and symptoms of this condition.
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
242.
They agree that Mr Hughes’ work as a miner is a factor in the causation of his knee
osteoarthritis. There is an issue between them whether there is a constitutional
predisposition to the development of knee osteoarthritis in his case, but agree that Mr
Hughes' obesity and the presence of calcium pyrophosphate crystals can be implicated
in the progression of the disease.
243.
He suffered a number of accidents: in 1970 a large stone struck his right knee, it
caused a deep cut and no ligaments or joint were involved; in 1972 both legs were
forced into soft coal when a fellow workman reversed the Eimco loader over him
causing heavy bruising and some 2 months off work.
244.
He became a deputy in 1976 and later an overman, but maintained as did Mr Lewis
that he was a ‘hands on’ official who did his share of heavy work.
245.
His written evidence was that he began to notice pain and discomfort in his knees
during the late 1970s; that he did not go to the doctor because he thought it was down
to age and the cold and wet conditions (he was mid to late 30s and a junior official by
that stage). He described noticeable problems by the time he was working on 109
District which became more intense when he transferred to 111 District, referring to
the feeling of a ‘red hot poker behind knees’.
246.
He spoke of first noticing “niggly things” in the 1970s which became more noticeable
on 109 District; 111 District, he said, “finished” him. He had said in his statement
that23 conditions on 111 helped to finish off his career. I have already referred to the
conditions on this face earlier, but it is of interest that there is no specific reference to
wet conditions in his written description of the conditions on this face24 which tends
to suggest that there were serious conditions separate from the wet or damp
conditions. It is clear that Mr Hughes and the Manager, Mr Jones, had a clash of
personality with the latter refusing to accept his knee complaints as genuine.
247.
It was in these circumstances that in May 1988 he saw his general practitioner, Dr
Hoptroff25, and was referred to an orthopaedic surgeon, Mr Lake, who told him that he
had osteoarthritis and that he had to stop working in mines as this was increasing the
pain he had in his knees26.
248.
Mr Lake’s clinical note of the 10th January 1989 records a history of pain over the
“right knee, exacerbated by walking, particularly over uneven ground or kneeling or
stooping. It has forced him to give up his job as a face worker …”, confirms the
diagnosis, records his description of having to walk often 1½ miles over rough terrain
and how he had had difficulty convincing the management of his genuineness. The
note contains this passage: “… my honest advice to him is that [the work he
23
paragraph 474
paragraphs 413 to 431
25
paragraph 478
26
paragraph 479
24
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
describes] is probably inadvisable for him and that he certainly should be seeking
more sedentary work which involves less walking, stooping, etc.”
249.
Reporting to Dr Davies, the BCC doctor, Mr Lake emphasised the strong advice that
he had given to obtain that lighter work; that walking should be minimal, no more
than 10-20 yards and should avoid working on uneven ground.
250.
Mr Hughes’ evidence is that he was not told what had caused his osteoarthritis until
2007 at the earliest. In particular, his statement27 reads:
“Mr Lake did not tell me why I suffered with osteoarthritis in
my knees ... I assumed these problems were probably due to the
amount of water that I had worked in over the years. This was a
widespread belief among the men at Blaenant. Many former
miners had knee problems and it was generally thought that this
was due to working in the cold and wet conditions in the mine.”
251.
The statement continues:
“I asked Doctor [Hoptroff] why I was having the problems I
had with my knees. Doctor [Hoptroff] informed me that it was
due to my work underground.
“This was the first occasion on which it was suggested to me
that my work may have caused the problems I had with knees.
However, Dr [Hoptroff] did not go into detail regarding the
reasons why my work underground had caused my knee
problems. I again assumed at the time that these problems were
likely to be caused by the wet conditions in which I had worked
at Blaenant Colliery ...
“I did not think that working in these wet conditions was
particularly good for my knees and assumed the problems I had
with my knees were likely to be due to this, following my
discussions with Dr [Hoptroff].”
252.
27
In oral evidence, Mr Hughes firmly maintained that he believed that she was only
referring to the wet conditions as being responsible. However, I agree with Mr Jay’s
submission that this makes no sense. Mr Hughes, according to him, already held his
belief that wet conditions were likely to have caused the osteoarthritis, so it was
curious that he should have asked her why he was having the problems. More to the
point, however, Mr Hughes also was aware of the other conditions in which he had
walked and worked over the years which were not confined to wet conditions; he had
Mr Lake’s firm advice that walking long distances, in particular, was going to make
his problems worse. I do not accept that Mr Hughes was so single minded as to have
ignored all the other aspects of his work which he now describes and attributes by his
paragraph 563.
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
claim to the development of his knee osteoarthritis. All the indications are that he
accepted what Dr Hoptroff said to him probably in 1991: that his work underground
generally was responsible. Of course, he believed that the wet conditions contributed
to his problems, along with many miners at the time who associated rheumatism with
arthritis, but I find that his belief was not so confined; that he had a firm belief by
1991 at the latest that his working conditions in general, to which he now attributes
his knee osteoarthritis, were at least in part responsible for his knee problems.
253.
Further, I am satisfied that, if that belief had not been sufficient, Mr Hughes was not
‘barking up the wrong tree’. On the contrary, he specifically asked Dr Hoptroff why
he was having problems with his knees and was given a sufficient opinion from her
that it was his work in general that was the cause. My finding is that he had no need
to ask further of her, but, if for any reason he did need further clarification, he had
sufficient information from Dr Hoptroff to seek further expert advice.
254.
In the circumstances, I find that his date of knowledge was no later than 1991.
255.
The story, however, does not end there and I can deal with it quite shortly.
256.
In June 1992 a letter of claim was written by Hugh James, solicitors, on Mr Hughes’
behalf claim damages for his knee osteoarthritis. It read:
“We are instructed by Mr Hughes that he was required to work
at … Blaenant Colliery in very arduous conditions for many
years. In particular, during a three year period at Blaenant
Colliery Mr Hughes was required to work on the 101 face in
very wet conditions …”
257.
This apparently arose after a union meeting about deafness claims, when Mr Hughes
mention his knee trouble to Mr Bleddyn Hancock, General Secretary of NACODS
South Wales. Apparently an appointment was made for Mr Hughes to see Mr Lake.
Mr Hughes in evidence said he thought that this was at the instigation of BCC,
although, unless it was to do with investigating that specific claim, I cannot see what
interest BCC would have had in doing so. Curiously, enquiries of Mr Lake have
indicated no record of a private appointment. It remains unanswered, therefore,
whether in fact he ever did see Mr Lake at that time and what were the reasons behind
the matter not being pursued further.
258.
In my judgment, this indication of a claim which was not pursued merely underlines
my finding that Mr Hughes had a firm belief that his knee osteoarthritis was
attributable to his general walking and working conditions over the years
underground; that he must have accepted advice, which he says he cannot recall, to the
effect that the claim for whatever reason was not worth pursuing. Further, it leaves
him in the position that, if he had wanted to pursue the matter further, he plainly
needed to obtain further expert medical advice, which probably could at least have
told him what the present orthopaedic surgeons have concluded.
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
259.
I have to say that I was left with the clear impression that generally Mr Hughes did not
make a satisfactory witness.
260.
This does not form a strong basis for the exercise of discretion in Mr Hughes’ case.
There followed at least some 14 years limitation delay which can only be explained by
the facts that having instigated and not pursued a claim based on knee osteoarthritis
he probably gave the matter no further thought or concern until he was advised of this
group litigation. It is suggested by Mr Allan that an individual could not in reality
have pursued an individual claim because of the resources needed to investigate the
matter sufficiently to present a claim such as the present group of claims. That may be
so insofar as it is relevant, but in Mr Hughes’ case he had started out on, but not
pursued, a claim. There is no evidence that he made any further enquiries of his union
to see if anything had changed.
