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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> AB & Ors v British Coal Corporation & Anor [2004] EWHC 1372(Summary) (QB) (18 June 2004) URL: http://www.bailii.org/ew/cases/EWHC/QB/2004/1372(Summary).html Cite as: [2004] EWHC 1372(Summary) (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/06/2004

SUMMARY OF JUDGMENT COAL MINING CONTRACTORS

Preliminary

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

General Introduction

2. In the circumstances set out below, the Department of Trade and Industry (DTI) seek to recover contribution, under the provisions of the Civil Liability Act 1978, or indemnity, in contract, in respect of some of the liability which they inherited by statutory subrogation from the former British Coal Corporation (British Coal). From the late 1950's/early 1960's, British Coal (National Coal Board, as it was then constituted) started to employ contractors to execute work connected with major developments in their underground mines. Over the period up to 1994, between five and six thousand men may have been so employed at any one time. The main purpose of such work was to enable new production faces to be opened up, an essential feature of any systematic mining of coal. The nature of the work was essentially tunnelling, which is an everyday part of civil engineering construction. In addition to underground work executed in existing mines, shaft sinking and the opening up of new mines was also included in the work which was contracted out. The practice of using contractors in this way was spread across coalfields, although some areas were more reluctant than others to make use of their services.
3. The terms of contractors' employment were then determined by the Purchasing and Supplies Department as supplemented by instructions issued by Area organisations into instructions issued by colliery managers. As Dr Jones, who became the last Head of Mining for the former British Coal, was to say:

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

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

The current litigation

4. The liabilities of the former British Coal were transferred to the Department of Trade and Industry under the provisions of the Coal Industry Act 1997. In the case of Griffiths and Others v British Coal Corporation, judgment in which ("the original judgment") was delivered on 27 January 1998, British Coal was found liable to compensate a selection of miners and former miners in respect of damage caused to their respiratory systems following work underground in the course of their employment. The medical conditions in respect of which compensation was held to be recoverable were identified as chronic bronchitis, emphysema, small airways disease and temporary exacerbation of asthma (but not its initial causation). These conditions have been described collectively as chronic obstructive airways disease, allowing the acronym COAD or chronic obstructive pulmonary disease and the acronym COPD. It is the latter which will be used throughout this judgment.
5. Since judgment was delivered as above, the numbers of claimants have swelled dramatically, such that claims now number in excess of 550,000. In financial terms, this has led to a potential liability which amounts to something in excess of £3.5 billions. In these proceedings, the DTI seek to recover contribution and or alternatively indemnity from the independent contractors in respect of the compensation which they have paid to men who at some stage in their lives worked for Contractors and also for British Coal. The broad grounds asserted are that the Contractors were in a number of particular respects also at fault so far as those men were concerned and that such fault contributed, at the least, to some of the injury of which complaint is made. It is implicit in the nature of these proceedings that British Coal was itself, as the DTI accepts, concurrently in breach of its duty of care to those same workmen. British Coal do not, nor could they, seek to challenge in these proceedings any of the relevant findings in the original judgment. The basis of this necessary precondition to the DTI's right to proceed against the Contractors is to be found fully set out in that judgment. Throughout the proceedings and this judgment, the Contractors are referred to as the Third Party – modern nomenclature (Part 20 Defendant) does not readily lend itself to a clear understanding of the true characteristic of a conventional third party.
6. Following the original judgment, and realising the possible extent of the claims which would be forthcoming, the DTI entered into a scheme with the Claimants' solicitors, the intention being to enable the vast majority of those claims to be disposed of administratively, and without further reference to the Court, save for the purposes of review of the operation of that scheme. The scheme, the Claims Handling Agreement (CHA), was subsequently approved as a reasonable basis for settlement of the claims by the Court, in its role as manager of the Group Litigation of which the original claims and the present claims were and are both a part. The Agreement was the product of much careful, detailed and technical negotiation by the original parties to the litigation and their legal and professional advisers including a team of medical advisers.
7. As has appeared in practice, some parts of the scheme have been found not to be meeting the intentions of the parties as they would have wished, the consequence has been that it has been amended from time to time to reflect those needs, and has been further approved by the Court. In all essential respects, however, the scheme has met, and is still meeting its objectives, although from the point of view of many claimants it has appeared that the active participants, namely the DTI and the Claimants' solicitors, have introduced unnecessary delays in the process. This is a separate issue, which is one of those reviewed by the Court on a regular basis and need be of no more concern in these proceedings.

Basis of present claim

8. The claim by the DTI is that the Contractors were as much in breach of the relevant duty of care towards their workmen, also in many of the same respects, as British Coal had been found to be towards its workmen in the original proceedings and thus it makes its claims. These are founded both in contract and also for contribution under the provisions of the Civil Liability (Contribution) Act 1978. The claim in contract is also founded on two bases. First, there are alleged breaches of the express terms of the specifications within the contracts under which the contractors performed their works. Secondly, the DTI, as the now Defendants, rely on express indemnity clauses to be found in the relevant general conditions of contract as they were from time to time. The Contractors' answers to these claims have been to deny they were in breach of contract and that, if they were at fault at all, it was of so limited and infrequent occurrence that it is not a case where it would be just or equitable that they should be ordered to make either contribution or indemnity. The Contractors also contend that, in acting as they did, they did no less than the contracts, when properly construed, required of them. Insofar as the claim for indemnity is concerned, it is they the Contractors, not the Defendants, who are entitled to claim indemnity by relying upon the indemnity clauses in their favour contained in those same conditions of contract. The Contractors also raise other arguments of substance.
9. In particular, the Contractors rely on the existence of the detailed and elaborate statutory scheme which was at all material times embodied in the Mines and Quarries Act 1954 and subordinate legislation which make meticulous and detailed provision for management of coal mines as well as every aspect of safety of any individual who goes underground for the purposes of his work. It was within such a regime that the Contractors were required to operate. Apart from this, the Contractors were under contractual obligations to British Coal, which were largely uniform, albeit the specifications of individual contracts would of necessity differ as to detail according to the work which they were required to execute. It was said that the terms of the contracts left little, if any, scope to the Contractors to perform their work in any other way than British Coal determined, that was "the British Coal way". It was accepted by the Third Party that they were, nevertheless, not relieved from having to comply with their common law obligations towards their workmen. It was further accepted that, despite these statutory and contractual provisions and restraints, the common law duties of the employer were 'non-delegable'.

Additional Issues:

Extent of contribution or indemnity

10. The contractors took exception either to the whole or just in regard to certain aspects of the CHA, as a basis upon which a claim for contribution under the Act of 1978 could properly be founded. The grounds upon which reliance was placed here was that, in certain limited respects, the CHA does not reflect the principles of common law which govern the assessment of damages. This consequence flows, it was argued, from various of its provisions which enable some claimants to be excessively compensated while in other respects there is scope for double recovery by claimants who have claims both in these proceedings in respect of COPD but in the other major occupational health claims brought against the former British Coal relating to vibration white finger (VWF) and, possibly, deafness. In addition, in other particular respects, the awards of damages to individual claimants are excessive, and therefore unreasonable, because the respiratory specialist (RS) who performed the medical assessment (MAP) on those men, because he has either misunderstood or misapplied the criteria written into the CHA, or has failed to take properly into account, evidence in the individual case, or information which was contained in his medical records or revealed by the tests which were performed for the purposes of the assessment.
11. Notwithstanding, these generalised answers to the present claims, the Contractors accepted through their Counsel that there will have been times when as a matter of probability occasions must have arisen when an employee would have been exposed to excessive dust and that the Third Party would have been in breach of such duty of care. [V1.p3]

The present proceedings

12. Seven Lead Claims have been selected either by the parties or as ordered by the Court. One other claim (Mellor) was included for consideration by the Court because it raised a limited, but potentially important, issue in relation to the attribution and quantification of a relatively minor disability. These cases are intended to be representative of men who worked for Contractors for some, at least, of their time spent working underground. All Lead Claimants also worked for a substantial part of their working lives for British Coal and have already been compensated under the provisions of the CHA. It is in relation to the recoverability of some part of the compensation so paid that these proceedings are brought.
13. Generically, the claim is that the Third Party were guilty of many of the shortcomings that were found against British Coal in the Griffiths proceedings. Inevitably, as the owners of the mines and employers of the managers and workmen employed therein, the duties of the Defendants were by Statute and Regulations more extensive and rigorous than those under which Contractors worked. But reliance is placed by the Defendants on (relevant) generic findings in the original judgment:

