Sie sind auf Seite 1von 89

Eckersley & Others v.

Binnie & Others


Court of Appeal (Civ Div)
Fox, Bingham and Russell L.JJ.
RUSSELL L.J.:
17-04 In the Spring of 1984 local residents in the area of a waterworks system
whereby water was pumped from the River Lune to the River Wyre in Lancashire were
concerned that flooding might result from these operations. In order to allay their fears,
the North West Water Authority, responsible for the operation of the system, invited a
party of residents to inspect it. The system involved the transfer of water from the River
Lune through a pipe and tunnel extending over a distance of about 12 kilometres to the
River Wyre at Abbeystead.
The party assembled in the underground valve house of the system at Abbeystead.
On May 23, 1984, owing to conditions of drought, water had not been pumped through
the link for something like 16 days. The level of the water in the tunnel dropped, and a
void had formed above it. When the pumps were operated in the presence of the party,
the surge of water drove the atmosphere ahead of it until it was discharged through
valves in the vent chamber into the valve house. Unknown to anyone, this atmosphere
contained an explosive concentration of methane, representing somewhere between 5
per cent and 15 per cent of the atmosphere. When this gaseous mixture was vented into
the valve house, someone probably struck a match or smoked a cigarette. There was a
massive explosion. The valve house was devasted, the roof being blown off, and 16 of
the party were killed. Many others were injured.
The victims, or their representatives, instituted proceedings against three defendants.
The first defendants, Binnie & Partners, were the consulting civil engineers responsible
for the design and supervision of the construction of the project. The second defendants,
Edmund Nuttall Limited, were the contractors who constructed the link, including the
tunnel. The third defendants had operated the system after it had been commissioned in
June 1979, nearly five years prior to the disaster.
It was contended against each of the defendants that they owed duties of care to the
plaintiffs, and that they had each been guilty of negligence which was causative of the
explosion. As against the first defendants, it was said that they should have anticipated
the presence of methane in the tunnel from the outset, and that during construction they
should have supervised the testing for methane *351 more efficiently than they did. Had
they done so, it was contended, the presence of methane in significant amounts during
construction would have been detected and this would have necessitated redesigning the
venting system of the link so that an explosive mixture was not discharged into the valve
house at any stage. As against the second defendants, it was said that they had failed
properly to test for methane during the construction of the tunnel and that, in
consequence of that failure, methane continued to permeate into the tunnel in gaseous
form and dissoved in ground water, thereby creating the dangerous conditions which
prevailed at the time of the accident. As to the third defendants, the submission was that
they, too, should have foreseen the presence of a dangerous atmosphere in the tunnel,

and that they were negligent in failing to test before recommencing the pumping on May
23, 1984, with the consequences to which I have already referred.
The defendants all denied liability. The first and second defendants denied that they
owed any duty of care to the plaintiffs, their responsibilities having come to an end on
December 15, 1980, pursuant to the terms of their contracts. Further, these defendants
each contended that the presence of methane in the tunnel was not reasonably
foreseeable. The first defendants led expert evidence to the effect that the methane
responsible for the explosion in 1984 was coming from a reservoir of methane some
1,000 metres below the tunnel which had been disturbed by the tunnelling operations.
The released methane had travelled up to the tunnel during the ensuing five years--a
phenomenon that could not have been foreseen. The first and second defendants denied
that methane had been permeating into the tunnel during construction but if it had, such
methane would have been simply stress relief methane from small pockets of the gas to
be encountered as the tunnel progressed. Such methane would have been dissipated long
before the disaster. Finally, the first and second defendants argued that the explosion was
too remote a consequence of any negligence of which they were guilty. The third
defendants had caused or permitted a void to be created when the system was designed
to be full of water at all times, save when, for a very limited period, it might be drained
as a result of some accidental malfunction or for the purposes of maintenance. The third
defendants had, unknown to either the first or second defendants, persistently left a
washout valve partially open thereby contributing to the void. For their part, the third
defendants, as occupiers of the system, accepted that they owed duties of care to the
plaintiffs, but they submitted that they had no cause to suspect the presence of methane
and that they relied upon the expertise of the independent contractors in the design and
construction of the link.
17-05 Such, in the barest possible outline, were the primary issues that had to be
tried by Rose J. sitting at Lancaster, in February and March 1987. He was not asked to
deal with damages. The hearing ranged over a very wide field of factual and expert
evidence, together with legal submissions made on behalf of all parties. The hearing
occupied the Court for over six weeks; a total of 49 witnesses were called, 11 of them
being experts, and there were many conflicts of fact and opinion to be resolved. In a
reserved judgment delivered on March 13 1987, which ran to some 84 pages of
transcript, the learned Judge indicated that, in his judgment, he would necessarily have
to be selective in his references to *352 the evidence and arguments, and that anything
but a summary of parts of the case would render the judgment inordinately long. In my
view that is a feature of the judgment which must be borne constantly in mind when it is
reviewed in this Court. It should also be remembered that the Judge, over a period of six
weeks, had the inestimable advantage of seeing and hearing the witnesses, both as to fact
and as to expert opinion, but more of that later. In the event, the Judge found in favour of
the plaintiffs against all three defendants, and apportioned liability as to 55 per cent in
respect of the first defendants, 15 per cent in respect of the second defendants, and 30
per cent in respect of the third defendants. All three defendants appeal.
I must now deal with the facts in more detail, and in so doing I shall gratefully adopt,
verbatim, some passages from the judgment.
In the late 1960's, the third defendants' predecessors wanted to be able to transfer
water from the lower reaches of the Lune to the upper reaches of the smaller Wyre. By