261.
In my view, Mr Hughes was left with only the generic reason for not bringing a claim
earlier, namely that it was not until the union approached him in 2007 that he was
prepared once again to consider pursuing a claim.
262.
In terms of the cogency of the evidence, like Mr Lewis he can prove probably where
he was working at any given time and the distances which he had to walk into work.
He can prove that his walking and working conditions in general were probably a
major contributory factor of the development of his knee osteoarthritis. However, his
claim suffers from the same problems that I have already identified when dealing with
the cogency of evidence generically.
263.
In my judgment, a fair trial of the issues raised on Mr Hughes’ behalf has been
seriously compromised by the delay in bringing his claim following his date of
knowledge. An already very difficult claim to prove has been made even more
difficult by the passage of further substantial time as has been demonstrated time and
again by the difficulty which each of the factual witnesses has had when having his
mind directed to specific matters of importance. For these reasons, Mr Hughes’ claim
does not satisfy the broad merits test, but in any event I am satisfied that his is not a
proper case in which to disapply the provisions of section 11 of the Act.
Terence Hathaway
264.
Mr Hathaway is 70. He worked at Penallta Colliery in South Wales from his training
in 1964 to his retirement in 1987.
265.
I found Mr Hathaway a straightforward witness who readily accepted that which I
have already accepted in the cases of Messrs Lewis and Hughes, namely a firm belief
that the conditions on which he now relies were in whole or in part responsible for the
development of his knee osteoarthritis.
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
266.
The orthopaedic experts agree that Mr Hathaway has osteoarthritis in both knees. The
medical records indicate that this was first diagnosed in November 1984.
267.
The experts agree that Mr Hathaway has suffered meniscal damage. He had a
diagnosis of medial meniscal tear of the right knee in July 1978. A meniscal tear of
the left knee was diagnosed in November 1986 and he underwent total meniscectomy
of the right knee in July 1988. Part of the left knee medial meniscus was removed in
January 1989. He had a left total knee replacement in May 1992 and a right total knee
replacement in March 1997. These operations were partially successful with good
pain relief and improved mobility. Mr Hathaway continues to have symptoms and
disability. He has pain when walking with permanent stiffness of the knees. His
walking distance is limited to about 100 metres and he often uses a walking stick. He
is unable to kneel but can manage the stairs using banister.
268.
The experts agree that the medical records indicate that Mr Hathaway first developed
symptoms in the left knee in July 1984 and in the right knee in November 1986.
269.
Under ‘Inherited factors’, Mr Hathaway has some arthritis affecting his fingers. The
experts agree that there is an association between this type of arthritis and arthritis
affecting the large joints, particularly the knees. In view of this, both experts agree that
Mr Hathaway has some inherited factors that have predisposed him to the
development of knee arthritis.
270.
The experts agree that with development at the age of 44 years the normal ageing
process is unlikely to be an important factor in this case.
271.
The following factors are relevant in respect of ‘Repetitive joint damage’. Mr
Hathaway worked at the coal face for approximately 23 years. The orthopaedic
experts agree that Mr Hathaway’s occupation was a factor in the development of
arthritis in his knees. The experts agree that his participation in sport has been
minimal and has not been a factor in the development of knee arthritis.
272.
As for ‘Increased strain on the joint’ Mr Hathaway is now slightly overweight but not
obese. He was never obese during his working life at the time that he developed
osteoarthritis. The experts agree that obesity is not a factor in this case.
273.
Mr Hathaway suffered torn cartilages in both the right and left knees. The experts
agree that it is not clear, from the medical records, when these cartilage tears occurred.
It is possible that they could have occurred at work or in his day to day activities.
However, given the working conditions underground, both experts agreed that, on the
balance of probabilities, it is most likely the cartilage tears occurred during the course
of his work as a miner.
274.
Mr Hathaway underwent surgery in 1988 and 1989 to remove cartilage tears.
Following this, his knees deteriorated rapidly. The experts agree that Mr Hathaway
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
had developed clinical signs of osteoarthritis in the knees prior to the cartilage tears
being diagnosed and so they agree that the cartilage tears and subsequent surgery did
not cause the knee arthritis. However, they agree that removal of the torn cartilages
did result in a rapid acceleration of the arthritis, particularly in the left knee.
275.
In conclusion the orthopaedic experts agree that the following factors have contributed
to the development of osteoarthritis in Mr Hathaway’s knees: inherited factors;
repetitive joint damage as a result of work. There are no areas of disagreement
between them regarding causative factors.
276.
They agree that the following factor accelerated the progress and symptoms from Mr
Hathaway’s knee arthritis: cartilage tear and subsequent surgery to remove the
cartilages.
277.
Mr Hathaway’s limitation delay is some 19 years from his admitted date of knowledge
in 1986. Although his case had appeared to seek a 2007 date of knowledge, he readily
accepted the facts which indicate clearly that it was in 1986.
278.
I highlight some of the specific features about which Mr Hathaway gave evidence
from his working life at Penallta Colliery: he complained of track with irregular
sleepers and missing ballast; for travelling sometimes he could ride on the spake, but
sometimes had to walk – sometimes there was illegal manriding on the conveyor, for
which of course there could be no question of liability; he set out his travelling
distances; he tripped and stumbled daily, though not falling to the ground or
sustaining serious injury. He was appointed Grade 1 Deputy 1973 to 1976 on R106
and R110 which encountered severe geological problems. This led to cavities over
the roof bars requiring wooden chocks to be built over the bars. He further
complained that roadways were not routinely maintained or repaired. In 1983 he was
appointed District Overman but continued his hands on approach. He described the
No 2 East Return Road development work, which was some 1170 yards walk in from
Pit Bottom, and which involved 1 month building a junction with the men
manhandling materials from flat drams, plus 5 months repairing and developing the
roadway. He recalled one specific incident of the collapse into the old roadway when
they fired over it.
279.
Mr Hathaway confirmed at trial his reasons for not making a claim earlier than 2008
which he had set out in his statement. As far back as 1978 his general practitioner, Dr
Henderson, had informed him that he had general wear and tear with his knees due in
part to the working environment underground, for example, working in the kneeling
position and carrying heavy loads. However, he had not considered making a claim.
He was branch secretary of his Union NACODS in the 1970s and was aware of the
type of injury for which it was possible to make a claim. It never occurred to him that
he could claim for gradually developing and ongoing symptoms. He emphasised28
that, if anyone would have been in position to advise about bringing a claim for
osteoarthritis it would have been him, but he had never received any information or
28
Paragraph 394
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
guidance from BCC or advice from national headquarters of NACODS to indicate that
such a claim could be successfully brought. His state of belief remained until 2003
when he was contacted by NACODS that they were thinking of bringing a group
litigation claim for osteoarthritis. From then on he was convinced that there was a
link between the work which he had done underground and osteoarthritis.
Specifically, however, he had had his attention drawn to the effect of a pre-existing
knee osteoarthritis on a claim for damages in respect of a direct injury to the knee in
1984, when a Mr Tudor Davies, orthopaedic surgeon opined that despite having
sustained quite a severe injury to the left knee most of his problems were due to the
degenerative changes in the knee.
280.
Significantly, he put himself forward as a claimant when the group litigation order
was proposed in 2006.
281.