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

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

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

(v) Failure to attend to 'housekeeping' within the mine, such as attention to chutes , transfer points, spillage on conveyors, dusty roadways and the like;

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

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

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

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

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

14. One such addition was the allegation that because Contractors were remunerated under their contracts on the basis of rate of advance, or "yardage", there was an incentive on the men, who were also paid bonus for the progress made, to re-enter the working area or 'face' of the heading too soon after shotfiring, at a time when heavy concentrations of fume and dust were still present. Such conduct was not only in breach of the requirements of the Coal Mines (Respirable Dust) Regulations 1975 (RDR), after they came into force on 1^st January 1975, but was also a breach of one of the Shotfiring Regulations (see below). It is the fact that before any man was permitted to work unsupervised underground, he underwent training by British Coal and received a training certificate.
15. The Third Party have been selected from the body of contractors who have worked for British Coal from the 1950's until the time when the mines were returned to private ownership in 1994, and subsequently. The historical scope of these proceedings falls within this timescale. As it happens, the nominated Third Parties are the largest of the firms of contractors who carried out development work and were the only ones who undertook shaft sinking and repair work in addition to constructing headings, roadways and drivages which are the underground areas with which this litigation is particularly concerned.
16. As might have been expected with so large an organisation as British Coal, there were attempts at standardisation of the terms upon which they contracted for the supply of goods and services. There were two major editions of Standard Terms and Conditions. These will be separately considered in detail under Contract Issues (Chapter 3). In summary, for present purposes, the thrust of both sets of conditions was similar, although the format obviously differed. Under both versions of the terms, a contractual obligation was placed on the Contractors to comply with the provisions of the Mines and Quarries Act 1954, in particular sections 55 (ventilation) and 74 (minimise dust), as well as the RDR after those Regulations had come into force. One of the questions to arise in these proceedings will be the extent to which the statutory obligations, to which British Coal was subject, could also be applied to the Contractors while working in British Coal mines.
17. In addition to disputes over the contractual and common law position of both parties, there are also significant challenges over the extent to which the CHA should have been held to be a reasonable attempt to settle all the outstanding claims which had been brought against the Defendants and whether the Third Party, which was not a party to it, may nevertheless be bound thereby. It is the Third Party's case that in certain identified respects, the CHA results in over-generous compensation to claimants and that, as the result of lack of clarity of instructions issued to RSs and the claims assessors, non-respiratory co-morbid conditions which could impact on overall disability were ignored. As well as this generic challenge, it is also disputed that RSs properly assessed the disability of each Lead Claimant, with the result that there have been "overpayments", as compared with compensation which would have been paid at common law, sums for which the Third Party is not, therefore, liable to contribute.
18. From this short overview, it will be understood that the issues in these proceedings are many, complex and varied.

Methodology of the CHA

19. In the light of the judgment in the original litigation, the objective of the parties in entering into the CHA was to enable the awards of compensation to qualifying miners and ex-miners to be assessed without the need for any further Court proceedings, while at the same time, so far as practicable, replicating the common law principles upon which damages should be awarded as were set out in the CHA. Reference to the introduction to the CHA, is instructive in this respect.
20. All claims made or intended to be made against British Coal for COPD were stayed under the terms of the Group Orders which were made on 6 March 1966, 31 March 2000 (especially paragraphs 3 and 4).
21. In order to further the objects of the CHA, the DTI appointed Irisc Claims Management Ltd (IRISC) to assess the claims which would be forthcoming. In summary, the procedure set out in the CHA provided for two methods of pursuing claims according to whether a claimant had provided a medical report on joining the scheme, or he had not. Thereafter, if IRISC were able to make an offer on the basis of the information contained within the report, subject to being satisfied in respect of the employment record among other matters, it would do so. If not so satisfied, then the Claimant would have to proceed to the MAP. In such a case the Claimant has then to complete a Claims Questionnaire (CQ) and submit to examination by a specially appointed Respiratory Specialist (RS) who would be required to follow the procedure contained within Schedule 7 to the CHA. The procedure is detailed, as will appear from relevant the sections which are reproduced later in the judgment.
22. The Guidance Notes to the RSs, contained within the CHA, also provide that the assessments are to be based on the test of "balance of probability" both as to the presence of one of the relevant conditions and as to the presence, or otherwise, of disability and co-morbid conditions "and the contribution they may or may not make to overall disability". At a later stage of the judgment, it becomes necessary to examine, in some detail, the contents of the Medical Assessment Process (MAP) forms in respect of all the Lead Claimants, whose claims have been settled by IRISC, all of which are now challenged as to their validity by the Third Party.
23. Annex 7a to the CHA contains the, all important, instructions (Guidance Notes) to RSs. After a number of introductory paragraphs, these provide:

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

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

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

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

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

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

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

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

The effect of Non-Cardiorespiratory Co-morbid Conditions on Disability and Impairment

38.17 Keep in mind the difference between impairment of lung function and the disability resulting from that impairment. In order to have any respiratory disability assessed the Claimant must experience some breathlessness. If, for example, a Claimant had mild lung function impairment but was chair and bedbound due to severe arthritis so that he was never able to take enough exercise to experience breathlessness, he would not be assessed as having any respiratory disability.

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

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

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

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

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

No fewer than eight alleged deficiencies were identified.

29. The legal basis underlying these alleged deficiencies, may be formulated in the proposition that it is for a defendant who is to succeed in his claim for recovery from a stranger to those proceedings, and who seeks contribution towards the settlement of his consequent liability, in respect of a claim made against him, to prove that the settlement was in fact reasonable. If, by reason of the omission of some important consideration, or it might be inclusion of some irrelevant matter, it was not reasonable, then payment of compensation should be regarded by the court as a voluntary assumption of liability and should not to be imposed on a stranger to the original litigation.
30. Schedule 10 of the CHA contains the tariffs for general and special damages, which are schemed. The provisions contained in this schedule are comprehensive, detailed and complex. Fortunately, they need not detain us, since no issue arises in connection with them in these proceedings. The Third Party raised no issue in respect of the amounts contained in these tariffs. It will be remembered, however, that in the original judgment, there was much discussion about how the apportionment of damages should be performed. The need for this arose because of the diversity of factors such as the numbers of years underground, the impact of limitation in respect of employment before 6 June 1954, respirators, smoking and job factors (by which an attempt was made to reflect the fact that different categories of underground employments in different coalfields would have undergone varying exposures to harmful (tortious) dust). It is implicit from this last variable that illness resulting from exposure to respirable dust, which was at or below the irreducible minimum, would not, therefore, yield any entitlement to compensation.
31. Schedule 11 apportions awards, by a methodology which takes into account factors such as:

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

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

(b) The Claimant's smoking history is [assessed on the basis of] the … equivalence … that one year's heavy dust exposure equates to one year's average smoking.

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

32. Finally, in terms of allowances, provision is made for respirator, more properly dust mask, use or otherwise. This is in the following terms:

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

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

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

(a) An agreed employment history; and

(b) The smoking history as verified by the respiratory specialist.

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

Enough has been written above to indicate that the task of devising a scheme for the assessment of compensation which would be fair to both parties under a practical administrative framework was likely to prove contentious and of extreme difficulty. That a scheme was in the end formulated, it had taken some 18 months or so from the date when the original judgment had been given, is testament to the endeavours of all those involved to reach a just settlement. As a matter of history, the scheme was put before me and approved on 24 September 1999. At a later stage the scheme was again subjected to judicial scrutiny in the case of Tasker v British Coal, a case in which the Court's approval had been sought in the case of a miner who was under disability. Curtis J gave his approval on 24 April 2001.

It is necessary to stress the importance of understanding the fundamentals of the CHA. Compensation is awarded on the basis of schemed awards for general "damages" which bear some correlation with awards of general damages at common law. The amount of the award is in part determined by the application of a number of averages which are assumed to be true but, because of the very nature of an average are unlikely even to be true in the absolute sense.

