R.M. Peterson v The Crown (Criminal Appeal Case 40 of 1940) [1940] ZMHCNR 15 (31 December 1940)

[Vol. II R. M. PETERSON v. THE CROWN. Criminal Appeal Case N o. 40 o f 1940. Mining regulations—personal responsibility of manager—mere delegation does not relieve manager of responsibility. The facts and the law are fully set out in the judgment hereunder. The guiding principle is summarised by the Court in the last two paragraphs o f the judgment. The Mining Regulations referred to in the present case were made under the authority o f the Mining Ordinance which was repealed and replaced in 1958 by the present Mining Ordinance. In the Mining Regulations made under the new Ordinance, Regula­ tions 1005 (a) and (c) are substantially the same in wording as Regulations 10 (1) and (3) respectively o f the old regulations. Regu­ lations 1006 (a) and (b) are substantially the same in wording as regulation 10A. Regulation 312 o f the new regulations provides for the wearing o f safety chains. R obin son , J .: This appeal raises an interesting point which involves I will therefore set out the facts, which are not now all mine managers. disputed, for the better understanding o f the judgment. I am quoting from the judgment o f the learned Resident Magistrate at Kitwe from whose decision this appeal now is: “ The defendant in this case is the manager o f the Mufulira Mine and he is charged with a contravention o f Regulation 10 o f the Mining Regulations in that he failed to enforce the observance o f Regulation 59 (7) of the Regulations which provides that Africans working in places where falling would be likely to entail injury shall, wherever practicable, be provided with and wear safety chains and ropes which shall be maintained in good condition. The facts o f the case present no difficulty. On the 26th February last one Chama David, an African employee o f the Mufulira Mine, and another African were lashing, that is shovelling, loose rock from a bench that is a ledge o f rock, into a stope, that is a cavernous aperture o f considerable depth extending into the substance in a roughly vertical direction. Both men were wearing safety chains. In the course o f the morning the bench collapsed and both men fell. One o f them was subsequently found, alive, hanging by the chain with which he had been provided. The other, Chama David, was found dead a considerable way down the stope with a portion o f chain fastened round his waist. This portion o f chain was produced in evidence. I I have no hesitation in finding in fact that the chain produced was the one with which Chama David was provided and it is clear that th e place where he was working was one where falling was Vol. II] likely to entail injury. I have no hesitation, m oreover, in finding in fa ct that that chain had not been maintained in good condition. It follow s that the provisions o f Regulation 59 (7) have not been observed.” The learned Magistrate then went on as follow s: “ Having come to that conclusion I have to consider the question o f the personal liability in the m atter o f the present defendant who, as I have said, is the manager o f the Mufulira Mine, by Regulation 10 (1)— ‘ The manager o f every mine shall enforce the observ­ ance o f all provisions o f these regulations in the mine under his charge.’ and by Regulation 10 (3)— ‘ Any manager who fails to carry ou t any o f the pro­ visions o f these regulations shall be deemed guilty o f an offence against these regulations unless he can prove that all reasonable means o f enforcing the provisions o f these regulations and o f preventing such breach were taken by him.’ In this case, as I have already found, the provisions o f Regu­ lation 59 (7) were not observed. That, in any ordinary use o f the English language, is tantamount to saying that the observance of the provisions o f the regulation in question were n ot enforced by the defendant or by anybody else, and I so find in fa ct; and from that it clearly follows to m y mind that the present defendant is by virtue o f Regulation 10 (3) to be deemed guilty o f an offence in contravention o f Regulation 10 (1) unless he can discharge the onus which Regulation 10 (3) places upon him o f satisfying me that all reasonable means o f enforcing the provisions o f Regulation 59 (7) and o f preventing a breach o f these provisions were taken by him. I do not think I am doing any injustice to the very able and persuasive argument addressed to me by Mr. Ellis in saying that defendant’ s main effort (it was not o f course his only one) to dis­ charge the onus resting upon him was based on the provisions of Regulation 10A. By that regulation— ‘ (1) The manager may appoint one or more competent persons to assist him in the management o f the mine, and every such person shall have the same responsi­ bility under these regulations as the manager for such portion o f the mine as his letter o f appointment may specify . . . (2) The appointment o f any assistant manager under sub- regulation (1) hereof shall not relieve the manager of his personal liability under these regulations.’ [Vol. II Now, at all material times, the defendant had appointed a Mr. Pettijohn to assist him in the management o f the under­ ground department o f the mine and there is no question that Mr. Pettijohn was a competent person. The appointment was said to have been made under Regulation 10A (1) and although certain formalities were not observed I accepted it for the purposes o f this case that the appointment was properly made under the regulation. When that appointment was made Mr. Pettijohn was o f course ipso facto placed under the same responsibility as the defendant for inter alia the enforcement o f the provisions o f the regulations, but it is clear from the wording o f sub-regulation (2) that that imposition o f responsibility upon Mr. Pettijohn did not relieve the defendant o f his own personal liability under inter alia Regulation 10. I am prepared to go further and I do go further. On a reading o f Regulation 10 and Regulation 10A together I am satisfied, and I so hold, that it was the intention o f the legislature and that that intention is clearly expressed that the appointment o f a competent assistant manager under Regulation 10A should not o f itself constitute a compliance by the manager with the provisions o f Regulation 10. In my opinion the proper construction to be placed upon the two regulations is this. All reasonable means o f enforcing the regulations and o f preventing their breach must be taken, the onus o f proving that they have been taken being o f course on the If it is established that all such reasonable means defendant. have in fact been taken it is immaterial whether they have been taken by the manager or by the assistant manager and there is no offence. But if it is not established that such reasonable means have been in fact taken and there has been in fact a failure to observe the provisions of the regulations, as I have found there has been in this case, then the appointment o f an assistant manager cannot avail to relieve the manager of his personal criminal liability under Regulation 10.” He then comes to the conclusion, on the evidence that all reasonable means had not in fact been taken and convicted the appellant o f the offence charged. The grounds o f appeal are threefold: 1. The appellant was convicted o f contravening sub-regula­ tions (1) and (3) o f Regulation 10 o f the Mining Regulations, but the appellant could not be liable criminally under either or both o f such sub-regulations unless he personally committed some neglect or default and there was no evidence that the appellant did personally commit any neglect or default. 2. The appellant appointed a competent person under Regulation 10A of the Mining Regulations to be in charge o f the underground department o f the mine o f which the appellant was the manager and to assist the appellant by seeing to the enforce­ ment o f the Mining Regulations in the said underground depart­ ment and by such appointment the appellant discharged all his V ol. II] general obligations under sub-regulation (1) o f Regulation 10 of such regulations and consequently he could not be liable for any want o f observance o f the regulations in such underground depart­ m ent unless the same were caused by some personal neglect or default by himself as provided by sub-regulation (2) o f the said Regulation 10A. 3. The appellant appointed a com petent person to be in charge o f the said underground department o f the said mine and to see to the enforcement o f the Mining Regulations in that department, and by making such appointm ent, whether the same were made under the said Regulation 10A or otherwise than under that regulation, the appellant had taken all reasonable means of enforcing the provisions o f the regulations and preventing any breach o f them and thereby came within the meaning o f the saving clause to that effect in sub-regulation (3) o f the said Regu­ lation 10. In short, this Court is asked to decide whether the construction put upon Regulation 10 and 10A o f the Mining Regulations by the learned Resident Magistrate is the right one or not. It is not suggested that the appellant knew about these defective safety chains or personally committed or aided and abetted a breach of Regulation 59 (7). The only point to be decided is whether by reason o f a breach o f that regulation the appellant as a necessary consequence is punishable under Regulation 10 (1) and (3). Mr. Ellis, for the appellant, in a very interesting argument covered a wide field. He referred extensively to the English Coal Mining Acts, to wit, 23 and 24 Vict. C. 151 S. 22, 35 and 36 V ict. C. 76 S. 76, 50 and 51 Vict. C. 58 S. 