Like the other lead claimants to varying extents, therefore, he has relied on his Union
to take the initiative rather than actively pursuing the possibility of making a claim
himself.
282.
Some 6 former employees have indicated a willingness to give evidence. A former
production manager could provide evidence of working conditions between 1980 and
1984, which could go some way to confirming Mr Hathaway’s evidence as to
conditions. At this length of time, the chances of finding more than a handful of
witnesses are small. Even smaller, as I see it, is the chance of finding factual
witnesses who can give some idea of the causes of the particular conditions
complained of and what specifically should have been done to address them that was
not done.
283.
It seems to me that the cogency of the evidence in his case is likely to be as adversely
affected as in the cases of Messrs Lewis and Hughes.
284.
In my judgment, the length of time that has elapsed from 1986 to 2005, the limitation
delay in his case, has seriously compromised the chance of a fair trial and the cogency
of the evidence likely to be called. There would have been a better chance of
addressing the specific matters raised by Mr Hathaway, if other employees, especially
both senior and junior officials had been able to apply their minds to the conditions
and the reasons that laid behind them in the early 1990s as opposed to the late 2000s.
285.
It follows that, although there is established a link between the kind of walking and
working conditions to which Mr Hathaway was exposed over the relevant period, the
problems in his as in the other cases is one of relating those conditions to common
law negligence or breach of statutory duty.
286.
I regret that for all the reasons I have set out, together with consideration of the broad
merits, I do not find it right to exercise my discretion in Mr Hathaway’s favour, so that
his claim must remain barred by the provisions of section 11 of the Act.
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
Victor Smith
287.
Mr Smith is 68. He worked at Brookhouse, Westthorpe, Markham and Highmoor
Collieries in Nottinghamshire between 1962 and 1990 when he retired.
288.
The medical evidence confirms that Mr Smith suffers from osteoarthritis of both
knees. It was diagnosed in the right knee in 1986 and in the left knee in 1987. There is
no evidence of a meniscal tear. He underwent a right total knee replacement in
November 2006 and a left total knee replacement in March 2009. He is presently
complaining of pain in both knees with the left worse than the right and has
significant difficulty with any bent knee activities such as kneeling, crouching or
squatting. He also reports occasional night pain. His walking distance is limited to
some 50-60 yards using a stick. He confirmed this in evidence.
289.
The orthopaedic experts agree that Mr Smith developed osteoarthritic symptoms in the
right knee in 1986 and in the left knee in 1987.
290.
Under ‘Inherited factors’ the experts note that Mr Smith does complain of arthritic
type symptoms in a number of other joints such as his back, neck, shoulders and
elbow. Mr Bickerstaff puts this down to working in heavy manual labour for many
years as a miner; it is not unusual in such individuals to develop degenerative changes
in other joints due to the heavy load placed upon them by their work. The presence of
osteoarthritis elsewhere within the body itself is not evidence of a constitutional
predisposition and he notes there is no evidence of primary osteoarthritis. Professor
Moran notes that the arthritis in all the joints developed at about the same time and Mr
Smith did not suffer a severe injury to these joints. Professor Moran is of the opinion
that the presence of degenerative type symptoms in other joints is evidence of general
constitutional predisposition to the development of arthritis, including the knees.
291.
The experts agree that the age of 44 is very young to develop osteoarthritis; therefore,
the normal aging process is not implicated in the development of his knee
osteoarthritis.
292.
Coming to ‘Repetitive joint damage’ the experts agree that Mr Smith’s work as a
miner which involved repetitive, heavy, load bearing activities in a bent knee position
and also walking for prolonged periods on uneven ground will have predisposed him
to the development of osteoarthritis within his knees. They note that he has never
played contact sports, therefore, suffered no sporting injuries to his knees.
293.
In conclusion, the experts agree that Mr Smith has osteoarthritis of both knees and
have delineated the factors that contributed to the development of osteoarthritis and
also resulted in an acceleration of the progression and symptoms of this condition.
They agree that Mr Smith’s work as a miner is a factor in the causation of
osteoarthritis within his knees. There is an issue between them whether there is any
constitutional predisposition to the development of osteoarthritis.
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
294.
There are no other facts that can be implicated in the progression of his knee
osteoarthritis.
295.
Mr Smith’s date of knowledge is in issue, not so as to bring his claim within the
limitation period, but rather to determine the length of delay between the date of
knowledge and the issue of his claim in 2008, which could potentially affect the issue
of prejudice under section 33. He contends for 2003 when he first saw the
orthopaedic surgeon, Mr Royston, which would indicate only some 2 years limitation
delay in effect. The Department contends for a significantly earlier date.
296.
He made it clear in evidence that he had formed a firm belief that his knee problems
were related to his work as a pipefitter and faceworker, but was unclear as to when
this had become a firm belief. Diagnoses of osteoarthritis in his knees were made in
1986 and 1987. Mr Smith accepted in evidence that he attributed his knee problems
to heavy manual work, including carrying heavy objects of a diverse nature, banging
and knocking his knees and debris getting in behind his knee pads; that he had had
this firm belief from the middle 1980s when the problems with the knees started. He
completed a form for industrial injury benefit in 2009 as follows in answer the
question ‘What type of work do you think caused your disease?’:
“Working underground in a Coal Mine walking and crawling
over uneven ground carrying rings, tins, struts etc.”
297.
This prompted Mr Jay to suggest to Mr Smith that his state of mind as to the cause
was probably the same in 2009 as it had been in the late 1980s. Mr Smith agreed. In
my judgment, that was in effect a concession that he had a firm belief by 1987 at the
latest that the kind of work which he described in the 2009 form and on which he
seeks to rely in this litigation was caused by those aspects of working underground.
298.
In the early 1980s he began to suffer pain in the knees at work and at home. When he
was diagnosed with osteoarthritis in both knees, he was told and understood that the
muscles were worn away and the bones were rubbing together.
299.
He had asked his doctor if there was any chance of a claim “through the social” for
bad knees, but his response had been: “there are no pits down south, but people still
get arthritis, so no chance.” Nevertheless, he continued to think it was from work:
walking on uneven ground, scrambling through the face, banging his knees amongst
other things, “plus water as well.” He did not seek any advice as to that being the
cause.
300.
At the time of the VWF claims he saw an advertisement in the paper. After that he
said he was waiting till the Union brought up the possibility of claims for knees. In
general chat, it was always said knees would be next, but he did not hear about the
possibility of claiming till he learned about the prescribed benefit in 2009. He added
that if he had gone to the Union about his knees, they would have just laughed at him
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
and said “everyone’s got the same.” Everyone complained about their knees with
different degrees of seriousness, but there were no discussions as such.
301.
As a result of an accident, when he slipped underground on wet ground, involving
direct trauma to his right knee in October 1990, he made a claim for damages which
was settled for £2,500 in 1994. An orthopaedic surgeon, Mr Hunter reported in
August 1994, who gave as his opinion that the injury had accelerated the underlying
osteoarthritis by some 5 years. Curiously, Mr Smith could not remember seeing Dr
Hunter, although he did recall the basis of his advice.
302.
An orthopaedic opinion that an injury has aggravated an underlying arthritic condition
was by no means unusual, as reported awards for spinal and knee injuries indicate.
303.
Nevertheless, he did not think of making a claim in respect of the development of the
knee osteoarthritis, despite having had, since the middle 1980s, the belief that banging
and heavy lifting were responsible for his knee osteoarthritis.
304.
He gave evidence of stumbling which varied from about once a month to daily and
described, for example, treacherous walking conditions on Spa 1’s District, where the
arches had buckled. There was, he said, no proper system of back ripping. He also
said that they used pull lifts for handling heavy pipes only when available. He was
aware that the heavy work put strain on the knees.