33. A decision was taken that, such were the complexities of the individual case, a live examination of those who rejected the scheme for accelerated payments (see above) was a practical necessity. In deceased claims, there is, of course no possibility of examination as such, the process has to be entirely paper based. Of necessity, the assessments in such cases are more speculative than with live Claimants.
34. The joint statement of the RSs who are a part of the medical reference panel also contains a rationale for the development of the scale of disability (which is incorporated into the CHA). Importantly, the authors wrote:

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

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

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

6. The authors of this report have, over the course of the last 20 years, between them produced reports for the courts in some twenty thousand respiratory disease cases. It is our view that the medical assessment process in its entirety (including its audit, appeals and process monitoring components) constitutes a system which is as fair as can reasonably be achieved, given the scale of the (BRCDL).

7. It is our opinion that the depth and systematic nature of the medical assessment process and the quality control procedures mean that the assessments are, on average, at least as robust as those conventionally used in management of disease claims in civil litigation. Further, the consistency between assessments is far higher than that which is achieved by the conventional personal injury claim process, even where various medical experts are reporting on a series of claimants with similar diseases.

37. There was challenge to this Olympian view of the MAP process in the respect that there was a lack of clarity in instructions issued to RSs when they came to deal with co-morbid non-respiratory conditions. It was the view of Dr Rudd that a RS could be left to mention such a condition in the MAP form, although he would not be expected to step outside his specialist field and assess the relative impact of a co-morbid non-respiratory condition as compared with a respiratory condition. It would be for the loss adjuster (IRISC) to note the existence of such a condition and make whatever adjustment was necessary and reflect it in the award.
38. In addition to these points, when consideration came to be given to the MAP, it was the case for the Third Party, supported by evidence from Dr Stenton, that there were examples of erroneous diagnosis or assessment in each and every one of the cases, such as to demonstrate that the process was flawed, both as devised as well as in its operation. This last aspect will be considered when the individual cases are discussed below. It is, however, necessary to consider whether, if the challenges are found to be well made, they would afford any ground for reducing the extent of the Defendants' claim for contribution. The reason for the existence of this apparent anomaly would lie in the fact that it is not the reasonableness of the individual settlement that matters, but whether the scheme which is represented by the CHA does represent a reasonable attempt, when viewed as a whole, to provide a settlement of the liability of the DTI to the cohort of claimants in the BCRDL. One consequence which would flow, if the Third Party is held liable to make contribution, and also entitled to make individual challenges to assessments, would be that in each and every case it would enable the Third Party to reopen the assessment process and delay the attempt by the DTI to enforce the Third Party's potential and consequent liability.
39. It is of crucial importance to the future course of this litigation to determine, if the Third Party are found to be under any liability to contribute, whether and, if so, how far the Defendants can rely upon the CHA as an agreement to "make any payment in bona fide settlement or compromise of any claim made against him as constituting 'damage'", in respect of which they are entitled to make a claim for contribution for the purposes of section 1(1) and (4) of the Civil Liability (Contribution) Act 1978. Alternatively, the question may be whether or not the Defendants can be permitted to rely on the assessment of claims under the CHA for the purposes of recovery of damages for the consequences of a breach of contract or indemnity, if statutory contribution is not a remedy available to the Defendants, for the purpose of meeting the requirement to receive some form of monetary restitution as the result of the Third Party's breaches of contract, the law will be seen to have failed.
40. In their closing submissions, the Third Party stated their position in regard to the CHA as being:

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

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

Despite the conciliatory nature of this stated position the Third Party denied that it was bound by the terms of the CHA or affected by the fact that judicial approval to the scheme had been given on two occasions, both by Curtis J (in the disability cases) and by myself. In this litigation, the nature and effect of the CHA is of fundamental importance. It has provided the basis of compensation to many thousands of miners or ex-miners and will continue to do so until all cases within the scheme have been disposed of. It is also the basis, in the sense of quantification in money terms, of the current claims for compensation for disability caused by the fault of one or other of the parties. The stance adopted by the Third Party has throughout been an ambiguous one. The uncertainty revealed by the above quotation from leading counsel's submissions was embarrassing to the Court, as well as to the Defendants.

41. It will not have escaped attention that the overall reasonableness of the CHA was not put in issue. Nor yet was it put in issue that it was reasonable of the original plaintiffs (claimants) to have entered into some scheme for the non-forensic assessment of the compensation to which they were held to be entitled by the original judgment. A necessary consequence of this position is that some form of scheme for the assessment of compensation was unavoidable and theoretically reasonable.
42. The substantial purpose of selecting eight lead actions was to enable generic, and therefore binding, findings to be made, so that hereafter there could not be any challenge to the methodology of the CHA approach to the diagnosis of chronic bronchitis. Precisely similar considerations apply with regard to the diagnosis of COPD.
43. One of the key questions for decision is how the court should respond to or give effect to such challenges. The Defendants' response by way of submissions was encapsulated by the propositions underlying the following questions:

1. Was it reasonable for the Defendants to use the CHA (including the MAP), as agreed with the CG, as the basis of settlement of group litigation under the BCRDL, including the eight lead cases in the current litigation?

2. Did the assessments by the individual respiratory specialists fall within the parameters of reasonable clinical diagnosis reached, subject to the constraints imposed by the CHA and guidance notes (supra)?

3. Was the settlement made by the Defendants in the individual case a reasonable one?

44. It will assist in gaining an understanding of the problem, and its solution, if it is explained more particularly why it was decided to approach the disposal of individual claims in the way provided in the CHA. In the light of the massive numbers of claims which had already been made, and which were anticipated would be made, there was an overriding necessity to reduce the amount of litigation which would otherwise have been generated. Secondly there was a need to have regard to resource implications (provision of judges, courts, legal teams), not just in terms of the administration of any scheme which would have been necessary to dispose of the claims, but also to have regard to the availability of RSs in the mining areas in which claimants lived. Since many claimants were quite seriously ill, they would have to be examined by RSs who needed to be able to access the examination facilities which have been specially provided and are located, reasonably conveniently to the claimants, in or near traditional mining areas. It should be noted that domiciliary visits are also provided for those claimants who are too ill to travel. These problems obviously do not arise with the deceased claims, since they could be assessed, as they have been, by RSs from parts of the country remote from the mining areas. As a matter of certainty, based in part on the experience of the Court in reviewing progress of settlement of claims under the CHA, it would not have been remotely practicable to have tried to preserve the common law situation in which each party would instruct its own expert. Similarly, the fact that there are centralised facilities both for documenting employment histories and obtaining medical records favour a centralised method for assessing compensation.
45. Any attempt to dispose of such a volume of cases through conventional common law procedures would also have introduced the inevitability of delay in ensuring that compensation reached the neediest first and that, thereafter, there was a reasonable basis for prioritisation of claims, including the ability to make interim payments in situations where, at common law, such would either not have been possible or would have been unworkable. A further great advantage of the scheme provided by the CHA was the ability of the parties to devise a computer based system (as to which see later) for analysing and systematising the various elements in the claims for the complicated process of making assessments of compensation which could be operated by lay assessors. Those assessors had received a training which would enable them in a reasonably expeditious manner to collate the essential medical details after they had become available through the MAP.
46. Undoubtedly also, and importantly, the fact that compensation under different heads was schemed within the CHA enables a degree of demonstrable consistency in the individual awards to be achieved. Fairness as between miner and miner is manifest by reference only to the provisions in the agreement. However, in respects which become clear, when discussion takes place in regard to the awards made to the Lead Claimants in this litigation, the Third Party argue for the scheme compensation to be compared with common law standards for awards of damages on an individualised basis and be judged accordingly. The argument proceeded along the lines that provided, in any given case, the award did not exceed what would have been awarded at common law, that award could form the basis of a claim for contribution. If, however the award, as calculated under the scheme exceeded the common law figure, then the Defendants were limited to the common law amount in terms of their recovery of contribution. No allowance could be made for the fact that in some cases under the scheme, awards might be reduced as compared with common law while in others they might exceed such amounts.

In final submissions, Mr Owen conceded that:

(T)ere are a number of strengths which underpin the CHA identified by Dr Rudd and Dr Moore-Gillon about which we have no complaint. My Lord, in the cross-examination of both Dr Rudd and Dr Moore-Gillon, we start with the general proposition taken from their joint report that the MAP process is as robust as the process one encounters in the ordinary conventional assessment of a claim. … In other words, comparing the so-called unitary action that my learned friend refers to in his submissions; it is in fact as robust as that envisaged under the CHA. … There is, in other words, properly followed, a clear comparison between the unitary action and the MAP examination.