this means they could supplement the amount of water available to be taken by the
existing extracting facilities on the lower Wyre near Garstang. Such a scheme, while
avoiding the need to build new, and possibly unsightly, surface reservoirs, would
increase the flexibility of water supplies in the area.
Both rivers are very clean and support a variety of fish including, particularly in the
case of the Lune, salmon. They are in an area of outstanding natural beauty to which the
public has access in several places, including Abbeystead. Damage to fish, to the rivers,
to the landscape and to the general environment, visually or by noise, had to be avoided
or kept to a minimum. The risk of sabotage had to be taken into account. Air valves had
to be protected against freezing and blockage.
In January 1970 the first defendants, a firm of civil engineers of international repute,
were instructed by the Water Authority to prepare a written report upon the project. This
was done, and there was a site investigation. Authority for the scheme was granted by
Parliament at the beginning of 1973. It permitted the Water Authority to extract up to
280 megalitres a day from the Lune, provided that the flow of the river over the weir
near Skirton was at least 365 megalitres a day. On February 1, 1974 a contract between
the Water Authority and the first defendants was signed. I shall have to return to the
terms of that contract later. The work was put out to tender, the tender of the second
defendants was accepted on October 7, 1975, and a contract with the second defendants
for the construction of the link was signed. As implemented, the cost was 27,500,000,
7,500,000 of which was attributable to the tunnel.
The first defendants' design, starting from the Lune-end of the link, involved, first, a
screening process for debris and fish with water thereafter flowing under gravity to a
pumping station. There water was lifted by the low-lift pumps, first to settling tanks and
an adjacent balancing tank, which provided a constant head of water for pumping. A
second set of high-lift pumps then pushed the water at low pressure, 5.4 kilometres
through the pipeline and 6.6 kilometres through the tunnel.
17-06 The tunnel has an internal diameter of 2.6 metres. Apart from lengths of about
400 metres at the Rowton end and 600 metres at the Abbeystead end, which *353 are
lined with steel to withstand the pressure of the pumping where there is comparatively
slight ground cover, the tunnel is lined with concrete. It is not water-tight because the
concrete is porous and jointed. Depending on the relative pressure inside and outside the
tunnel at a particular point, water and gas can pass into and out of the tunnel. Pressure
outside varies according to the level of the water table or tables; pressure inside varies
according to the extent to which the tunnel is filled with water, air or both, and according
to whether pumping is taking place. Water seepage of this kind is small when expressed
as a proportion of all the water in the tunnel, but it occurs at about 12 litres a second
when the tunnel is empty and 8 litres a second when the tunnel is full. That is of the
order of one million litres per day. The high-lift pumps not only transfer the water south;
they also lift it to points at Abbeystead which are over a hundred metres above the Lune.
The higher, western branch, permits access to the tunnel through a hatch near its
blanked-off end. It also contains the vent chamber where there are eight air valves at the
summit of the system. These permit the escape of air, and small amounts of water,
during filling and intermittently, during pumping. They also permit the entry of air
during emptying. The eastern discharge branch passes beneath the valve-house floor
where there is provision for the water to follow one of two routes. First, as and when

future development takes place, water will be able to continue along the discharge
branch, dipping beneath the Wyre and rising onto the south bank, where at present there
is a blanked-off end, with a circulation pipe back to the weirs in the valve-house
intended to aerate that dead end. Secondly, there is the only through route presently in
use; this involves a break pressure system beneath the valve-house floor. The water from
the discharge branch passes through two lobster backs into two discharge chambers
whence, via weirs, it flows into four distribution chambers, from each of which an
outfall pipe takes it to the Wyre.
There is a third lobster back normally kept closed on an emergency line to an
adjacent field. The valve-house is divided into a wet room, above the discharge and
distribution chambers, and an adjacent dry room. The floor of both is of open metal
grills.
At the time of the explosion, ventilation from and to the vent chamber was by an 800
millimetre diameter, permanently open duct, which terminated at floor level in the wet
room of the valve-house. Consequently, as there is an air valve on top of each of the
three lobster backs, a total of 11 air valves could discharge into and draw air from the
valve-house.
The ventilation of the valve-house at the time of the accident was two louvred panels
in the dry room, and a larger louvred panel in the wet room, together with two other
smaller louvred openings. The wet and dry rooms were separated by solid doors though
only the wet room louvred panel could provide relevant ventilation during normal
operations. Water is discharged into the Wyre through a line of ports in an outfall
chamber on each bank, designed to minimise disturbance of the fish. For present
purposes only the north bank chamber is relevant. The five ports at its western end are
fed by wash-out valve number six, one of a number of washout valves which can be
opened during filling of the system and which enables the systems to be purged. So
much for the system designed by the first defendants.
17-07 *354 It was readily acknowledged by them that the system of venting the
atmosphere through the valve-house was inappropriate if methane in any significant
quantities was to find its way into the tunnel. In the event, this is what undoubtedly
occurred but, as earlier indicated, the case for the first defendants was that the ingress
was unforeseeable and no significant quantities had been detected during construction.
Tunnelling began on January 27, 1976 from the Rowton end, and on March 29, 1976
from the Abbeystead end of the link. Breakthrough was achieved on November 4, 1977.
The concrete lining of the tunnel took place between December 1977 and July 1978.
Completion of the tunnel was certified on March 11, 1979. The tunnel was filled with
water from the Lune, and the first discharge into the Wyre of water pumped from the
Lune took place on or about June 23, 1979. In September 1979 the tunnel was drained
for inspection and maintenance. Thereafter it was refilled, but pumping did not remain a
continuous process because, in times of drought as earlier indicated, restrictions were
imposed relating to the preservation of a particular level of water in the Lune.
Finally, as to the operation of the system, it was common ground that sometime prior
to the disaster, the third defendants by their employee, a Mr Chippendale, had left
partially open washout valve number six at the Abbeystead end of the link. Other
employees of the third defendants, from early 1981, had cracked open this valve about
one and a half to two turns in order to keep the water in the dead end of the discharge