305.
In Mr Smith’s case, for the reasons I have considered above I find that his date of
knowledge was 1987. Therefore, in his case there are some 18 years of limitation
delay.
306.
There are no witnesses available to cover Mr Smith’s employment at Brookhouse.
There are only 2 witnesses who could assist in respect of working conditions at
Westthorpe for part of the periods of his employment there (1976 to 1982 less than
half of the period). There are none to cover his employment at Highmoor Colliery. In
common with other claimants, although he had a reasonable recollection of his
working conditions in various places during his employment, when asked about
specific conditions relating to specific incidents, such as a reported accident, he was
less able to remember. There is nothing remarkable about that, nor can a man be
criticised. It merely illustrates the difficulties of recalling anything other than general
matters.
307.
Mr Smith’s claim suffers from the generic problems similar to those of the other
claims. There is nothing in his case which indicates that the cogency of the evidence
would be any less affected. Specifically, he had his attention drawn to the effect of a
pre-existing knee osteoarthritis on a claim for damages in respect of a direct injury to
the knee. Like the other claimants it had never occurred to him that there could be a
claim based on the work related development of the osteoarthritis.
His Honour Judge S P Grenfell
Approved Judgment
308.
Miners’ knee group litigation 7LS50038
In my judgment, taking all the considerations into account, together with the broad
merits, and, in particular, the substantial post limitation delay with its likely effect on
the cogency of the evidence, I do not regard it as right to exercise discretion to
disapply section 11 of the Act in his case.
Harold Hickin
309.
Mr Hickin is 62. He worked principally at Shirebrook Colliery in Nottinghamshire
between 1963 and 1993 when he retired.
310.
Mr Hickin’s date of knowledge is agreed at 1995, that means that 13 years elapsed
before the issue of the claim and, therefore, there is some 10 years limitation delay.
311.
The medical evidence confirms that Mr Hickin suffers with osteoarthritis in both
knees. The arthritis in the right knee was diagnosed in April 1994. He suffered a tear
of the medial meniscus of his right knee which was diagnosed in March 1970. He
underwent surgery in October 1980 when the medial meniscus was removed from the
right knee (total medial meniscectomy). He suffers with pain and disability related to
the knee arthritis. Both experts agree that Mr Hickin has much more severe symptoms
in his right knee than the left. He gets pain in this knee as soon as he starts walking.
He has good and bad days with the knee and on a good day can walk a maximum of
200 yards using a walking stick. He has permanent stiffness and swelling of the knee.
The experts agree that Mr Hickin first developed symptoms in the right knee in
February 1984. He first reported symptoms in the left knee in September 1998.
312.
In terms of ‘Inherited factors’ Mr Hickin has some early arthritis in his shoulder and
has some back pain which is probably due to arthritis. Mr Bickerstaff puts this down
to working in heavy manual labour for many years as a miner due to the heavy load
placed upon other joints by the work. There is an issue between the experts whether
or not the presence of osteoarthritis elsewhere within the body itself is evidence of a
constitutional predisposition. However, Professor Moran believes that inherited
factors are not a major factor in the development of his knee arthritis.
313.
Mr Hickin was diagnosed with arthritis at the age of 46 years, a relatively young age
to develop osteoarthritis, so both experts agree that the normal ageing process is
unlikely to be an important factor in this case.
314.
The experts agree that his occupation was a factor in the development of knee
arthritis. Mr Hickin worked underground for about 25 years. A lot of the time was
spent in wet and damp conditions working at the coal face with low seam heights.
With regard to the amount of sport that Mr Hickin played, the experts found some
discrepancy between their reports. Mr Hickin had told Mr Bickerstaff that he did not
play sport and in view of this Mr Bickerstaff does not believe that sport was a
significant factor in the development of his knee arthritis. He told Professor Moran
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
that he had played football into his 30’s. Professor Moran notes there is no evidence
that Mr Hickin suffered a severe knee injury playing sport.
315.
To a certain extent Mr Hickin sought to clarify this by saying that he had given up
competitive football before he was 20 but had continued playing informally until his
30s. This could be a factor which would require further investigation.
316.
Under ‘Inflammatory conditions’ Mr Hickin has been diagnosed with gout and
chondrocalcinosis. There is an issue whether the medical records should be taken at
face value, or whether the diagnosis of gout could have been an error as the crystals
can look quite similar down the microscope. Both experts agree that the deposit of
crystals in the joint (regardless whether this is gout or chondrocalcinosis) is a factor in
the development of osteoarthritis in Mr Hickin’s knees.
317.
Considering the factor ‘Increased strain on the joint’ the experts note that Mr Hickin is
overweight but has never been obese and agree that this is a not a factor in the
development of his knee arthritis. He suffered a torn cartilage and in October 1970
had the right medial meniscus removed. The experts agree that the precise cause of
this cartilage tear is not recorded in the medical records. Cartilage tears can occur
during sport, day to day activities and work. They agree that the cartilage tear and
subsequent removal of the cartilage was a factor in the development of arthritis in his
right knee. This would require further investigation.
318.
Under ‘Abnormal movement of the joint’ Mr Hickin has ruptured the anterior cruciate
ligament (ACL). The experts agree that the rupture of the ACL occurred because of
the arthritis and it was not a factor in causation.
319.
In conclusion the orthopaedic experts agree that Mr Hickin has osteoarthritis of his
knees and have delineated the factors that contributed to the development of
osteoarthritis and also resulted in an acceleration of the progression and symptoms of
this condition. They agree that the following factors have contributed to the
development of osteoarthritis in Mr Hickin’s knees: repetitive joint damage as a
result of work; chondrocalcinosis with or without gout; torn cartilage right knee.
320.
There is an issue whether these are the only factors to have contributed to Mr Hickin’s
osteoarthritis or whether he may have some inherited factors predisposing him to the
development of arthritis but Professor Moran accepts that he does not have a major
constitutional predisposition to the development of arthritis in the large joints.
321.
The experts agree that there is no evidence that Mr Hickin suffered a severe knee
injury playing sport. If Mr Hickin did play regular contact sport up to the age of 30
then Professor Moran believes that sport may have been a factor in the development of
arthritis. However, if he only played occasional sport he agrees that this was not a
factor. Mr Bickerstaff is of the opinion that in the absence of a significant knee injury
his sport was not a factor in the development of his knee arthritis.
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
322.
The experts agree that the continued chondrocalcinosis with or without gout in both
knees has accelerated the progress and symptoms from Mr Hickin’s knee arthritis.
323.
There is an issue whether or not the degenerative tear of the ACL ligament right knee
has accelerated the progress and symptoms from Mr Hickin’s knee arthritis.
324.
Mr Hickin made a claim for damages in respect of a March 1987 accident which
caused a badly twisted right knee. The medical experts who examined him at the time
concluded that the accident was not responsible for the majority of the symptoms of
which he complained. All the time, Mr Hickin believed, as he confirmed in evidence,
that his right knee had been made worse by wear and tear at work, although he did not
recollect asking them why his knee was in this condition. Nevertheless, he plainly had
held a firm belief probably for some years that the conditions of which complaint is
now made were responsible for his knee problems, which in turn were confirmed as
knee osteoarthritis in 1995.
325.
Mr Hickin’s evidence is that he first realised in 2005 that he could claim for his knees
by word of mouth, in the same way that he and many others had claimed for breathing
problems and VWF. He thought that next they might be able to claim for knee
problems. In 2008 solicitors wrote advising him that he might have a potential claim.