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

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

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

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

48. The final distillation of their position was essentially as follows:

1. The absence of any apparent identifiable duty on the part of IRISC critically to scrutinise each claim/MAP. It was merely the duty of an IRISC assessor to calculate an appropriate award in accordance with set formulae unless there was some obvious departure or omission from the CHA scheme;

2. Apportionment in cases where there was a co-morbid condition and financial losses only took place if that condition impacted adversely upon respiratory disability; otherwise it was ignored;

3. The claim would only be subject to apportionment if the co-morbid condition impacted adversely on respiratory disability;

4. Claimants were receiving compensation calculated otherwise than in accordance with well established principles at common law in non respiratory co-morbid cases with resulting over-payment; in concrete terms, the agreement made no allowance for supervening events or conditions;

5. Compensation in respect of chronic bronchitis was frequently awarded although the strict requirements of the MRC definition for this complaint were not corroborated in medical records. This was elaborated to a complaint that where, in a case in which there was no corroboration to be found in the records, the decision whether or not to make the diagnosis depended on a mere "test of recollection", in a situation in which a Claimant would invariably give the correct answers.

6. (Advanced in a generic report by Dr Stenton, but not canvassed by evidence) The Disability Rating Scale made no allowance for a claimant's age;

7. (As in 6.) A similar complaint, in relation to exercise testing and the Disability Rating Scale.

49. It was submitted by the Third Party that it would not be proper for the Court to impose the agreement on them when they had not been party to its formulation. Unlike the position of an individual claimant who was subject to a derogation of his common law rights just by making of a claim which fell either to be stayed under the order of the Court (above) or had to proceed under the aegis of the CHA, it would not be right to curtail any of the Third Party's rights, principally to contend that any scheme which did not replicate all the principles of assessment of common law damages was, therefore, unreasonable.
50. The overwhelmingly distinctive feature of the current litigation is the uniquely large volume of claims which have to be attenuated by means of a settlement process either overseen by the Court, or by way of an administrative scheme. It is this feature which was the driving force behind the creation of the CHA. It is also this feature which required the Court in the exercise of its inherent power to manage this group litigation by giving approval to the CHA, so that other business in the Courts would not be incommoded by the existence of the large number of claims which needed, and still need, whether by means of adjudication or mediation, disposal through the auspices of the CHA. There was, and is, a wide public interest in the removal of this mass of litigation from the public to the private arena. An equally pressing consideration is that if it be held that "settlement" for the purposes of statutory contribution can only mean settlement in an individual case, the Third Party will have the right as between themselves and the Defendants to challenge the validity of many tens of thousands of awards which have already been made and those which are still awaiting 'settlement'
51. In my judgment, there is a need for early finality to the scope for numberless disputes about individual awards to individual claimants, which arguably may necessitate the Court, in the exercise of its inherent powers, to impose a pragmatic solution on the parties if it should find that (1) the Third Party is liable at all and (2) the CHA is found to be deficient in any of the respects contended by the Third Party so that not only is a degree of fairness imparted to the proceedings, but also that it is tempered by the need to advance the litigation.
52. This part of the judgment is concerned with a question, which is in a sense central to its determination on the issue of recovery from the Third Party. That question is the weight, if any, which should be given to the fact, that for reasons which seemed good to the Claimants' representatives and the Defendants, they entered into the CHA as a means of evaluating and disposing economically with the claims to which, once a qualifying medical condition had been diagnosed, there is no answer in law. Consistent with the duty of the Court to deal with cases brought before it in ways which are just and proportionate (see part 1.1 CPR as above), it should do what it can to encourage parties only to litigate what cannot be reasonably disposed of by other means, whether those be by way of arbitration, mediation, administrative scheme or howsoever. I have been satisfied that the awards of compensation made under the provisions of the CHA are "somewhere around" the figure which would have been awarded as damages as if the case had proceeded at common law.
53. Apart from ruling upon the detailed criticisms of the CHA, the issue for decision is whether in principle, the Third Party are to be held bound by its provisions. In my judgment, there are a number of cogent reasons why the Third Party should be so bound despite the fact that it wa not a party to its creation. This occupational health litigation, by which I include the Griffiths case, is unparalleled in its complexity and scale. The numbers affected by the original judgment exceed, by a large margin, numbers involved in any previous group action. My decision is that it is within the power of the Court to impose a method of settlement (in a non statutory sense), which reduces to proportions which are manageable, both by the Court and the parties, the task of assessing the compensation to which the claimants have been held to be entitled, subject only to proof of the existence of a relevant physical condition, qualifying employment and, otherwise, as to amount.
54. But there are further reasons to be brought into consideration. Finality is also achieved, in that, subject to the disputes procedure, which has not yet been invoked, compensation awarded under the Agreement is not subject to any appeal.
55. In conclusion, there is an overriding public interest in limiting the scope for further litigation in all these cases. That is, litigation in relation to the challenged assessments in all the outstanding individual cases brought by or on behalf of Contractors' men, if the Court should not accede to the final submissions made by the Third Party.