branch sweet, and to eliminate build-up of silt which would otherwise pollute the Wyre
if it were discharged into that river. The effect of this practice, when pumping was not
taking place, was to create a void in both branches of the tunnel at the Abbeystead end
and, to a limited extent, in the main tunnel for a short distance going back towards
Rowton. As a result of a subsequent reconstruction of the disaster, it was estimated that
the void thus created would be of the order of 1,500 cubic metres. This particular
phenomenon was accentuated in times of drought because the water table levels would
fall, reducing external pressure and hence the inflow of water into the tunnel. There had
been periods of drought between 1980 and 1984, and it seems, judging by tide-marks
which were noticed in the tunnel, there had been voids at dates earlier than May 1984.
I turn now to the two contracts to which earlier reference has been made. The
Agreement between the first and third defendants, dated February 1, 1974, imposed
duties upon the first defendants in their capacity as consulting engineers. In particular,
the first defendants were solely responsible for design. Further, they were responsible for
"the technical control of the construction of the works" including "issuing instructions to
contractors and making such site visits as the consulting engineers think necessary".
17-08 Clause 9 of the Agreement, headed "Superivision on Site" provided:
"The Consulting Engineers shall, subject to the approval of the client which shall not be
unreasonably withheld, appoint such resident site staff as the Consulting Engineers
consider necessary for the efficient supervision of work on site".
*355 Material provisions in the second defendants' contract read as follows:
"2.8.101 Tunnel construction shall continue by day and by night.
2.8.102 The contractor shall provide to the satisfaction of the Engineer, fans and ducting
to remove quickly dust and fumes from any cause and to provide sufficient fresh air for
the health and comfort of persons working in tunnels ... The concentration of
inflammable contaminants shall not exceed 10% of the lower explosive limit (minimum
explosive concentration) ... The contractor shall provide, maintain and use as directed by
the Engineers an instrument of pattern approved by the Engineer to measure the velocity
of air, and a Draeger gas detector model 19/31 (manufactured by Mormalair Limited
Manchester) or other approved gas detector and shall provide and maintain one of each
of the instruments for the use of the Engineer. Maintenance of the gas detectors shall
include the supply of all detector tubes."
Arising out of these provisions a number of documents came to light upon discovery
during the course of the proceedings. Mention at this stage may be made of two. On
March 24, 1977 a letter was written by Mr Boyd, the first defendants' resident engineer
at the time, to Mr Stacey, the second defendants' site agent. Under the heading "Tunnel
Gas Detection", the letter read:
"Following the brief discussion at the progress meeting yesterday gas detection
particularly for methane is to be arranged on a regular basis. I suggest that this should
be a joint effort, probably arranged on a day to day basis at Sub Agent/ARE level. The
routine should be to check each heading either weekly or fortnightly, except when a
diesel locomotive is in use in which case the checking should be daily. Perhaps the
arrangements could be discussed in detail during Mr Towle's next visit". (My emphasis).
Secondly, there was a diary entry dated April 5, 1977 by Mr Hughes, the first
defendants' deputy resident engineer, which read as follows:

"Gas and contaminants--discussed a testing programme for NO2, CO, CO2 and methane
with Jeff Woodcock and John Towle. (Safety Officer). Draeger test meter is on site
together with tubes for all gases execpt methane; these will be obtained and a weekly
test undertaken in each heading by Mr Towle".
The entry referred to a meeting on April 5, a note of which read:
"Mr Boyd has previously pointed out that the tunnel is in the carboniferous strata and as
such it would be wise to take weekly readings of methane concentrations in each
heading".
Methane is undoubtedly a very dangerous gas. As earlier indicated, it is explosive
when it is found in concentrations of 5 per cent-15 per cent of the *356 atmosphere. It is
asphyxiating when found in concentrations of 30 per cent and upwards of the
atmosphere. Clearly the presence of methane in any significant quantities represented a
hazard to the health and/or safety of anyone encountering it.
17-09 Having made these general observations, it will now be convenient to consider
the case as it involves each defendant individually, although necessarily in this exercise
there is a measure of overlapping. Very extensive submissions were made to us as to the
involvement of the first defendants, and although inevitably in truncated form, I hope
that hereafter I do justice to them.
First, it was rightly emphasised that methane is either biological or geological in
origin. There was no evidence to suggest that biological methane played any part in the
accident. As to geological methane, it can be encountered in two ways, either in gaseous
form or dissolved in water. The post-accident investigation disclosed that near 99 per
cent of methane gaining ingress to the tunnel was in gaseous form, and that although
ground water was coming into the tunnel through the porous concrete linining at the rate
of approximately one million litres per day, this did not play anything other than an
insignificant contributory role in what occurred. Methane in gaseous form may be
released from carbonaceous rocks when pockets of gas are affected as a result of the
disturbance of strata during excavation. Such release is known as stress relief methane. It
is transient in the sense that, because of the limitations of its volume, it will dissipate
itself within weeks of its release. Clearly, therefore, what happened in 1984 was not the
result of stress relief methane. The other possible source of methane is from a reservoir
of gas which may be released through a cap of impervious rock. Such a reservoir may
contain vast volumes of methane which will continue leaking over a period of years.
This was the source of methane which caused the explosion, although the learned Judge
declined to make any more specific finding in the light of conflicting theories as to the
location of the reservoir. To this day gas is continuing to escape and, of course, it has
been necessary to re-design the link so that ventilation of any atmospheres in the tunnel
no longer presents any hazard.
The learned Judge found negligence proved against the first defendants: (a) at the
design stage; (b) at the construction stage, and (c) thereafter. My own reading of the
judgment is that the Judge did not necessarily condemn the design ab initio.
Mr Haswell, one of many distinguished experts called in the case, was critical of the
original design because it provided for ventilation of the tunnel atmosphere into the
valve-house. The Judge did not specifically accept this assessment, but he certainly
found that during the course of construction methane was entering the tunnel; tests for it
were inadequate, and that the absence of any testing after lining of the tunnel was