This was approximately at the same time as a poster went up in Shirebrook Miners’
Welfare advising men to claim compensation for knee problems.
326.
I have already referred to the documentation that is available for some of Mr Hickin’s
employment at Shirebrook, of which the section 123 reports and consultative
committee minutes potentially are of importance. However, without the input of
recollection as to whether they represented a continuing state of affairs or as to what
action was taken, they are unlikely to assist to a sufficient degree.
327.
There are 4 potential witnesses who may be able to speak as to the working conditions
at Shirebrook during the Claimant’s period of employment, between 1970 and 1987
(Shirebrook closed in 1993). It is possible that, if any of the 24 management grade
witnesses who apparently have been identified could be persuaded to give some
evidence, then possibly some further assistance could be given.
328.
Mr Hickin’s period of limitation delay is the shortest of the lead claimants so far.
However, in my judgment, there is little to chose between these various delays, since
witnesses will have to cast their minds back similar periods to when these mines were
in operation during the periods covered by the group litigation.
329.
Mr Hickin’s claim suffers from the similar generic problems that I have already
identified. In common with others, he has no difficulty in recalling memorable
incidents such as the one where on the face everything caved in from the panzer
forwards so that production was held up for a week: they had to timber up the cavity
which stretched up about 30 foot with 60 chock baulks high above the hydraulic
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
chocks. However, even such evidence raises more questions than it answers. He is no
more able to shed light on the reasons that lay behind the various conditions that he
describes than any of his fellow lead claimants can.
330.
For all the reasons I have considered, I am of the view that a fair trial has been
compromised by the limitation delay. Taking all the relevant matters into
consideration, together with the broad merits, I do not consider it right to exercise the
discretion to disapply section 11 of the Act in his case.
John William Bell
331.
Mr Bell is 53. He worked principally at Vane Tempest Colliery in the Durham
coalfield between 1975 and 1992.
332.
The experts agree that Mr Bell has osteoarthritis in both knees. The arthritis in the left
knee was diagnosed in August 2000. The diagnosis of osteoarthritis in the right knee
is much more recent. It is not clearly recorded in the medical records but the experts
agree that Mr Bell’s x-ray does show early osteoarthritis of the right knee. Mr Bell
has had 2 meniscal tears of the left knee. These were both treated with keyhole
surgery (arthroscopy). The first tear was removed in January 1990 and the second tear
was removed in July 2001.
333.
Mr Bell suffers with aches, pains and stiffness in both knees with occasional swelling.
He has developed a slight deformity of the left knee (bow legged). At the present time
Mr Bell’s symptoms are not severe enough to restrict his mobility.
334.
Both experts agree that symptoms in the left knee first arose in June 1986. Mr Bell
first reported symptoms in the right knee in July 1991.
335.
Considering ‘Inherited factors’ Mr Bickerstaff puts Mr Bell’s mild arthritis in the
wrists down to the heavy load placed upon them by his work. There is an issue
whether or not the presence of osteoarthritis elsewhere within the body itself is
evidence of a constitutional predisposition to osteoarthritis. However, Professor
Moran believes that inherited factors are not a major factor in the development of his
knee arthritis.
336.
43 (the time of his diagnosis) is a relatively young age to develop osteoarthritis and so
both experts agree that the normal ageing process is unlikely to be an important factor
in this case.
337.
The orthopaedic experts agree that Mr Bell’s work at the coal face for approximately
16 years was a factor in the development of arthritis in his left knee. He played first
class rugby for about 12 years. Both experts agree that repetitive impact sports may
predispose people to developing knee arthritis. However, this is only a major factor in
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
the event of there being a significant knee injury. There is no evidence that Mr Bell
suffered a serious knee injury (such as meniscal tear, ligament tear or fracture) whilst
playing sport. Suffering this type of serious knee injury would be a major factor in the
development of knee arthritis and the experts agree that there is no evidence that Mr
Bell suffered this type of severe injury playing sport.
.
338.
Mr Bell was diagnosed with gout in 1991. Gout results in the deposit of crystals
within joints and these crystals can cause direct joint surface damage due to abrasion
and also result in inflammation that can cause joint damage, and ultimately,
osteoarthritis. The experts agree that gout is a factor in the development of the
osteoarthritis in Mr Bell’s right knee. The experts agree that there is no clear medical
evidence that Mr Bell has suffered with gout in the left knee. Professor Moran is of
the opinion that this does not rule out the possibility that gout has affected the left
knee.
339.
The medical records indicate that by 1999 Mr Bell had a BMI of 38.8, indicative of
severe obesity (Obesity is diagnosed with a BMI of 30 or greater; a BMI of greater
than 35 is considered to be severe obesity). Both experts agree that this obesity
exacerbated the progression and symptoms from Mr Bell’s knee arthritis.
340.
There is some disagreement between the experts regarding obesity being a causative
factor. The medical records indicate that Mr Bell had a BMI of 32.1kgs per m² in
1991. Professor Moran believes this was due to obesity rather than muscle. In view of
this, Professor Moran believes that Mr Bell’s obesity was an important factor in the
development of his knee arthritis.
341.
Mr Bickerstaff believes that Mr Bell’s high BMI of 32.1kgs per m² in 1991 could have
been due to him having a muscular build from playing rugby and continuing in heavy
industrial work. In view of this, Mr Bickerstaff does not believe that Mr Bell’s raised
BMI was a factor in the development of knee arthritis.
342.
This remains, therefore, an important causative issue.
343.
The orthopaedic experts agree that a cartilage tear or removal of a cartilage is an
important predisposing factor for the development of arthritis in the knee. This
predisposition to osteoarthritis is greatest if the whole cartilage is removed. The
experts agree that a cartilage tear or removal of part of the cartilage will also
predispose to the development of arthritis.
344.
Mr Bell had keyhole surgery on 19th January 1990 to remove a tear of the medial
meniscus. The experts agree that the precise cause of this tear is not clear from the
medical records and that it could have occurred at work, during day to day activities
or whilst he was playing rugby. However, given the chronology of events recorded in
the medical records they agree that it is likely, on the balance of probabilities, that the
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
small tear of the medial meniscus occurred at work in July 1989. The experts agree
that this cartilage tear was a factor in the development of osteoarthritis in the left knee.
345.
Mr Bell had a further knee injury in August 2000 and suffered a further tear of the
cartilage that required keyhole surgery on the 4th July 2001. Mr Bell was not working
as a miner at this time. The experts agree that Mr Bell had already developed
osteoarthritis in the left knee by this stage and so this second cartilage tear was not
causative. However, removal of part of the cartilage would increase the strain on the
joint and so the experts agree that this second cartilage tear would have accelerated the
progression and symptoms from his knee arthritis.
346.
In conclusion the experts agree that Mr Bell has osteoarthritis of his knees and have
delineated the factors that contributed to the development of osteoarthritis and also
resulted in an acceleration of the progression and symptoms of this condition.
347.
In its Defence the Department contended for a date of knowledge of October 2000,
which coincided with the diagnosis of knee osteoarthritis in his case. The date
contended for on his behalf was no more than a year later at 2001. However, as a
result of Mr Bell’s oral evidence at trial, the Department now contends for a date in
the late 1980s with 1990 at the latest.
348.
The evidence on which the Department relies in this regard is as follows:
349.