The contractual issues

56. It was common ground between the parties that all the works performed by the Third Party were carried out pursuant to contracts made in one of two alternative standard forms of contract issued by the Defendants from time to time. There were two major editions of standard terms and conditions, namely those in 1963 and 1989 which were applicable to this litigation. For practical and present purposes the thrust of these two editions was similar, although the format was different.
57. It was common ground between the parties that all the works performed by the Third Party were carried out pursuant to contracts made in one of two alternative standard forms of contract issued by the Defendants from time to time.
58. Under either form of contract, an obligation was placed on the contractors to comply with the provisions of the Mines and Quarries Act 1954, as well as the Respirable Dust Regulations 1975 after they came into force, together with all other relevant legislation affecting health and welfare as it was from time to time. One of the questions to arise in these proceedings will be the extent to which the statutory obligations, under which British Coal operated, could also be applied to the Contractors while they were performing works pursuant to the contracts. In addition to the Terms and Conditions outlined above, there were of course special conditions and specifications which formed part of the documentation of all contracts. In all those contracts to which reference has been made during the present hearing, a dust suppression clause was always included. The form of such a clause varied from contact to contract but was, nevertheless, in broadly similar form. Included in the specifications were clauses which referred to the booklet F4040 (Approved Conditions for Airborne Dust) a publication which first appeared in 1969 in anticipation of the introduction to gravimetric sampling and the Production Instruction (PI) of the same year. What is surprising is that so late as 1992, British Coal was still referring to its booklet F4040 which had been produced in anticipation of the introduction of interim standards and the gravimetric sampler so long ago as 1969. PI [Production Instruction] 1969/5 is a document which was produced at about the same time as the booklet and specified the procedure for sampling with the gravimetric device. Neither the booklet, nor the PI made any provision which was directly applicable to Contractors. The booklet did, however, state ambiguously that it was the "aim of the National Coal Board to minimise dust and to attain Approved Dust Conditions in every working place". The concept of minimising dust and attainment of "Approved Conditions" were not identical and have, in my judgment therefore, to be construed as having cumulative effect.
59. The form of contractual wording, which has been discussed, was a direct reflection of the attitude of British Coal to dust levels generally throughout their mines. It is, however, both striking and unfortunate that seventeen years after the introduction of RDR, there was still to be found within the contractual documentation reference to F4040.
60. In addition to dust suppression clauses in the specifications, typically, there were also clauses which made provision for the supply, installation and maintenance of plant and equipment, other than ventilation equipment by contractors. Installation, maintenance, moving up ventilation equipment, shotfiring, methods of work and supervision which were, without exception, contractually the responsibility of the Third Party. The Third Party were undoubtedly correct when they submitted that it was the culture of British Coal to work to approved limits rather than to minimise dust, at all stages. The existence of this culture enabled the Third Party to advance submissions to the effect that they were not, by the contracts, required to 'minimise dust' but were merely required to work so that the concentration of dust did not exceed the "approved level" or "permitted amount". If there was any further obligation, it was to be found in the Manager's Scheme which ought to have been provided under RDR. It was said that all the contractor could be required to do in order to comply with the contract was "to co-operate with the manager in (his) efforts to ensure the requirements of the Regulations are fulfilled"; 3:130:8-14. It was submitted that the primary obligation on the Contractors was to observe those (approved or permitted) levels, in contradistinction to working so as to 'minimise' the giving off of dust. If and so long as they worked to those levels, that would not have involved any breach of contract on their part.
61. The existence of this culture also enabled the Third Party to advance submissions to the effect that they were not, by the contracts, required to 'minimise dust' but were merely required to work so that the concentration of dust did not exceed the "approved level" or "permitted amount". If there was a further obligation, it was to be found in the Manager's Scheme which ought to have been provided under RDR. It was said that all the contractor could be required to do in order to comply with the contract was "to co-operate with the manager in (his) efforts to ensure the requirements of the Regulations are fulfilled"; 3:130:8-14. It was submitted that the primary obligation on the Contractors was to observe those (approved or permitted) levels, in contradistinction to working so as to minimise the giving off of dust. If and so long as they worked to those levels, that would not have involved any breach of contract on their part. The Defendants were in no position to challenge, nor did they, the existence of such a culture. The Third Party argument did not effectively address the obligation placed upon them to "co-operate with the colliery manager" in ensuring compliance with the relevant statutory requirements. As has been seen already, the judgment in Griffiths, which was critical of British Coal, was accepted in its entirety, apart from one immaterial error of law. Importantly, it was accepted that the generic findings could and should be applied in this litigation.
62. Throughout much of the hearing, there was an issue how far contractors were free to devise and use their own methods of work. In the end, it became increasingly obvious that, in the vast majority of cases, the contractors were free to use their own methods, and I so find.
63. The contract would always require the Third Party to inform the Defendants of their intended method of work before commencing work under the contract by means of a 'Method Statement', which was an adjunct of all contracts. Such a statement would not only cover the machinery and methods of work, but also the sequencing of operations, which were the subject matter of the contract. The significance of these incidents of the contractual relationship is that, as the Defendants submitted, the Third Party was required to comply with and adopt methods of work which would ensure that they complied, as well as to co-operate with the colliery manager in complying, with all relevant statutory provisions.
64. The final contractual analysis is that, in a case where Contractors have not minimised dust, so that the Manager of the Mine is thereby put in breach of his statutory duty, the Third Party becomes under a contractual duty which is co-extensive and co-terminus with, the statutory duty of the Defendants. Apportionment
65. The Defendants recognised in their submissions that there were insuperable difficulties in the way of persuading the Court that they should succeed in obtaining complete contractual indemnities from the Third Party having regard to their own repeated breaches of contract, to which the Contractors had not contributed (namely: intake contamination ventilation deficiencies) – to minimise dust and to provide effective supervision by their deputies – in the light of the many findings of negligence and breaches of statutory duty made against them in Griffiths. In that respect the failings of the Contractors have to be taken into account and weighed against the Defendants' own many failings. On the facts, if they are so found, the Contractors had arguably not complied with the provisions of their contracts and that feature should bear upon apportionment since the parties had by those contracts allocated how responsibility between the parties should lie. As the Court was constrained to point out to Mr Evans, however, there is to be set against that consideration the many respects in which the Defendants had not only been found to have been negligent/in breach of statutory duty in Griffiths but, in simple terms, it was because of their own concurrent fault that the Third Party had, over many years, been able to carry on its work in ways which involved not only breaches of contract, which went unnoticed or uncorrected by the Defendants, while at the same time having committed significant breaches of their own statutory duties.
66. In conclusion, if and in the respects that the Third Party were negligent or their acts and omissions put the Defendants in breach of their statutory duty, I hold that they were persistently in breach of their contracts with the Defendants. Those breaches of contract involved the Defendants, in part, incurring liability to the Lead Claimants, in respect of which they are entitled to rely upon the indemnity clauses in their contracts and be indemnified "to the extent" of their proportionate shares of responsibility. The methodology of apportionment is separately treated hereafter.

Relationship of contractors to the culture of British Coal

67. A thread which ran throughout the Third Party case was that they were, not only, not obliged to comply with any relevant duty under the Act of 1954, insofar as it was directly enforceable against them, but that they were entitled to follow, with impunity, the culture of British Coal as it was to be found underground in mines owned and managed by them. Both as a matter of contract (see last Chapter) and with regard to the employers' duty towards his workforce, it was submitted that the Third Party was entitled to rely on the pervasive culture which existed within the Defendants' organisation, namely that, after RDR came into force, it was sufficient if there was compliance with the Manager's Scheme and the permitted amounts of respirable dust, or before RDR the previously "approved limits", were not exceeded. If both were achieved then there was no scope for adverse findings in respect of negligence or breach of contract.
68. The central question which needs to be highlighted, is whether the Third Party would, if sued by any of the individual claimants, have been held liable notwithstanding adherence to the 'culture', so called. For the reason that they claimed that they were entitled to rely on the Defendants to fulfil the statutory duty which fell upon them under section 74 of the Act, the Third Party contended that, in general, they ought not to be found liable to any of the Lead Claimants. There is one possible exception which is the case of Brown of which more later. The Third Party therefore has, necessarily, to contend that it had no reason to doubt that the Defendants were at all material times compliant with their statutory and common law duties
69. It is axiomatic, as well as accepted by the Third Party, that the duty owed by an employer to his workmen is non-delegable. The Third Party sought to circumvent, or modify, this rule by contending that insofar as they complied with the practice in the industry of which the Defendants, were not only the leading employer within the United Kingdom but, had also established a world-wide reputation as an innovative owner of coal mines and employer of men, they were acting reasonably towards their workmen and that the law required no more of them. In support of this submission the Third Party also relied on the existence of the extensive statutory scheme, the Act of 1954 together with all the subordinate legislation, which placed onerous duties on the Defendants which, if met, would have enabled the Third Party workmen to have been reasonably safe. This topic is more specifically considered in the next chapter.
70. Any attempt to rely on "custom and practice" or "culture" is inconsistent with the express contractual obligations so clearly defined in the standard forms of contract discussed in the last Chapter of this judgment.
71. There is evidence that Contractors were executing work for the Defendants, including their predecessors, as far back at least as the mid 1950's. It is scarcely to be contemplated, let alone accepted, that Contractors would come to an industry unaware of some of the important risks to which their workforce was likely to be exposed. If they were unaware of those risks they could not have been justified in the belief that there were none, of which they needed to inform themselves. Even if they were ignorant of the risks at the outset, a reading of the 1954 Act, if no more, would have provided a warning to a reasonably prudent employer coming into the industry that he should inform himself what sections 55 and 74 were intended to achieve and why there was a necessity for efficient ventilation and a need to minimise dust. Section 74 would itself, at the very least, have put him on enquiry why it was in the Act at all. His attention would have turned to the body set up to carry out inspections of the industry (HMI Mines and Quarries) and he would have come across the Annual Reports which are summarised in the original judgment; P pp 58 to 63. Any reasonable person reading those reports would readily have discovered the danger which respirable dust represents for workers underground and, more importantly, they would have learned that the Defendants' means of dealing with it had been consistently insufficient over many years.
72. There is the additional factor that the Third Party comprised contractors drawn from the civil engineering and construction fields. In order to carry out development work it would be necessary for them to be knowledgeably informed about risks which affected their industry in those fields, in terms of the health and safety of their workmen.
73. There were a number of publications available to provide material which a civil engineering contractor, as a reasonable employer, should have had access for the purposes of gaining information about the nature of risks affecting his workmen and of which he should have been, at least, aware. Paragraph 5.3.1 of the Code of Practice is of particular relevance.
74. Each member firm comprising the Third Party had extensive experience not only in the coal mining industry, but also in the civil engineering field. The provisions of the papers and codes are directly applicable and relevant to the types of operations on which the Third Party were engaged in British coal mines. Thus:

1. Cementation was established in 1919 and held itself out as having expertise in the mining industry. In 2000, Cementation was probably the largest mining contractor in the world. It had made contributions to scientific journals. It was accepted that it was well aware of the risks to its work force from inhalation of dust. For a number of years, it employed large numbers of workmen engaged in development work; up to 900 men in the Selby coal field alone and in 1991 over 1,100 men underground in British Coal mines.

2. Thyssen GB Ltd (Thyssern) first worked in British Coal mines in 1952. Held itself as skilled in all aspects of mining and civil engineering tunnelling machines. By 1991 it employed over 1,000 men underground in British Coal mines.

3. AMCO was in operation by the late 1960's. In addition to construction work in development contracts, it was the manufacturer of Dosco road heading machines and agent in the United Kingdom for Turmag drilling machines. In 1991, it employed almost 1,500 men underground in British Coal mines.