causative of the accident. In the end I do not think it matters whether the Judge found
that the original design was negligently defective. Counsel for the first defendants
conceded, during the course of arguing this appeal, that if there was justification for a
finding that methane was entering the tunnel during construction in quantities, such that
a leaking reservoir should have been suspected by the first defendants, then re-design
was imperat *357 ive. But before reaching this stage the judge had to consider, and did
consider, foreseeability at the design stage.
17-10 We were referred to a number of authorities dealing with the spectrum of the
likelihood of events, ranging from probabilities to remote possibilities. For my part, I
derive most assistance from the words of Lord Reid in Overseas Tankship (U.K.) Ltd v.
The Miller Steamship Co. Pty & Anor [1967] 1 A.C. 617 at 642. Dealing with remote
risks, he said:
"But it does not follow that, no matter what the circumstances may be, it is justifiable to
neglect a risk of such a small magnitude. A reasonable man would only neglect such a
risk if he had some valid reason for doing so, e.g. that it would involve considerable
expense to eliminate the risk. He would weigh the risk against the difficulty of
eliminating it. If the activity which caused the injury to Miss Stone had been an unlawful
activity, there can be little doubt but that Bolton v. Stone would have been decided
differently. In their Lordships' judgment Bolton v. Stone did not alter the general
principle that a person must be regarded as negligent if he does not take steps to
eliminate a risk which he knows or ought to know is a real risk and not a mere
possibility which would never influence the mind of a reasonable man. What that
decision did was to recognise and give effect to the qualification that it is justifiable not
to take steps to eliminate a real risk if it is small and if the circumstances are such that a
reasonable man, careful of the safety of his neighbour, would think it right to neglect it".
The test, formulated in this way, then has to be applied to to the facts of the instant
case. Was it foreseeable that methane would be encountered? If it was encountered, were
the first defendants entitled to assume that such methane was merely stress relief
methane, and would not adversely affect the permanent works? Did the first defendants
ever consider the distinction between stress relief methane and reservoir methane? These
are all relevant questions with which the judge had to deal.
As to the strata through which the tunnel passes, the judge had this to say:
"At a depth up to about 170 metres it goes through the tail end of the Grysdale anticline;
this is formed by a fractured and fissured fold in the earth's strata. The nature of the
strata in this area is what geologists call millstone grits of upper carboniferous formation
above the carboniferous limestone and beneath the coal measures. The millstone grits
could be expected to consist of alternating layers of mudstones, siltstones and
sandstones with shale bands, and such layers were, in fact, repeatedly and irregularly
met during tunnelling ...
Sandstone is porous and therefore capable of providing a reservoir for gas. Mudstone is
impermeable and therefore capable of providing a cap for such a reservoir. Siltstones are
partly permeable and partly impermeable. Shale can be both a source rock for methane
and a reservoir cap. Fracture and fissures may provide an escape route through an
otherwise impermeable cap, but they can also seal an otherwise open escape route".
17-11 *358 Alongside that finding, which was not contentious, the Judge received in
evidence a document dated August 1976 produced by the British Standards Institution,