Mr Bell accepted that “he began to suffer from problems with both knees in his late
20s”, that is to say, sometime in the early 1980s. His medical records show a number
of knee injuries in the 1970s probably at work:
(a)
29th September 1975: “had a fall …and injured both
knees”;
(b)
5th April 1976 “painful knees fell off belt and struck
knees”. He claimed Industrial Injuries Disablement Benefit
(“IIDB”);
(c)
June 1976: he injured his left knee whilst climbing
under a belt; the knee was manipulated in n hospital;
(d)
November 1976: he twisted his left knee and was off
work; and
(e)
350.
4th July 1977: he twisted his left knee and was off work.
During the 1980s his BCC medical notes indicate that he sustained approximately 14
knee injuries at work. The general practitioner note of 31st January 1987 “will take
his knees to everyone until he hears what he wants” indicates that his knees were a
source of considerable concern to him.
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
351.
In his oral evidence he had difficulty recalling the accidents or treatment.
352.
He was then asked about an accident in April 1987:
“Q. Then, page 76, this one's possibly a more serious injury,
although we don't know the severity of the injury at page 46.
But if you go to page 76, please. 22 April is when it was filled
in, but the accident, I think, happened on 21 April 1987 at two
in the afternoon. Under the section "History" it says: "Hurt
knee whilst climbing on to Dosco." Then it says: "C32 T/G."
A. Tailgate.
Q. So that's the location of it?
A. Yes.
Q. Can you remember anything about that incident?
A. No, definitely not.
Q. Someone's written in: query, torn cartilage, left knee. Do
you see that?
A. Yes.
Q. Is it fair to say that in relation to these accidents you don't
really have a very good memory of them?
A. I don't, no.
Q. Okay. There are also some records from within British
Coal, as it were, separate from your GP, some medical records,
and I'll ask you, please, just to look at a few of those. These are
to be found in volume 7 of our light blue bundles, which is your
colour, Mr Bell. The first entry we're going to look at -- we're
not going to look at that many of these -- is at page 29, 1 April
1975. You are probably going to have to take it out of the file,
but it's on the left-hand side once you take it out of the file, it's
the top left. The entry for 1 April 1975 says, I think:
"10 am, bruise left knee. Tubigrip. Unloading cement, caught
knee against [I think it says] mine car."
Then something I can't read at all. Can you help us at all with
that?
A. I can't.
Q. Do you remember anything about this?
A. No.
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
Q. Okay. The incident when you were taken home by
ambulance, there is a record here, which probably relates to it
or marries up with it. It's at page 28, the previous page. Again,
it's on the left-hand side, it's the entry at the bottom: 29 March
1976. 6.55 am. You remember, I said it was early in the
morning. Although it's right to say that page 4 of generic
bundle 6 gives a different date. It gives the date of 4 June 1976,
but I think it must be the same incident. It says:
"Soreness, stiffness, swelling both knees." Then:
"Home by ambulance." And a bit later on:
"Getting off belt, fell on to platform."
And you went on hospital. Do you remember anything about
that?
A. No.
Q. You made a claim for DSS benefits though in relation to
that incident. Do you recall?
A. I remember vaguely, yes, vaguely, going for a medical, but I
can't remember much about it. To be honest, I don't even know
where I went for it.
353.
On 6th April 1987 a torn medial meniscus was diagnosed. Subsequently, Mr Bell
underwent an arthroscopy of his left knee.
354.
There are references through the 1990s to knee problems whether attributable to his
“injured left knee” or to gout in his right knee. On 8th January 1990 he underwent a
further arthroscopy on his left knee.
355.
In his oral evidence he attributed his knee problems to “kneeling and walking
distances on uneven ground” and “lifting heavy weights”, the matters now relied on in
support of the claim. The following exchange indicates his state of mind:
“Q. And when you say, "I have always believed", how far back
are we going, Mr Bell?
A. Since then. Once I started crawling about, things like that.
Q. You started working in the mines in 1975, but to be fair to
you, your knee problems began to become serious probably in
about 1986 or 1987; would you agree with that?
A. No, early 80s I had pains in my knees, swellings and that,
when I've been crawling on them. I had it then, but you took no
notice of it, you thought it was part of just work and doing it.
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
Q. I'm trying to be fair to you, Mr Bell. I'm trying to identify
the point in time when your knee problems became quite
serious and I was suggesting that that was probably in 1986 or
1987 when you underwent arthroscopies. Do you remember
that? There was certainly an arthroscopy on 22 May 1987. Do
you remember that, Mr Bell?
A. Not really, no. Vaguely.
----------Q. Did you think that the arthritis was part and parcel of your
overall knee problems which were, again, part and parcel of
your work?
A. Personally, I was always a fit lad, you don't look at things.
But the arthritis, I think was due to crawling and walking down
the mines. I do honestly think that.”
356.
I am satisfied that by 1990 at the latest Mr Bell knew he had a significant injury in the
form of painful knees which had required an arthroscopy; that he firmly believed that
the working conditions which form the basis of the present claim were responsible for
the condition of his knees. The fact that this was ultimately confirmed as
osteoarthritis, in my view, does not alter the fact that he was aware that he had an
attributable significant knee condition earlier. A reasonable person possessing Mr
Bell’s actual knowledge at that time would have considered the injury to be
sufficiently serious to consider instituting proceedings. The reason that he did not
take the matter further at that stage is, in my view, clear, as it is with all, but Mr
Hughes: he (Mr Bell) thought that his knee problems were just one of those things
that happened to miners and, as a result, gave no thought to the possibility that he
could claim on the basis of his employer’s fault for the “kneeling and walking
distances on uneven ground” and “lifting heavy weights”.
357.
If that had not been my finding, and his date of knowledge has to be determined under
section 14(3), then it becomes more difficult to second guess what a medical expert
would have said, if he had sought advice as to what had been the cause of his knee
problems before he was ultimately diagnosed with osteoarthritis in 2000. However,
given the analysis of the mechanics of osteoarthritis by the present orthopaedic
experts, it is reasonable to infer that a medical expert would, if asked, have attributed
the kind of knee problems which Mr Bell describes and was recorded as suffering to
the activities which he thought were responsible then and now by the claim.
358.
It follows, in my judgment that in his case there was a period of some 15 years of
limitation delay before the issue of the claim.
359.
His reasons for not claiming earlier are that he plainly did not think that he could
claim fault based compensation for what he thought was simply part of his working
life, until he learnt in 2008 that a group claim for knee osteoarthritis was being
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
contemplated. Like others he put himself entirely in the hands of his Union to initiate
advice to bring a claim. He was prepared to follow the advice to make deafness,
COPD and VWF claims, although there is no evidence that he initiated such claims
without first hearing that such claims could be brought. The effect, nevertheless, has
been the elapse of a considerable period of time, during which inevitably memories,
including plainly his own, have dimmed.
360.
There are only limited documents available from Vane Tempest Colliery, mostly to do
with accident and treatment records. There are only 2 witnesses who might be able to
assist about working conditions in part of the relevant periods with which Mr Bell’s
case is concerned.
361.
In addition to the generic problems in respect of cogency of the evidence, a fair trial
has been further compromised by the limitation delay in this case. Taking all these
matters into account, together with the broad merits, I do not regard it is right to
exercise the discretion to disapply section 11 of the Act in Mr Bell’s case.
Brian Thompson
362.
Mr Thompson is 61. He was principally employed at Wearmouth Colliery in the
Durham coalfield as a pipe fitter between 1977 and 1991 when he was made
redundant.
363.