4. … All contractors engaged in development work for British Coal employed over 5,000 men underground in British Coal mines in 1989 and worked all but 3000,000 man shifts in that year.

75. The argument that it was reasonable for the Third Party to follow the practice of British Coal remained. It was submitted that there was no obligation on the Contractors to investigate the levels of dust to which their men were exposed. That was for two reasons: 1. the Defendants had the statutory responsibility to sample air in accordance with RDR and to analyse the results and 2. the Defendants expected the Third Party to work so as not to exceed the permitted amounts and they could be relied upon to notify the Third Party if those limits were exceeded. As has already been seen, this submission takes no account of the fact that it was publicly known, or should have been known to the Third Party, that as the annual reports of HMI, over a prolonged period, made plain British Coal was "not minimising dust". It was part of the Third Party submission that given the all embracing and prescriptive nature of the duties of the Colliery Manager and his deputies, there was no scope for independent action (query, thought) by the Third Party when working to the Manager's Scheme, as it should have been enforced by the deputies. The Third Party advanced the proposition that the systems employed by the Defendants so far as dust suppression and ventilation were concerned were relied upon by the Third Party and could be regarded as reasonable and, implicitly, would not involve the Contractors in breach of any duty of care towards their men.
76. The greatest stumbling block for the Third Party in seeking to rely on the culture, as described, as absolving them from liability towards their workforce was their inability to show that that practice had been followed without injury having been caused to their own workforce. The very circumstances which brought the parties before the court demonstrated that the practice was attended by systematic and prolonged "mishap". Furthermore, it was to be recognised that the failings of British Coal were to be seen against a statutory backdrop of a persistent failure to comply with the requirements of s74 of the Act.
77. Reference was also made to the paper by Bedford and Warner (1943), where quoted at pp18-19 in the Griffiths judgment, which demonstrated the dangers of men working in conditions in which they were exposed to unlimited quantities of respirable dust (less than 5().
78. Reference was also made to the Deputy's Handbook [V1/3 p186]. It should be noted that this document had been included by Thyssens in their disclosure and had therefore been available as a source of knowledge for many years. Because of the practice which will be later identified of not always drilling wet, it is worth quoting from this document at Chapter 10 at paragraph 21:

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

Mr Spencer quite properly drew attention to passages in the evidence of management witnesses employed by the Third Party who directly or indirectly acknowledged that the obligation falling on the Contractors was not just to meet approved levels or permitted amounts but, on the contrary was to minimise dust.

79. That the culture in the mines was, as the Third Party had submitted in argument, not seriously in doubt. That the Third Party went along with it in the main is also not capable of serious doubt, rather it was the case which they positively advanced as seeking to exculpate themselves from the forensic predicament in which I find that they were. Given that none of the constituent members of the Third Party were other than established and large scale employers of specialist workers in the tunnelling industry contracted to British Coal, there can be no question but that "reasonableness" and "prudence" demanded more of them than mere adherence to the "British Coal way". Those contractors never came close, by intention, to a fulfilment of their duty of care. "Prudence" and "reasonableness", those being the qualifications for the fulfilment of the employers' duty of care in a situation where the allegations of fault consist of omissions to take requisite steps to protect the workforce (see the cases of Paris, Morton, Morris and Thompson) were qualities notably absent from any of the proved matters in this case. There is no evidence that the Third Party ever sought or accessed the appropriate literature which was readily available to them, even if not within their own technical resources, within the industry of which they were constituent members. There was, on a daily basis, a wholly unjustified belief that British Coal was fulfilling its common law, or even its statutory duty, to minimise dust. The obligation assumed by contract to co-operate with British Coal in complying with its statutory duty under section 74 never triggered an interest in what compliance with that obligation might involve, even if, as to which ignorance could have been an excuse, they were not aware what this particular provision might require of British Coal, and which in turn should have affected the manner in which the Third Party performed its work under the contracts.
80. That the culture in the mines was, as the Third Party had submitted in argument, not seriously in doubt. That the Third Party went along with it in the main is also not capable of serious doubt, rather it was the case which they positively advanced as seeking to exculpate themselves from the forensic predicament in which I find that they were. Given that none of the constituent members of the Third Party were other than established and large scale employers of specialist workers in the tunnelling industry contracted to British Coal, there can be no question but that "reasonableness" and "prudence" demanded more of them than mere adherence to the "British Coal way". Those contractors never came close, by intention, to a fulfilment of their duty of care. "Prudence" and "reasonableness", those being the qualifications for the fulfilment of the employers' duty of care in a situation where the allegations of fault consist of omissions to take requisite steps to protect the workforce (see the cases of Paris, Morton, Morris and Thompson) were qualities notably absent from any of the proved matters in this case. There is no evidence that the Third Party ever sought or accessed the appropriate literature which was readily available to them, even if not within their own technical resources, within the industry of which they were constituent members. There was, on a daily basis, a wholly unjustified belief that British Coal was fulfilling its common law, or even its statutory duty, to minimise dust. The obligation assumed by contract to co-operate with British Coal in complying with its statutory duty under section 74 never triggered an interest in what compliance with that obligation might involve, even if, as to which ignorance could have been an excuse, they were not aware what this particular provision might require of British Coal, and which in turn should have affected the manner in which the Third Party performed its work under the contracts.
81. The factual as well as the legal basis upon which the Third Party has sought to argue that it should not be liable to its workforce by reliance on the "British Coal way" was unsound. In the end, despite the lengthy and attractively argued final submissions on the efficacy of the statutory regime which operates in a coal mine, I remain quite unconvinced that it can or did operate so as to exclude the liability at common law which the Contractors owed to their workmen. The finding made at the end of the preceding chapter is unaffected by considerations of the statutory regime. But this is not to say that when considerations of apportionment are taken into account, they will not be relevant to issues of causation and culpability; see next chapter on Tortious dust.