which was a draft British Standard Code of Practice on Safety in Tunnelling. It had been
circulated, and it was not disputed would have been available to the first defendants. It
contains substantial passages relating to methane, but I need quote only a short extract
from it, as follows:
"Methane (CH4) is a flammable gas produced in nature by the decomposition of organic
matter. It is commonly found in or he near to carbonaceous rocks more particularly coal
seams and shales and oil bearing strata, but also in peat and organic silts and wherever
organic matter decays in wet conditions. The gas can travel laterally for considerable
distances along joints and fissures or through porous rocks and is readily soluble in
water by which it may be transported ... Methane may appear in an excavation as a
steady infiltration or may occur in sudden outbursts when a pocket of gas is penetrated
by a drill ... If a tunnel is being excavated through ground in which there is reason to
suspect the presence of methane, sampling and testing should be done at frequent
intervals so that any actual occurrence may be detected ... When the presence of methane
or other explosive gas is indicated the nature and intensity of the inflow should be
specifically tested".
Mr Brennan, on behalf of the plaintiffs, points out that the Code, both in its draft
form and in its final form (which omitted some passages from the draft, though none of
significance) did not seek to draw any distinction between stress relief methane and
reservoir methane. Upon the evidence of this Code alone, submits Counsel, having
regard to the strata through which the tunnel was being driven, the first defendants were
put on notice as to the risks of encountering methane from whatever source. Indeed, it is
worthy of mention that some witnesses, whilst recognising the need for testing for
methane, did not appreciate the difference between stress relief and reservoir gas. What
was important was that testing should be continued until the risk of continuing methane
ingress into the tunnel had been eliminated.
Apart from the draft Code of Practice, there was other literature available circulating
among senior staff of the first defendants which, it is submitted, should have put the first
defendants on notice. The Judge referred to an article in a standard magazine dealing
with a disaster in 1967 in the United States which suggested that one of the lessons to be
learned from that disaster was that methane can occur in the most unexpected situations,
and in particular "can occur in rocks other than coal-measures".
Finally, upon this aspect of the case, there was evidence of the existence of a borehole at Whitmoor, which had been drilled to a depth of just over 5,000 feet by an oil
company in late 1966 and early 1967. The log was said to be confidential, but an official
of the oil company gave evidence to the effect that if his employers had been
approached, the log would have been disclosed. The Judge accepted that evidence,
together with the evidence of Mr Eastaff, the first defendants' geologist, who told the
Court that he would have liked to see bore- *359 holes along the tunnel line, and that if
he had seen the log it would have led him to believe "the possibility of methane in the
tunnel was worthy of consideration". The log disclosed the presence of methane (and it
was not stress methane) at three levels: 700 feet; 1,100 feet and 3,300 feet underground.
The evidence adduced by the first defendants from a number of courses was
basically to the effect that the first defendants were confronted with a remote, or very
remote risk of encountering stress relief methane during the construction of the link. The
Judge rejected this, and it is implicit in his judgment that he took the view that the first

defendants should have anticipated methane as a matter of certainty in transient small


amounts, and as a clear possibility in larger amounts, coming through fissures from
reservoirs.
17-12 The first defendants attack this finding and submit it is against the weight of
the evidence. They called witnesses who regarded the risks as so slight that no steps,
other than those that were taken in the way of ventilation of the tunnel during
construction, were necessary.
In the light of these conflicts which confronted the Judge, this, therefore, may be an
appropriate stage to make some observations about the role of the Court of Appeal in
dealing with cases of this kind where there are many conflicts of expert testimony.
We were referred to many authorities. In my judgment it is unnecessary to cite
extensively from them, for the theme of the cases is plain. The trial judge has the
advantage of seeing and hearing the witnesses. The Court of Appeal should interfere
with his findings of fact with great reluctance and only in circumstances where it is
demonstrated that the Judge is plainly wrong. The fact that the Court of Appeal might
arrive at a different conclusion of fact upon conflicting evidence does not justify the
reversal of the trial judge. The impression of a witness may not relate only to his
credibility, but may involve his reliability and his objectivity and his consistency. This
applies particularly to experts.
In the instant case the Judge heard from no less than 11 experts (four for the
plaintiffs, four for the first defendants, two for the second defendants and one for the
third defendants). They had prepared 15 reports which ran to hundreds of pages. The
Judge had to make up his mind which experts he preferred, and although he rarely
indicated in his judgment why he preferred the evidence of one expert to another, I do
not think this Court should interfere with his approach unless convinced that it was
wrong.
In The Hontestroom [1927] A.C. 37 at 47, Lord Sumner said:
"What then is the real effect on the hearing in a Court of Appeal of the fact that the trial
judge saw and heard the witnesses? I think it has been somewhat lost sight of. Of course,
there is jurisdiction to retry the case on the shorthand note, including in such retrial the
appreciation of the relative values of the witnesses, for the appeal is made a rehearing by
rules which have the force of statute: Order LXVIII, r. 1. It is not, however, a mere
matter of discretion to remember and take account of this fact; it is a matter of justice
and of judicial obligation. None the less, not to have seen the witnesses puts appellate
judges less in a permanent position of disadvantage *360 as against the trial judge, and,
unless it can be shown that he has failed to use or has palpably misused his advantage,
the higher Court ought not to take the responsibility of reversing conclusions so arrived
at, merely on the result of their own comparisons and criticisms of the witnesses and of
their own view of the probabilities of the case. The course of the trial and the whole
substance of the judgment must be looked at, and the matter does not depend on the
question whether a witness has been cross-examined to credit or has been pronounced
by the judge in terms to be unworthy of it. If his estimate of the man forms any
substantial part of his reasons for his judgment the trial judge's conclusions of fact
should, as I understand the decisions, be let alone".
17-13 In The Julia 14 Moo. P.C. 210, at 235 Lord Kingsdown said:

"They, who require this Board, under such circumstances, to reverse a decision of the
Court below upon a point of this description, undertake a task of great and almost
insuperable difficulty.... We must, in order to reverse, not merely entertain doubts
whether the decision below is right, but be convinced that it is wrong".
Lest it be thought that these principles doe not apply where the judge is confronted
with conflicts between experts, Viscount Sankey L.C. in Powell v. Streatham Manor
Nursing Home [1935] A.C. 243, said at 251:
"There were contradictions on questions of fact between professional witnesses of high
experience and standing, there were contradictions of expert evidence between similar
witnesses who were not called as to fact, but as to their opinion. In circumstances like
the present the Court of Appeal should be slow to upset the judgment arrived at by the
judge who both saw and heard the persons-who gave evidence".
Earlier he had cited Lord Shaw in Clarke v. Edinburgh Tramways Co. 1919 S.C.
(H.L.) 35 at 36, who had observed:
"When a judge hears and sees witnesses and makes a conclusion or inference with
regard to what is the weight on balance of their evidence, that judgment is entitled to
great respect, and that quite irrespective of whether the Judge makes any observation
with regard to credibility or not. I can of course quite understand a Court of Appeal that
says that it will not interfere in a case in which the Judge has announced as part of his
judgment that he believes one set of witnesses, having seen them and heard them, and
does not believe another. But that is not the ordinary case of a cause in a Court of justice.
In Courts of justice in the ordinary case things are much more evenly divided; witnesses
without any conscious bias towards a conclusion may have in their demeanour, in their
manner, in their hesitation, in the nuance of their expressions, in even the turns of the
eyelid, left an impression upon the man who saw and heard them which can never be
reproduced *361 in the printed page. What in such circumstances, thus psychologically
put, is the duty of an appellate Court? In my opinion, the duty of an appellate Court in
those circumstances is for each Judge of it to put to himself, as I now do in this case, the
question, Am I-- who sit here without those advantages, sometimes broad and sometimes
subtle, which are the privilege of the Judge who heard and tried the case--in a position,
not having those privileges, to come to a clear conclusion that the Judge who had them
was plainly wrong? If I cannot be satisfied in my own mind that the Judge with those
privileges was plainly wrong, then it appears to me to be my duty to defer to his
judgment".
Faced with these propositions, counsel for the first defendants nevertheless submits
that on the evidence the judge was plainly wrong in holding that competent engineers, at
the material time, should reasonably have foreseen the possibility of leaking methane
affecting the permanent works. Without examining the precise terms of the evidence, I
have well in mind the evidence of Mr Eastaff, the first defendant's geologist, who had
never encountered a reservoir of methane even in coal measures, although he would
have liked more information from the Whitmoor borehole. The testimony of Mr
Hammond, a partner in the first defendants who was a very experienced engineer, was to
the effect that methane was to be expected wholly from coal measures, and he did not
appreciate that it was soluble in water.
17-14 Likewise Mr Collins, who was the project engineer responsible for the design
of the tunnel link, who thought that there was a slight risk of transient methane, but no

more. He was succeeded by Mr Dunn in 1975, who did not believe that there was any
risk of leaking methane.
The evidence of Mr Arah, another partner in the first defendants, was to the same
effect. All that evidence, a summary of which I recognise does not do it full justice, had
to be set against a considerable volume of expert evidence called on behalf of the
plaintiffs. There was a geologist, Mr Williamson, a University lecturer in mining
engineering. He was asked:
"Q. Having regard to the geology background at this time, the actual site investigations,
and what was known or not known, what basic advice would you have given to
concerned engineers and contractors about methane? (A) Having regard to the site
investigation as it was done? (Q) And the geology that you have told us about;
everything available? (A) Yes, I would have said that it was imperative that methane
testing was done during the contruction of the tunnel".
Later, he confirmed his report, a paragraph from which reads:
"The possible occurrence, which might or might not have been proved by the boreholes,
of a coal seam or seams within the sub-tunnel strata, together with contemporary
knowledge of the natural gas/petroleum potential of the rock strata, and further
emphasised by hydrocarbon exploration activity in the area prior to tunnel construction
would have occasioned a geologist *362 with experience in carboniferous rocks of
North Western England to note that there would be a foreseeable risk of methane
seepage at the tunnel horizon".
A second lecturer in mining engineering, Dr Whittaker, said:
"My principal conclusion was that there was a clear risk of methane occurrence in the
Wyresdale Tunnel both during construction and afterwards".
Mr Haswell, another consulting engineer called on behalf of the plaintiffs, described
the possibility of gas methane as "very strong".
The emphasis, the choice of words to describe what should or should not have been
foreseen, varied from witness to witness, but having been taken through the evidence
upon this aspect of the case in the greatest possible detail, I find it quite impossible to
assert that the learned Judge was plainly wrong. In my view there was ample evidence
which the Judge carefully reviewed and summarised to justify his ultimate finding,
which was as follows:
"The quality of the first defendants' conduct at the design stage can be put in a sentence:
They failed to exercise reasonable care in assessing the risk of encountering methane,
the presence of which in significant, though not necessarily dangerous, quantitites was
reasonably foreseeable as a matter of probability. This conduct in itself did not cause the
disaster, but it set the scene for what followed and it raised a question mark over the
wisdom of ventilating into the valve-house, whereby that aspect of design needed to be
reviewed in the light of experience during construction."
17-15 Some might say that the word "possibility" rather than "probability" would
have been a more appropriate epithet to describe the likelihood of methane but, having
regard to its lethal qualities, I am satisfied that the risk of its being encountered was such
that, following the tests laid down in the Wagon Mound and elsewhere, it was incumbent
upon the first defendants to eliminate the risk before confirming the design.
What, then, of the construction? This provided the platform where the starkest
conflicts between the plaintiffs and the first and second defendants arose.