The experts agree that Mr Thompson suffers from osteoarthritis of both knees which
was diagnosed in August 1993. There is no evidence of a meniscal tear. Mr
Thompson underwent a right tibial osteotomy which had to be revised but failed. He
eventually underwent a right total knee replacement in 2001. On the left knee he
underwent a uni compartment knee replacement which also failed and then underwent
a total knee replacement in 2006. He is now complaining of intermittent pain which is
generally worse with bent knee activities in cold weather. He notices swelling on the
knees and there is the occasional giving way. His walking distance is limited to some
50-60 yards using a stick but he notices pain within his knees after 20 yards. He
developed osteoarthritic symptoms in July 1993.
364.
There is an issue between the orthopaedic experts whether or not the fact that Mr
Thompson developed symmetrical osteoarthritis on the medial side of both knees
without a history of injury is evidence of a constitutional predisposition to the
development of osteoarthritis within his knees. They agree that 44 is a young age to
develop osteoarthritis; therefore, age is not implicated in the development of
osteoarthritis of the knees.
365.
The experts discussed the factor of repetitive joint damage in some detail, which is
informative as to the general variety of contributory factors in the development of
knee osteoarthritis. Mr Bickerstaff is of the opinion that Mr Thompson’s work as a
miner is a factor in the development of osteoarthritis in both his knees. Mr Bickerstaff
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
notes that Mr Thompson worked underground for some 20 years in development work
and also as a pipe fitter. Whilst Mr Thompson was not a face worker, Mr Bickerstaff
understands that his work involved heavy, load bearing activities with the knee in a
bent knee position which was of a repetitive nature. His work also involved walking
over rough and uneven ground for long distances. He also did face work under
supervision. Mr Bickerstaff is of the opinion that the type of work he undertook is the
equivalent of a face worker and will have caused him to develop osteoarthritis of the
knees.
366.
Professor Moran is of the opinion that the available scientific evidence has not
evaluated the incidence of knee problems and osteoarthritis in development workers
as a specific group. Thus, it is not as clear cut as a face worker that the work he
undertook would have predisposed him to the development of osteoarthritis. He
agrees that if it could be shown the development work was of such a nature that it
would be similar to the work undertaken by a face worker then this type of work
would have predisposed Mr Thompson to the development of osteoarthritis. Likewise,
underground railway workers employed in wet and damp conditions may be
predisposed to the development of knee problems so if Mr Thompson’s work
resembled this group of workers, Professor Moran accepts that his work was a
predisposing factor to the development of knee arthritis.
367.
There is a further issue between the experts as to whether or not gout was a factor in
the development of osteoarthritis within the knee where there is no clear evidence of
gout affecting the knees in any medical records.
368.
It is noted that Mr Thompson had a normal body mass index in 1972 but in 1989 his
BMI was 31 and in 2009 it had risen to 39.2. Therefore, at the age of 40 he had a BMI
of 31 and then some 4 years later developed his symptoms of osteoarthritis. As a
result, the experts agree that his obesity did contribute to the development of his
osteoarthritis.
369.
Mr Thompson first noticed continuing problems with his knees in about 1987. He had
an accident in 1985 when he tripped on a cable and injured his right knee, but that
cleared up. However, in 1987 he began to notice mild discomfort in the right knee
and subsequently discomfort in left knee. In 1989 he hurt his knee when he slipped
and caught his foot on defective rubber flooring at the pithead baths.
370.
He had claimed damages for both accidents. He went to the medical centre with knee
pain on a number of occasions. By the early 1990s his symptoms became particularly
significant and in 1993 his general practitioner told him that he had osteoarthritis in
both knees. Mr Thompson said he was not sure what this meant and could not recall
asking what caused it. He was fortunate in that he was able to find work outside
mining from 1993 on.
371.
Mr Thompson thought in the late 1980s and early 1990s that the problems with his
knees were caused by general wear and tear with knocks and bumps as a result of
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
working in the mines. He said that if a miner slipped and twisted his knee he did not
bother reporting it – it was just part and parcel of the job. He thought kneeling could
have contributed to the knee problems when carrying heavy weights, together with
walking uneven surfaces every shift.
372.
1993 is his agreed date of knowledge, so 15 years elapsed before proceedings and
there has been limitation delay of some 12 years.
373.
He first found out about claiming when received a letter from Durham Colliery
Mechanics Trust (DCMT) in early 2008. They put him in touch with solicitors. That
is his reason for not making an earlier claim.
374.
The majority of the documents available in his case are accident book or treatment
book entries. There are very few useful documents to cover Mr Thompson’s
employment.
375.
8 potential witnesses have been identified, who cover almost the entirety of the
relevant period.
376.
In common with others, there has been significant limitation delay in this case in
which it is right to infer that, even with witnesses who might be able to shed some
light on the issues, memories will have dimmed over the period of limitation delay so
as seriously to compromise a fair trial of the likely issues.
377.
In my judgment, for all the reasons I have considered, together with the broad merits, I
do not exercise my discretion to disapply section 11 of the Act.
William Davison
378.
Mr Davison is 58. He was employed principally as an electrician at Boldon and
Westoe Collieries in the Durham coalfield between 1969 and 1989 when he left to
work outside the industry. He continues to work as an electrician in well paid work.
379.
The experts agree that Mr Davison has osteoarthritis of the right knee, which was first
diagnosed in July 1984. There is no evidence that Mr Davison has any arthritis in the
left knee and there is no record of him suffering a torn meniscus. They agree that he
suffers pain in the right knee, both at rest and when walking, and also gets pain at
night. The pain is worse when he is walking and this restricts his walking distance.
Mr Davison has a permanent deformity of the knee. Based upon the medical records,
Mr Davison first developed symptoms in his right knee in February 1974. It is
recorded that he had more serious symptoms starting in March 1984.
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
380.
The experts agree that since Mr Davison was diagnosed with osteoarthritis in the right
knee when he was 31 years old age is not a factor.
381.
They agree that it is likely, on the balance of probabilities, that working as a miner at
the coal face for approximately 16 years work was a factor in the development of
osteoarthritis in his right knee.
382.
Mr Davison claimed to have played football up to the age of 30 years. Both experts
agree that repetitive impact sports may predispose people to developing knee arthritis.
However, this is only a major factor in the event of there being a significant knee
injury. The medical records clearly indicate that he suffered a number of injuries to
the right knee playing football. However, there is no evidence, the experts concluded,
that Mr Davison suffered a serious knee injury (such as meniscal tear, ligament tear or
fracture) whilst playing sport. Suffering this type of serious knee injury would be a
major factor in the development of knee arthritis and the experts agree that there is no
evidence that Mr Davison suffered this type of severe injury playing sport.
383.
However, when this was explored in cross-examination a potentially different picture
emerged.
384.
In this respect, the experts noted that Mr Davison was suspected of having a torn
cartilage in 1984 but that this diagnosis was never confirmed. Both experts agree that
it is quite possible that Mr Davison did suffer a tear of the lateral cartilage of the knee
and this type of cartilage tear could occur at work, in normal day to day activities or
during sport. However, in the absence of any objective evidence that Mr Davison has
suffered a torn cartilage in the knee, the experts agree that cartilage tear remains a
possible rather than probable cause of his osteoarthritis.
385.
In conclusion the experts agree that Mr Davison has osteoarthritis of his right knee
and have delineated the factors that contributed to the development of osteoarthritis
and also resulted in an acceleration of the progression and symptoms of this condition.
They agree that the following factors have contributed to the development of
osteoarthritis in Mr Davison’s knee: repetitive joint damage as a result of work; sport
may have been a factor.
386.
Although the experts agree that there was no evidence that Mr Davison suffered a
serious knee injury whilst playing football, that situation has potentially changed.
387.