50, and 1 and 2 Geo. V. C. 50 S. 75 and S. 102. He drew a distinction between 23 and 24 V ict. C. 151 and the other Acts, in that, in the first Act, the section creating liability was less wide than in the succeeding Acts. The wording in 23 and 24 Vict, is as follow s: “ S. 10. The following rules . . . shall be observed in every . . . coal mine . . . by the owner and agent thereof; S. 22. I f any coal m in e. . . be worked, and through the default o f the owner or agent thereof any o f such . . . rules . . . provision o f which ought to be observed b y the ow ner and principal agent. . . o f such . . . coal mine . . . be neglected or wilfully violated by any such owner or agent, such person shall be liable to a penalty o f not exceeding £20.” That is to say there must be personal default on the part o f the owner or agent. In the later Acts the wording is altered and is as follow s: “ Every person who contravenes or does not com ply with any o f the general rules in this A ct shall be guilty o f an offence; and in the event o f any contravention o f or non-com plianc e with any [Vol. II o f the said general rules . . .b y any person whomsoever the owner, agent and manager shall each be guilty o f an offence . . . unless he proves that he had taken all reasonable means, by publishing and to the best o f his power enforcing the said rules . . . to prevent such contravention or non-compliance." In other words, liability is complete as soon as a breach is committed by anybody unless it can be proved that all reasonable means had been taken to enforce the rules. Mr. Ellis then said that under the Northern Rhodesia Law it is the duty o f the manager to enforce the observance of the regulations and he shall be deemed guilty o f an offence if he fails to carry out any o f the provisions unless he can prove that all reasonable means o f enforcing the provisions and preventing the breach were taken by him. Mr. Ellis argued that under our law the manager is not made a guarantor o f the good behaviour o f “ any person whomsoever ” and therefore English cases decided under the later Acts containing that phrase are inapplicable. Pausing there, I would observe that it is the duty of this Court to construe the wording o f the regulations enacted in Northern Rhodesia. The regulations in this country do not appear to follow exactly any precedent. The “ all reasonable means ” clause seems to have been taken from the later English Acts (and the S. A. Act also talks o f “ all reasonable measures ” ) but our Regulation 10A (vide supra) appears to have been adopted from the regulations made under the Union o f South African law, i.e., the Mines and Works Act, 1911, Regulation 157 (2) (a) reading as follow s: “ The manager may appoint one or more persons who shall be holders o f a Mine Manager’s certificate to assist him in the manage­ ment, such as an assistant, sectional, or underground manager, and such person shall have the same responsibility under these regulations as the manager for such portion o f the mine or works as his letter o f appointment shall specify, but the appointment o f such person shall not be taken to relieve the manager o f his per­ sonal responsibility under these regulations.” As the wording is so similar I thought it wise, in order to save, if possible, further litigation, to inquire from Southern Rhodesia whether there are any reported cases from the Union o f South Africa on the con­ struction put upon the words “ shall not be taken to relieve the manager o f his personal responsibility ” . Through the courtesy o f HUDSON, J. m y attention has been drawn to the following cases: Davidson v. Bex 1910 T. P. D. 1236. Rex v. Bennett 1916 T. P. D. 355. Rex v. Waller 1934 T. P. D. 265. A further opportunity was given to learned Counsel to argue on these cases. I will deal with them later. Mr. Ellis urged that under the Northern Rhodesia regulations a manager, if he had made a proper appointment under Regulation 10A (1), cannot be made criminally responsible unless he is personally guilty o f V ol. II] such infringem ents, or is so much involved that he can be said to have aided and abetted them. His contention is that the true meaning of R egulation 10A (2) is that if a manager makes a proper appointment and in spite o f that actively interferes then only he is not relieved of his personal liability. He cited the English case o f Dickenson v. Fletcher (1873) 9 C. P. 1 in support o f his argument. That case was decided under 23 and 24 V ict. Cap. 151, which it will be remembered, implies that there must be personal default on the part o f the owner and agent. A com­ petent person was appointed to see that all safety lamps should be examined and locked before being given out. There was a default but as it was not a personal default on the part o f the owner, he was found n ot to have committed an offence. In