TORTIOUS DUST; ITS LEGAL CONSEQUENCES

Introduction

82. By way of preface to this section of the judgment, it is essential to note that the legal responsibilities of the parties and the respective causative effects of their individual failures must be allocated with some degree of precision to the activities of the parties which determined the conditions in the Contractors' places of work
83. Issues of culpability will also have to be determined. In the period of the employment of a claimant by British Coal, there is of course no problem, except how apportionment between that period and the period of employment by the Contractors should be effected. It is in regard to this latter period of employment by the Third Party where careful delineation of the responsibilities is necessary.
84. On the assumption that the Third Party was guilty of causative fault, that is fault which must also be held to impact on the Defendants. The explanation for this statement is that to the extent to which the Third Party did not attend to all the dust suppressive measures which it should have done, by virtue of their statutory duty under section 74, the RDR and through the deputies under Regulations 9(1) and 19(a) and (b) of the Managers and Officials Regulations, 1956, there will be a resultant liability imposed on British Coal. But this is not the only basis of liability which lies with British Coal since they would also have, what may be described as, their own "original liability" in respect of uncontested failures in regard to such matters as intake contamination, insufficient ventilation quantities and selection, for the purposes of contractual works, of the least optimal systems of auxiliary ventilation, and the like, and for which the Third Party had no direct responsibility. As will be seen, however, the position becomes less clear cut when the subject of respirators comes to be considered.
85. In Griffiths, the difficulties which existed in the way of arriving at the appropriate measure of the minimum exposure which should have been achieved and the measure of the actual exposure were discussed. The first of these difficulties was the inherent objective unreliability of eyewitness evidence because of the inevitable tendency to attribute blameworthiness to what is memorable, which in that case was visible dust clouds, and, secondly, to discount what may appear to be of less significance, namely relative sparsity of visible dust in the atmosphere. The dust with which both Griffiths and the present case are concerned is invisible to the naked eye. There is no means of telling that the one is more or less harmful than the other, although Dr Ford was of the opinion that this proposition did not necessarily hold good save with an exception; see D11/2. Dr Ford was also critical of the widespread use of forced ventilation. This form of ventilation, he considered only to be suitable in machine cut drivages where there was a high emission of methane – which would be in only a significant minority of cases.
86. An explanation for the reduction in the use of forcing ventilation was that the numbers of headings which were driven by bore and fire methods, where the use of this type of ventilation was the preferred method, although it was a long time coming, was finally reduced. An additional matter for consideration is the velocity of the air movement at the face of headings where ventilation was either exhaust or overlap. It was Dr Ford's evidence that for a period of up to 15 years it had been known that if the velocity air was maintained at about 0.5 m/s that would prevent dust back up "under all operational conditions". There was no technical reason why this problem could not have been dealt with during that period; there was an uncomfortable suggestion that the expense of providing the necessary equipment was the explanation.
87. While in the heading at such times, peak concentrations of dust, as well as fumes, would have existed. There was some good evidence that, particularly in South Wales, the deputy would permit the Third Party's men to return to the heading before the dust cloud had cleared, this would enable an early resumption of work. The evidence satisfies me that on a regular, and not occasional, basis (see paragraph 1 of V1) the Third Party exposed its workforce to excessive quantities of respirable dust, such that there should be findings of negligence made against them. To the like extent the Defendants would also be liable. So much must follow from the over used excuse, that they followed the practices of British Coal, which had been the subject of criticism in Griffiths; see discussion under Culture, above. There was no evidence that the Third Party gave independent thought to what, as reasonable employers, they should have done to protect their workforce. If it be the case, as was accepted by the Third Party management, that after RDR came into force, that they did no better than to attempt not to exceed "permitted amounts", by that admission, they failed to take reasonable steps to protect their workforce. In closing submissions, it was said that the contracts required no more of the Third Party than that. However, I am satisfied that that was not the true position under the contracts; see above.
88. In a number of respects, which are detailed in the present judgment, Contractors failed to perform their operations with due care and skill.
89. If it is accepted that in terms of negligence or breach of statutory duty Contractors' operations in headings were, in the main, neither better nor worse than those of British Coal there is a superficial case for an initial equal division of responsibility between them.
90. Blameworthiness has, therefore, also to be brought into account. A factor which must be given due weight is that it is the primary duty of an employer is to take reasonable steps to protect his employees from the risk of injury of which he knew or ought to have known. On the findings which I have already made, in respect of the protection of their workforce from the inhalation of excess dust, the Third Party took little or no positive interest but instead relied on the assumption that if British Coal, or HMI Mines and Quarries, did not draw attention to any shortcomings on their part, no more could reasonably be required of them. The long term failures by Contractors to consider independently the health of their workforce was as regrettable as were the manifold failings on the part of British Coal expressed in Griffiths. Failings on the part of Contractors in this respect are exemplified in the documents of Cementation D5/13 pp98, 99, /14 pp 100, 101, /15 p104.
91. Insofar as British Coal was concerned, they set themselves up not merely as model employers, but also as world leaders in dust suppression techniques; see Foreword to MRDE Dust Control Exhibition, June 1974: D2/16

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

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

92. When "apportionment" is used in the context of the present litigation, it must, of course, not only embrace the concept of "apportionment" in relation to the individual and the circumstances affecting his employment and health, but must also include apportionment between periods and exposures due to tort committed by British Coal alone and tort committed both by British Coal and the Third Party concurrently. There has also to be taken into account the inferences which can properly be drawn from the statistical tables which appear at paragraph 191 and 192 above. There is abundant evidence from which it can be inferred that on a consistent, rather than occasional, basis the Third Party failed to take reasonable steps to protect its workforce from excessive levels of dust. These considerations lead me to prefer a method which reflects the varying levels in the proportion of the total exposure which is tortious over time. Such figures would reflect actual dust conditions which varied over the course of time.
93. In my judgment, the fairest basis upon which to apportion between the Defendants and Third Party is to make use of the tortious levels for different years which are already available from the dust calculator print out (IRISC) Before arriving at figures which will take this factor properly into account, it is first necessary to allocate responsibility for levels of tortiousness within the headings. Given the figures for reasons for headings going into sanction (table paragraph [192] above) and the figures which can be derived from Dr Ford's later paper V1/4 and the various factors which have been discussed in this Chapter under Factors affecting allocation of culpability my judgment is that on a day to day basis it is just and equitable that British Coal should bear three fifths of the responsibility for matters such as intake contamination, ventilation quantities (including design) and water supplies. For operational conditions in the headings, the Contractors should bear the greatest share of the responsibility since they were the employer and they had by their contracts accepted responsibility as between themselves and British Coal, whatever they may have thought in practice. Nevertheless British Coal did also have an active part to play in supervising Contractors' operations in the headings which, on the evidence, they failed properly to exercise. In my judgment a just and equitable division of these responsibilities is 75 per cent on the Contractors' part with the balance to be allocated to British Coal. In the years of employment by the Third Party, then, the assessment of the Contractors' responsibility for tortious dust can be expressed as 30 per cent of the annual total tortious dust figure in the IRISC calculation sheets.
94. This distribution of the compensation awarded to the individual Claimant is intended as a generic finding.

Respirators

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

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

The judgment went on to consider how those principles should be applied in practice.

96. It is against the above background that the evidence and submissions in the present case fall to be considered. The case for the Defendants was straightforward. Mr Stevenson, the Third Party expert engineer accepted that in general, Contractors did not provide respirators for the use of its workforce. The position only changed, at a late stage in the history of the employment of Contractors by British Coal, because of stipulations introduced into the contracts made with the Contractors. It was also accepted by Mr Stevenson [E/2¶18.5] that there was no requirement, and little if any encouragement on the part of Contractors, that their men should make use of respirators when these were provided by British Coal. The evidence which was given by Third Party management on this issue was to the like effect and also, but importantly, they conceded that they did nothing to encourage their men to make use of the dust masks which were made available by British Coal.
97. The escape route plotted for the contractors on this issue was set out in the Third Party opening statement V1 p37 ¶107(f) where it was contended that it "had no capacity to act independently of the defendants in respect of … the provision, need and use of personal protective equipment". Further, it was contended that "the defendants assumed the de facto responsibility to provide respiratory protective equipment … and never looked to the Third Party to do so". This latter submission, although true insofar as the provision of such equipment was concerned, was of dubious legal status since it was not so much the provision of the equipment, which mattered, but the efforts made to persuade the workforce to make use of it, which was of importance. This contention was not pursued in evidence and may, therefore, be sensibly disregarded as a serious contribution to the debate on this topic. The Third Party also contended that unless or until it had reason to know that British Coal was failing in its duty, as found in the original judgment, there was no obligation on the contractors to provide, encourage or urge their workforce to use respirators. It must be said that there is some element of apparent confusion about the Third Party's position in relation to this issue, both in their opening and closing submissions. The reasons may not be far to seek, as the following references to the evidence will make plain. Mr Keeble (31:38:23) said that his company (Cementation) left it to the individual whether or not they should wear dust masks, they gave no instruction and left it entirely to the decision of the individual. Yet, Mr Keeble accepted that it was best practice to ensure that such masks should be worn, particularly at times when dust conditions were bad. It was plain, however surprisingly, that Mr Keeble had not appreciated (without the benefit of the Griffiths's judgment) that masks could reduce the dust when conditions were bad. He accepted that had he been aware of that he would have urged his men to make use of dust masks. Mr Homer, who had originally worked for ATC (supra) joined Cementation after the amalgamation of those two companies. He accepted that dust was potentially hazardous and took the, by now, familiar line that the company followed British Coal policy (24:101:17-21). In his statement, Mr Homer had said:

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

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

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

99. He later confirmed this evidence in the course of his cross-examination (32:156:1). Mr Luthe was unaware of any research into the efficiency of dust masks as a form of respiratory protection. On the other hand, he was cognisant of the fact that "dust was harmful and needed to be kept to a minimum''
100. Mr Bradley (AMCO) took a similar line so far as his company was concerned.
101. The Third Party's final position in relation to dust masks was one of agnosticism. They did not accept that the defendants had made a case that Contractors should be found guilty of negligence by reason of their failure to provide or exhort their men to make use of them, even if only at times of peak dust concentrations. If, however, the Defendants overcame that hurdle, they had then to prove in any of the lead cases the date from which such a finding should be made against the Third Party. The main plank of the Third Party case on this issue appears to have been based on their lack of knowledge, there being no basis, it was said, for finding that they should have known as much as, let alone, more than British Coal.
102. At no stage before the last year or so of the existence of British Coal as an operating entity, did the Third Party by exhortation take reasonable steps to encourage the use of respirators by their workforce. The case which had been advanced through cross-examination of the Third Party management witnesses, and accepted by them, was that no attempt had been made to persuade any of their men to make use of the dust masks which had been made available to them. I am quite unable to accept that the Defendants have not made their case that Contractors ought to have taken steps to instruct, urge or persuade their men to make use of the respiratory equipment which was available, or which the Contractors ought themselves to have provided from 1965 onwards.
103. It is no doubt the case that a wholly suitable respirator was not available until about 1975, but this is not to say that dust masks of some efficiency were not available to the industry some twenty years or so before then. The point is that British Coal did not itself engage in the manufacture of respiratory protective equipment, it turned to well known manufacturers of respiratory protective equipment for its supplies. There is no evidence that the Third Party ever approached manufacturers with a view to discovering what might have been available. In my judgment, there is no valid reason to select a date in respect of the Third Party's failure to provide respirators and urge their use, other than that from which British Coal were found to be liable, in Griffiths, namely 1965. It is of note that the Third Party stance in regard to "exhortation" in opening was to say that:

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

It is hard to construe this somewhat cautious or ambiguous statement as other than a guarded admission that a finding of liability was likely to be made on the basis upon which I have found that it does.