The orthopaedic experts agree that the following factors accelerated the progress and
symptoms from Mr Davison knee arthritis.
388.
Mr Davison continued in heavy industrial work after leaving British Coal. The
experts agree that these activities may have caused some acceleration of the knee
arthritis.
His Honour Judge S P Grenfell
Approved Judgment
Miners’ knee group litigation 7LS50038
389.
Mr Davison’s date of knowledge is agreed to have been in 1984.
390.
Mr Davison, it is recorded, suffered numerous accidents between1969 and 1982 at
Boldon. He clarified that the accidents reported would only have been ones that were
particularly painful that generally he would not have attended for minor knocks and
bruising. As with other lead claimants, it seems to me that this represents common
sense. It was clear that only accidents which involved some treatment were reported.
391.
He could not be expected to recall the many entries, although he did recall an accident
in the mid 1970s, because it caused him to be referred to hospital: his foot had slid
forward on a sleeper and he wrenched his knee, which he believed was the right knee.
392.
He first noticed pain in his right knee in the early 1980s. It started aching after he
finished his shift and got worse as the week went on. He was still playing football and
he began to notice it was sore after playing. In his written statement he said that in
1982 he gave up football and that he did not recall any serious injuries playing
football. His general practitioner’s notes, however, record for15th February 1983
‘Pain in knee (R) plays football’. Mr Davison said he could not remember what
caused his absence from work in March 1984. However, close examination of his
medical records show 12th March 1984 ‘Traumatic Effusion (R) knee’. He continued
to obtain sick notes, it seems, till the Autumn of 1984. It was in the July of 1984 that
he was diagnosed with osteoarthritis of the right knee by orthopaedic surgeon, Mr
Win. This consultation, Mr Davison only vaguely recalled. Apart from this and the
advice that his general practitioner had given him not to return to work in August of
that year, Mr Davison professed to have no recollection of this time. Moving forward
in time to an entry 24th October 1994 reads ‘Wants Med 3 for 7/10/94 – 17/10/94
after footballing injury to (R) knee. Not seen by any doctor, now back to work.’; an
entry for 28th August 1998 recorded ‘loose body R knee. Old football injury.’
393.
Returning to 1984 it was remarked that the national miners’ strike took place between
March 1984 and March 1985. For the purpose of obtaining benefits he had a DHSS
examination April and May 1984. On the 16th April 1984 Mr Davison was referred
by his general practitioner to orthopaedic surgeon Mr Wynn ‘This man is having a
great deal of trouble with his right knee which I think is a torn cartilage. He works as
a miner and is unable to do his job …’. What is of interest, however, is that some
time during the summer of 1984 it appears that Mr Davison made an insurance claim.
His general practitioner wrote to the insurance brokers on the 19th September 1984.
The letter includes the following: ‘From my records on the 11th March this year Mr
Davison was kicked in the right knee. Shortly after this the knee became swollen and
the swelling the improved. He was seen by Mr Win [sic] … who diagnosed a torn
cartilage … and intended to remove it but then found on x-ray that the patient also
suffered from considerable osteoarthritis in the joint.’
394.
It is difficult to see how any conclusion could be reached other than that Mr Davison
was plainly still playing football in early 1984; that the injury to his right knee in
March 1984 was not only a football injury but was a significant injury sufficient to
keep him unfit for work for several months, albeit that he would have been on strike,
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
with regular attendances of his general practitioner; for him to claim benefits and to be
referred to an orthopaedic surgeon; for him to make an insurance claim. The further
likely implication is that either Mr Davison has a poor recollection of what must have
been a significant period of time for a number of reasons, or he was less than frank as
to the significance of the football injury in March 1984. Either way, it seems to me
that the general cogency of the evidence to be called in support of his claim has been
adversely affected by the passage of time since his date of knowledge; that the
orthopaedic experts are likely to revisit their opinions as to the causation of his
osteoarthritis.
395.
His evidence which bears on the reasons for his not claiming until 2008 is as follows.
He left mining in 1989. He has always considered that his knee problems were as a
result of wear and tear, in common with other claimants. Specifically he said that,
because he was right handed, when crawling he would lean forward with his right
hand so his right knee would move forward first and so that was the knee that would
bang on the chocks.
396.
The delay between the expiry of the primary limitation period in 1987 and the issue of
proceedings was 21 years.
397.
It seems that only the following relevant documents are available in Mr Davison’s
case: plans and accident investigations from Boldon colliery and minutes of Pit
Meetings at Westoe for the period January 1982 to January 1984 together with some
Safety Committee minutes for a period from 1989. There is just the one witness, a
former Under-Manager, who is willing to assist in respect of working conditions at
Boldon and Westoe collieries in the 1980s.
398.
When I consider the generic problems of cogency of evidence coupled with the
significant limitation delay together with consideration of the broad merits, in my
judgment, it is not right to exercise discretion under section 33 to disapply section 11
of the Act in Mr Davison’s case.
Conclusion
399.
I have the highest respect for the men who worked the coal mines during the periods
covered by this litigation. The nature of their heavy and demanding work and the
varied conditions underground, including often very confined working conditions,
were bound to take their toll on their bodies and, in particular, their joints. However,
no one could expect to launch a claim based solely on the premise that it was
negligent by the standards of the day to require men to work in those difficult
conditions. The law demanded that they should not be exposed to unnecessary danger
and risk of foreseeable injury and for certain aspects of underground travelling and
working imposed strict statutory duties requiring practicable steps to be taken against
foreseeable sources of danger and injury. Each of these lead claimants I have
accepted can lead cogent evidence as to where they worked at any given time and as to
the varying degrees to which they suffered regular jarring and stresses to their knee
His Honour Judge S P Grenfell
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Miners’ knee group litigation 7LS50038
joints as a result of repeated minor trauma and physical stress inherent in their work
underground. However, for the reasons that I have given, there are too many obstacles
in the way of a fair trial of the extent to which the minor trauma and physical stress
could have been avoided, so as to prove negligence or breach of statutory duty as
related to the various possible causes of such effects.
400.
The preliminary issues therefore are determined in that the dates of knowledge of each
of the lead claimants has either been found or agreed. I have also demonstrated the
reasons for not exercising the section 33 discretion in respect of each lead claimant.
401.
There now needs to be consideration of how this decision impacts on the remainder of
the claimants in this group litigation. In view of the wide range of lead claimants
selected, I anticipate serious difficulty for any to bring themselves into a separate
category by which they could establish a date of knowledge that would bring them
within the limitation period prescribed by section 11 of the Act; or by which
discretion could be exercised to disapply section 11.
402.
I was particularly pleased to learn that industrial injury benefit specifically for knee
osteoarthritis was finally recognised last year in 2009. I am afraid, however, that it is
small consolation to those who have had their hopes of greater compensation raised by
this litigation.
403.
Nevertheless, I am indebted to the lead claimants for their contribution to this
important preliminary issue, to the efforts that each of them has put into the
preparation of the trial and to the dignity with which they gave their evidence.
404.
I am also indebted to the legal teams on both sides who have worked with such
efficiency to ensure that the preliminary issue was tried proportionately, and, in
particular, to counsel for their careful attention to detail and helpful submissions both
oral and in writing.
405.
Finally, for obvious reasons, until this judgment was finalised, it was not possible to
address me as to consequential directions, in particular how my conclusions in respect
of the 8 lead claimants affects the Group generally. Where I have indicated matters
which, in any event and regardless of the cogency of evidence and other generic
considerations, would have caused me not to exercise my discretion in favour of a
claimant, I have said so.