m y view that case is not o f any help in construing the Northern Rhodesia regulations in which the wording is far wider. To reconcile his arguments on the English law and English cases, Mr. Ellis submitted that an “ agent ” in the English Acts is the equivalent o f a " manager ” in Northern Rhodesia, I cannot agree. “ Manager ’’ is defined in our regulations as “ the person appointed to be manager o f a mine under regulation 8 ( 1 ) . . . ” and Regulation 8 (1) says “ the owner o f every mine shall appoint a manager whose duty it shall be to control and supervise such mine . . . ” As D arling, J. said in the case o f Stokes v. M itchison (1902) 1 K. B. 857 an agent " may be agent for a very large extent o f property. He appoints a manager and an under-manager. W hy ? to see after the very things to which it is not reasonable to suppose that he can be giving his own constant personal attention.” The Court held in that case, decided under 50 and 51 Vict. Cap. 58, that the agent was not criminally liable for a mere casual piece o f negligence on the part o f the manager for the contravention o f a general rule, and, in the circum stances o f that case, the agent had taken “ all reasonable means ” b y the appointm ent o f a manager. I cannot see that a manager under our regulations is at all equivalent to an agent in England who m ay be agent for several mines and not be resident at any. Other English cases cited were, inter alia: Wynne v. Forrester (1879) 5 C. P. 361. Baker v. Garter (1877) 3 Ex. 132. Howells v. Wynne (1863) 143 Eng. Reports 682. Brough v. Homfray (1868) L . R . 3 Q. B. 771. Atkinson v. Morgan (1915) 3 K . B . 23. None o f which are decisive on the points before the Court. The South African cases are helpful but they do not throw any direct light, except by implication, on the bearing o f the words o f our Regula­ tion 10A (2). In Davidson v. Bex it was held on appeal that a mine manager who appointed shift bosses and gangers with instructions to see that the regulations were carried out, but who never went below when work was commenced, did not discharge the onus o f proving that he had taken [Vol. II reasonable measures for enforcing the regulations and was rightly con­ victed for contravening Regulation 145 (which requires the mine manager to provide for the safety and proper discipline of the workman and “ unless he proves that he has taken all reasonable measures by enforcing to the best o f his ability these rules, he is guilty o f an offence against these regulations ” ). D e V il l ie r s , J. P. said in the course o f his judgment, “ It is true that the appellant appointed shift bosses and other persons to take his place, because naturally he cannot be everywhere. But by having done that he has not by any means discharged his duties. His position is undoubtedly one o f great responsibility. The latter portion o f Regula­ tion 145, as I read it, was expressly inserted to show a manager that he does not, by appointing shift bosses and other men necessary, discharge the onus which is upon him. A mine manager has very grave responsi­ bility and it is not for this Court to say what a manager should do to enforce the observance of the rules, because that would depend upon the particular circumstances o f each case.” The case o f Rex v. Bennett was a case in which the appellant was the overseer; the manager, who had been jointly charged, having been acquitted by the Magistrate, Regulation 160 provides that a mine manager may appoint a mine overseer to assist him in the control, management and direction o f the underground work o f a mine, and Regulation 61 provides that no person shall be permitted to remain in any place in a mine if the air contains dust, smoke or fumes. When workmen had been allowed to remain in a place where air for a consider­ able period during the course o f one and a half months had contained dust and smoke, it was held that the mine overseer had been rightly convicted o f a contravention o f Regulation 61, even though he had no actual knowledge as to the presence o f the dust and smoke. W e s s e ls, J. in the course o f his judgment said, “ It is contended that the overseer should not be held responsible for the state o f affairs because he was ignorant; that the words in Regulation 61: No person shall be permitted to re­ main etc., mean that if any person knowingly permits people to work in the dust and fumes he is to be held liable, but, if he does not know o f the circumstances, then he cannot be held responsible. I take it that argu­ ment would be subversive o f the whole object of the legislature in allowing these regulations to be framed, because the object o f the A ct is to prevent injury to workmen. . . . It would be subversive o f the intention o f the regulations if a person could say he had been attending to other matters, had left the dust and smoke