104. On the evidence, it was both sensible and practicable for dust masks to have been worn during those phases which would have been times of peak dust. This bears a similarity, in many respects, to the work in unmechanised or coal face work which consisted of large scale use of jigger picks and hand filling. There would also have been substantial periods when other manual work was being performed, as on the coal faces, which would have militated against the permanent wearing of dust masks by Third Party workers. I am quite unable to accept that the defendants have not made out a case that the Contractors ought to have taken steps to instruct, urge or persuade their men to make use of respiratory equipment which was available, or which they ought to have provided themselves, from 1965 onwards and beyond the CHA cut-off date.

Medical dispute

Nature of the issues

105. When the individual cases come to be considered it will be noted that Dr Stenton, the RS who examined, reported and gave evidence when called by the Third Party, without introducing his own qualification, was unable to agree with any of the MAP diagnoses, made in respect of the Lead Claimants. In every case in which he reported, his diagnosis or prognosis diminished the extent of the injury or disability of the individual claimant, when compared with the report prepared as part of the MAP. On occasion the qualification was slight, being a difference of opinion as to the percentage of respiratory disability. More commonly the disagreement was of a more fundamental character, as to the existence or absence of some relevant condition.
106. As a generality, I was much impressed by the diligence with which the RSs approached and completed their task. There were of course, some documents which were missed; some were misread; some entries were overlooked. But when regarded as an exercise in performing a detailed and technical process involving many hundreds of cases, I am satisfied that the manner in which they performed their task stands up well, not only to the scrutiny to which it was subjected in the course of this litigation, but also, as judged by the results of the statistical quality control to which the performance of all the RSs who were engaged in the operation of the MAP was from time to time subjected.
107. It is to be regretted that the same observation cannot be made of the contribution in these proceedings made by Dr Stenton. Quite properly, from the point of view of the Third Party, it was important that there should be an examination of the individual performance of the respiratory specialists who had reported on the individual live Lead Claimants and, in the case of the deceased Claimants, the documents which were available for consideration, and whose examinations might eventually lead to an award of compensation. Again, as a generality, Dr Stenton's approach was not as impartial as the Court has reason to expect. As a witness, he had a tendency to be didactic and to argue the case rather than to be content with reporting his findings and opinion. Some of his responses to cross-examination were lacking in credibility and came close to being overtly partial, notwithstanding his self-acknowledged duty to the Court. Moreover there were numerous instances of Dr Stenton being internally inconsistent in his approach to the evaluation of the evidence, not only in the same case, but also, as between one case and another. A particular weakness of Dr Stenton's approach to the individual cases was the manner in which he treated lung function test (LFT) results. It appeared to be common ground between all respiratory specialists, who commented upon them, other than Dr Stenton, that in addition to the actual numerical flow readings obtained in the testing process, there was also considerable value to be attached to the tracings of the flow volumes ("flow volume loops"). Dr Stenton could, or, would not accept that this was so. In turning his face away from consideration of the tracings, I am confident that Dr Stenton placed himself at an unnecessary disadvantage.
108. The relevance of the medical evidence in the case was to enable the court to determine whether the MAP had been faithfully executed in any given case, having regard to the information which was made available to the RS while carrying out the MAP. As is observed elsewhere, the challenge to the individual MAPs was to the validity of the results and opinions recorded on the MAP form in each case, which were later transferred to IRISC for the purposes of completion of the assessment process. With but one exception, as to which see in the individual claims, I have without hesitation preferred the MAP reports to any produced by Dr Stenton. The exception is the case of Mr Broad, where Dr Jarad missed references to evidence of some asthmatic disability in the massive quantity of records, which were only more or less legible. The omission is understandable, but, as will be seen, must be considered a factor which vitiates, his opinion and finding, to some limited extent.
Chapter 10 — SUMMARY OF CONCLUSIONS
109. A. The CHA was and is a fair and workable scheme for disposing of many thousands of cases by administrative means. It is consistent in its awards so that any one claimant can make a ready comparison of his award with another, which is of the same general character. It is also a scheme which limits the cost of making awards to a reasonable amount, it makes minimum demands on resources and meets the objectives set out in the CPR. The scheme is also subject to thorough and effective audit in respect of its multi-faceted operations. It is also subject to judicial control and review. There is scope for review of the operation of the scheme as and when it becomes apparent that it is failing to meet its objectives. Such amendments as are then proposed are subject to the approval of the Court.
110. B. The calculation of the awards under the CHA replicates common law principles of awards of damages, albeit that because of the incorporation of schemed elements in the assessment process it does not repeat with exactitude all the principles that have been laid down. There will be occasions when awards may exceed, in certain elements, what the common law would have allowed. There will be others when the awards will be below what the common law would have allowed. Across all awards, there is no reason to doubt that the total will be "somewhere around" what the common law would have given. Importantly, because of the administrative nature of the scheme, its cost of operation will be but a fraction of the cost of unitary actions, which the Courts would not have been able to handle in the numbers in which claims are being made.
111. C. Awards made under the CHA constitute "reasonable" settlements of the underlying claims. The Defendants are entitled to claim contribution from the Third Party on the basis of awards made under that scheme. Subject to any apparent operational errors by the assessors or RSs, it is not necessary for there to be any further investigation of a claim made by or on behalf of a miner or former miner who worked for the Contractors. It follows that the Defendants can safely continue to settle claims made under the CHA on the same basis as heretofore.
112. D. The CHA is legally binding on the Third Party.
113. E. The contracts under which the Third Party executed works for the Defendants all contained indemnity clauses which entitle the Defendants to indemnity "to the extent" that the Third Party's negligence or failure properly to execute the contract works caused the Defendants loss or expense. This is in addition to the right to claim contribution under section 1(1) of the Civil Liability (Contribution Act) 1954.
114. F. The Third Party was not justified in the performance of their works in relying on the Defendants to police the efficiency of their operations. That the deputies had a role in this, was never in doubt. That did not relieve the Third Party from its common law duty of care in any way. The Third Party had given no independent thought to the question whether or not British Coal complied with their obligations under statute and the Regulations which constrained a tight safety regime underground. There was ample published material which was available to the Third Party, as reasonably informed employers, to demonstrate that British Coal was failing to comply with its statutory obligations in regard to the necessity of minimising dust.
115. G. The Third Party was at fault in the same way as British Coal had been in its attitude to the wearing of respirators (dust masks).
116. H. The RSs who performed the medical examinations of the Lead Claimants, in the main, did so using their normal clinical care and skill. There were a few instances where a significant entry on a medical record was missed. There was nothing to suggest that these errors were systematic or indicative of a failure of the Medical Assessment Process.
117. I. The provisions in the CHA intended to deal with the treatment of non-respiratory co-morbid conditions, which did not influence the extent of respiratory disability, were implicit rather than explicit, as they now are. There was no evidence, however, that there was widespread failure by the claims assessors to note the existence of these conditions and act appropriately.
118. J. In the individual claims, there were found to be one or two errors, but these were of an insignificant character, which do not cast doubt on the general efficacy of the operation of the CHA. They can be corrected by the parties, or referred to the Court for a ruling if they are unable to reach agreement in regard to them.
119. K. Having regard to the statutory duties which affected British Coal's management of the mines and the extent to which they were capable of controlling the operations of their contractors, and the responsibilities of the Contractors for the health and safety of their own employees, liability for the respiratory damage caused to the Contractors men should be apportioned 70 per cent and 30 per cent respectively.