After the letter dated March 24, 1977 from Mr Boyd requiring tests for "gas
detection particularly for methane" had been written, construction of the tunnel
continued for another fifteen months or so. The overall period of construction, including
the lining, extended over a period of two and a half years. It is accepted by both the first
and the second defendants that no adequate system for testing was ever invoked, no log
was kept and, save in a very few instances, no records of tests (if they were recorded at
all) were preserved. The plaintiffs, therefore, were left to make what use they could of
such records as remained available to them, and I now propose to examine those records.
All tests were carried out using the Draeger test meter as required by the
specification. The handbook for the equipment dealt with the natural gas test, which was
a qualitative test. However, the handbook provided that: "The indica *363 tion is about
5mm with a concentration of 0.5 volume per cent methane". The indication referred to as
"5mm" was a stain on the indicating tube. Any such test, however, was subject to crosssensitivity, in particular from carbon monoxide. The test was also subject to what was
described in the handbook as a relative standard deviation. In the handbook, the
following passage appears:
"The standard deviation is a measure of the incidential deviations of the individual
values from their mean value. It is a pre-requisite that the frequency distribution of all
the measured values observed can be represented approximately by a Gauss-Glocken
curve. With this distribution, 68 per cent of all possible measured values lie within the
standard deviation range".
These reservations had to be borne in mind when approaching such evidence as was
available to the plaintiffs as to testing during the period of construction. It will be
recalled that 0.5 per cent was the critical figure, representing 10 per cent of the lower
explosive limit for methane. If it was encountered, it would undoubtedly give cause for
concern and would require the withdrawal of labour.
The first recorded test was made on April 21, 1977, that is, some 16 months after the
commencement of tunnelling. The record took the form of a memorandum from Mr
Towle, described as the second defendants' safety officer, to Mr Stacey, the second
defendants' site agent. It read as follows:
"I have today taken readings in Rowton and Abbeystead tunnels for carbon dioxide,
carbon monoxide, nitrous fumes and natural gas. In all cases the readings were negative,
except in the Rowton tunnel which showed a reading of 0.5% by volume CH4 methane".
17-16 It should be observed that this reading was said to have taken place in the
absence of carbon monoxide, a factor in cross-sensitivity to which I have earlier
referred. At some stage the figure "0.5%" was crossed out, and 0.05% was substituted.
This has remained a mystery. No-one would admit to the alteration, and clearly it was
nonsensical because the Draeger equipment was incapable of recording such a reading.
The motive for the alteration remained unexplained. Its only evidential value could be
that if Mr Stacey made the alteration, it demonstrates a serious gap in his understanding
and responsibilities as safety officer.
The remaining recorded tests were carried out by a Mr Wild, the site mechanical
engineer employed by the second defendants. They began on May 10, 1977, the last test
being October 24, 1977. On May 10, Mr Wild obtained a 5mm stain in the presence of
carbon monoxide; on May 24, a 10mm stain in the presence of carbon monoxide; a
negligible stain on May 25; a 3mm stain on June 8; a 30mm stain in the presence of

carbon monoxide on June 9; a 2mm stain on July 11; a zero reading for natural gas on
August 17; a 10mm stain in the presence of carbon monoxide on August 22, and a zero
reading for natural gas in the absence of carbon monoxide on October 24, 1977. There
were therefore three occasions when the stains reached 10mm and above, and two
occasions when they reached 5mm.
*364 These tests were advanced by the plaintiffs as some evidence that during the
course of construction methane was coming into the tunnel, and when Mr Stacey, the
site agent, was asked to comment upon them, he acknowledged that they led him to
believe that small quantities of methane were present.
The reliability and evidential value of the tests were examined by two experts--a Mr
Edwards on behalf of the plaintiffs, and a Mr Shillito on behalf of the first defendants. It
is worth recording, by way of preliminary observation, that in post-accident
investigations it was noticed that the rate of methane flow into the tunnel varied to a
substantial extent from test to test, and further, as Mr Edwards pointed out, a point of
ingress prior to lining would not necessarily be the same after lining, the variation being
up to 200 metres.
In his first report dated August 13, 1986, Mr Shillito prepared a graph which
indicated that in his view all but four of Mr Wild's tests could be explained by the
presence of carbon monoxide. The comparatively high readings could be explained by
the presence of blasting gasses or purely temporary pockets of methane as the tunnel
entered methane-bearing rock.
Mr Shillito and Counsel for the first defendants emphasised the result of the tests
taken on October 24, 1977 in the Rowton drive, when zero readings for natural gas were
obtained, no carbon monoxide being present. All other tests had been taken when what
appears to have been a highly efficient ventilating system in the tunnel was in operation.
On October 24, 1977, as Mr Wild's record discloses, the ventilation was not in operation,
but in its place compressed air-cocks had been left on for a period of four days. This last
fact is not mentioned in Mr Shillito's report, nor is any reference made to Mr Wild's
recorded remark: "Air-cocks have been left on since 20/10/77 and this has got rid of
most of the stale air".
There was a paucity of evidence as to the effect of these air-cocks upon the
atmosphere, save for Mr Wild's non-scientific observation. Mr Shillito's conclusion was
that: "If methane was entering the tunnel at that stage in 1977 it must have been in very
much smaller quantities than were measured in 1984".
17-17 Mr Edwards, the consulting engineer called by the plaintiffs, prepared his first
report on July 28, 1986. Having examined Mr Wild's records, he expressed the view that
where the readings on the natural gas sample tube were 10mm (May 24, 1977), 30mm
(June 9, 1977) and 10mm (August 22, 1977), the readings were "greater than would be
expected from the effects of the presence of carbon monoxide". The conclusion of Mr
Edwards was that "methane was definitely present in the Abbeystead heading" on those
occasions.
In December 1986 Mr Edwards conducted a series of experiments, under controlled
laboratory conditions, in order to test the behaviour of the Draeger equipment in relation
to cross-sensitivity of carbon monoxide. Graphs were prepared which showed, as Mr
Shillito's graphs had shown, three of the tests not being capable of explanation by reason
for carbon monoxide alone. Mr Edwards concluded: "The results of these tests confirm