to a subordinate, and that it did not concern him, until it was reported to him by one of his subordinates.” A t the end o f his judgment, he goes on “ The overseer cannot make it his excuse that the engineer's department is a different one to his own. As with the manager, so with the overseer; it is his duty to know everything that goes on and every transaction o f the law that takes place in the mine, and he must take such steps as will ensure that he is made acquainted with everything that goes on. The manager has been excused by the Magistrate; in my opinion on insufficient grounds. He appears to me to have been just as guilty as the overseer.” Mr. Ellis submitted that the proposition as put above is too sweeping and it was winnowed down in other parts o f the judgment showing it had special reference to Regulation 61. v Vol. II] T h e last case is R ex v. Waller decided in 1934. Regulation 8 (1) reads: “ Every entrance to every vertical or steeply inclined shaft . ... . ” or other dangerous place shall be kept properly fenced off In term s o f Regulation 156 (1), it is one o f the duties o f a mine manager "to take all -reasonable measures to enforce the requirements o f these regulations and to ensure that they are observed by every person em­ ployed on the mine or works. The appellant, an underground manager o f a gold mine, was con­ victed o f a contravention o f Regulation 8 (1) by a Magistrate. The evidence was to the effect that an opening underground was not properly fenced o ff and an employee fell through and was killed. The appellant had never personally inspected this opening, but had relied upon the reports o f subordinate officials to the effect that everything in the mine was in order. It was held that the appellant was n ot entitled to delegate responsibility for ensuring the enforcem ent o f the regulations to sub­ ordinates, and that he had not carried ou t his duties under the regulations by relying merely on the reports o f other officials w ithout personally satisfying himself that the regulations were being observed, and that he had therefore been rightly convicted. It is true, as Mr. Ellis pointed out, that the appellant in that case was an underground manager and there was no official delegation under South African Regulation 157 (2) (a), but, nevertheless, I think he was the scheduled person appointed to be responsible for the control, manage­ ment and direction o f a portion o f a mine, which is the definition of “ manager ” in the South African Regulations. However, I think the case is useful as showing that the reasonableness o f the measures taken must depend on the circumstances in each case. Reference was also made to M ills v. R ex (1907)— a South African case to he found in Vol. 34 English and Em pire D igest, p. 748, footnote “ g I I can now get back to the facts o f this particular case and construe the Northern Rhodesia regulations in the light o f the foregoing. The only law and the only regulations I am concerned w ith are those o f this Terri­ tory, but I am satisfied that no hard and fast rule has been laid down elsewhere. The Courts, as is proper, have always preserved to themselves the right to construe, in the light o f the circum stances o f each case, whether the means taken to enforce the provisions o f the regulations have been reasonable or not. It is not disputed that a manager o f a mine in Northern Rhodesia has very, many and varied duties to perform and grave It is clearly im possible for him to go round and responsibilities to carry. It is obvious he inspect all the workings and the workshops very often. must delegate. A manager o f a mine in England, South Africa or Nor­ thern Rhodesia cannot give constant personal supervision to see whether each and every regulation is being enforced, and yet, in each country, the manager is made criminally responsible for any transgression unless he can prove that he has taken all reasonable means so to enforce them. It seems c lear to me that it has been the deliberate intention o f the legislature when framing laws to control mines, where slackness may so v [Vol. II easily lead to disaster, to fix the responsibility at the top (see Hannaford v. M ay (1935) 1 K. B., at p. 395) and a manager can only evade that responsibility by proving “ all reasonable means ” . I cannot agree with Mr. Ellis’ argument that the true meaning o f our Regulation 10A (2) " the appointment of any person under sub-regulation (1) hereof shall not relieve the manager of his personal responsibility under these regulations ” is that the manager will only still be liable if he interferes personally after making an appointment. In my opinion the only object o f regulation 10A (2) is to make 10A (1) perfectly clear, if it was not perfectly clear already. 10A (1) makes the manager and persons he may appoint equally responsible, instead of the manager being respon­ sible alone. 10A (1), taken by itself, could not possibly be construed as substituting the appointed persons for the manager or as taking away the manager’s personal liability, but, perhaps for the better understanding o f laymen interested, such as mine employees, the point was laboured both in the South African regulations and in those o f Northern Rhodesia by adding the latter part o f regulation 157 (2) (a) and 160 (3) in the South African rules and 10A (2) in ours. It follows therefore in my opinion that, under the law as it stands, a manager can be held criminally liable if he fails to. carry out any o f the provisions o f the regulations even though there is no personal neglect or default, nor c an he save himself by making an appointment under Regulation 10A (1 ) p e r se. That disposes o f the first two grounds o f appeal. The third one is to my mind the most cogent. It is to the effect that by making an appointment under Regulation 10A (1), the appellant had taken all reasonable means o f enforcing the provisions o f the regulations and preventing a breach. The learned Magistrate dealt with this part o f the case as follow s: “ In m y opinion the proper construction to be placed upon the two regulations (Regulation 10 and 10A) is this. All reasonable means o f enforcing the regulations; and o f preventing their breach must be taken, the onus o f proving that they have been taken being o f course on the defendant. I f it is established that all such reasonable means have in fact been taken it is immaterial whether they have been taken by the manager or by the assistant manager and there is no, offence. But if it is not established that such reasonable means have been in fact taken and there has been in fact a failure to observe the provisions o f the regulations, as I have found there has been in this case, then the appointment o f an assistant manager cannot avail to relieve the manager o f his personal criminal liability under Regulation 10.” I I think that is putting it too high. It is making an absolute rule without regard to the facts o f each particular case. The Court has to apply itself to the question whether, under all the circumstances, the manager has taken all reasonable means o f preventing the breach and I Vol. II] can im agine cases in which there may have been some isolated and casual contravention and the Court would say that a delegation under 10A would b e sufficient to exonerate the manager. In other cases, where a system or organisation is involved, it would not, because it is the duty o f the manager to control and supervise the mine and he cannot evade responsi­ b ility b y delegation. In such cases ignorance can be no excuse and if he does n ot know what is going on, he ought to. I must therefore look at the evidence in this case to see what the system was to maintain these safety chains in good condition. There was no system except for the shift boss to run the chain through his hands and look at it underground. B ust was n ot cleaned off. They were never sent to the surface nor were they oiled. This particular chain, with no great exertion, was broken b y a witness in Court. An inspector o f mines gave evidence that at Nkana and M indola safety chains are brought to the surface daily and returned to the store. During the time the chain is in the store it is washed in paraffin and hung up on a rack to dry. When clean they are examined. A t Luanshya chains are brought to the surface periodically for examination and underground, boys go round examining the chains and cleaning and oiling them as a full time job. The system at Mufulira was com pletely inadequate to maintain the chains in good condition, with the result that they were n ot so maintained. There was a wholesale disregard o f Regulation 59 (7), because i f I take into consideration the appellant’s own evidence that he was chairman of the monthly safety meetings, it only makes m atters worse, and the only means which the appellant took to enforce that regulation was to delegate his duties. It is not reasonable. The appeal must be dismissed. In my opinion, bearing in m ind the local conditions in Northern Rhodesia the rough guide should be this. The manager o f a mine is personally responsible for the planning and working o f . methods and arrangements for enforcing the observance o f all provisions o f the regu­ lations. He cannot delegate that responsibility. I f a breach occurs and it is due to a fault in the system, then he is liable—if the system is sound but a breach occurs owing to lack o f personal attention (but without personal default), then, i f he has appointed com­ petent persons under Regulation 10A (1), whose du ty it is to give such personal attention, I think the Court w ould probably say that he had taken all reasonable means under Regulation 10 (3) and he would be exoused.