our view that during construction of the Wyresdale tunnel positive indications were
obtained that methane was present in the atmosphere."
He added: "The Draeger natural gas test is affected in atmospheres contamin *365
ated with carbon monoxide because of the difficulties over cross-sensitivity. A
methonometer, in contrast, gives reliable results".
The first defendants never directed the second defendants to use a methonometer,
and none was ever used. When Mr Edwards gave evidence, he was asked: "Was methane
present during the construction of the tunnel?" The answer was: "Yes, my belief is that it
was".
Mr Shillito prepared a second report dated January 9, 1987. In it he raised what he
described as "random" errors which result from the manufacturing process and the way
the stain can be subject to systematic errors resulting from the way the tube and pump
are used in the conditions--including cross-sensitivity with other gases which may be
present. Applying what was described as "two standard deviations", Mr Shillito prepared
a further graph which showed only one test, the 30mm stain, outside the parameters. Mr
Shillito again concluded: "The only result free from error due to cross-sensitivity from
this section of the tunnel is that of October 24, where no methane and carbon monoxide
was found. This was a test made in the blind end of the Rowton drive before the break
through with the Abbeystead drive".
Again, there is no mention made in the report of the potential effect of compressed
air.
This judgment would become inordinately long if I were to rehearse the evidence of
other experts who dealt with the tests and cross-sensitivity. Suffice it to say that Dr
Whittaker, called on behalf of the plaintiffs, supported Mr Edwards; Professor Knill
supported Mr Shillito. Mr Tough, a consultant engineer and geologist, called by the
second defendants, whilst critical of the Draeger equipment, acknowledged that methane
above 0.5 per cent could have been present during tunnelling. Mr McKenzie, another
consultant engineer, called by the second defendants, said: "I would wish to make it
clear that my view is that if there is carbon monoxide in the atmosphere and there is a
positive natural gas result that is not a satisfactory natural gas test".
17-18 All the evidence to which I have hitherto referred upon this aspect of the case
was closely investigated during the trial, as it was during the hearing of this appeal. For
the first defendants it was submitted that if methane had been present during tunnelling,
its presence would have been detected in a more dramatic form than that which the
Draeger equipment purported to detect. There would have been an explosion or
explosions and, according to Professor Knill, visible evidence of the ingress of methane
bubbling out of the inflow of water. All these matters, and no doubt others, were drawn
to the attention of the learned judge, together with the proximity of the places where Mr
Wild's methane readings were 10mm or more, to places where methane was found to be
entering the tunnel after the disaster. No single piece of evidence was conclusive but,
conversely as Mr Brennan on behalf of the plaintiffs reminds us, no expert positively
asserted that methane was not entering the tunnel during the course of construction.
Finally, the Judge accepted the evidence of a Mr Kluczynski a miner of 21 years'
experience, five of them with the second defendants. Drawing upon that experience, he
told the Court that he had encountered methane when working in the tunnel during its
construction, that he was able to recognise it by virtue *366 of his experience and

because he got a headache. His evidence was challenged. Mr Kluczynski was never
invited to indicate upon the appropriate plan where he suggested that he had encountered
methane.
Mr Gardam, on behalf of the first defendants, points out that Mr Kluczynski's
description of the location does not accord with any clearly definable point on the plan,
despite the Judge's finding to that effect. Mr Kluczynski's evidence was simply another
part of the overall picture which had to be put into the balance. Having seen and heard
Kr Kluczynski, the Judge thought it appropriate that his testimony should be heeded in
the plaintiffs' favour. For my part I can find no fault in the Judge's approach to Mr
Kluczynski's evidence which would justify our setting aside the Judge's assessment of it.
I am, accordingly, firmly of the opinion that the Judge was entitled to make the
finding that he did, namely, that methane was entering the tunnel during the construction
period. What is the effect of this finding? For the first defendants it is submitted that it is
no more than a finding that methane from some undefined source was entering the
tunnel. In order to succeed, the plaintiffs have to prove, on the balance of probabilities,
that the methane was coming from a reservoir and was not merely stress relief methane.
For the plaintiffs it is emphasised that they were precluded from calling more
compelling evidence identifying the type of methane, and by inference, its source,
because of the negligence of the first defendants in not ensuring adequate testing.
If they had continued to test, as they should have done, long after October 1977, it
would then have become apparent, one way or the other, whether the ingress was purely
temporary or had the quality of permanency, which would have pointed to a leaking
reservoir. What the first defendants failed to do was to eliminate the risk of the gas
coming from a leaking reservoir. They cannot be heard to say, therefore, that the
plaintiffs have failed to discharge the burden of proof. Indeed, it is submitted the fact
that the ultimate explosion was caused by a leaking reservoir together with the negligent
failure to test, was sufficient to discharge the burden of showing on the balance of
probabilities, that the methane finding its way into the tunnel in 1977 was indeed
reservoir methane. The elimination of reservoir methane was never put to the test and it
was the fault of the first defendants that it was not put to the test. They should not be
allowed to take advantage of their own neglect.
17-19 I accept the submissions made on behalf of the plaintiffs upon this aspect of
the case. To meet them, though in no-wise conceding that they were under any
obligation so to do, the first defendants led evidence, the burden of which was that the
leaking reservoir was situated about 1,000 metres below the surface; that it was
disturbed by tunnelling operations, creating a fall in the water tables, and that a
minimum period of five years had to elapse after the leak developed before the methane,
creeping up in gaseous form or dissolved in water, could reach the porous lining of the
tunnel. This theory was propounded by Professor Knill.
The Professor's first report was written in July 1986.
He concluded: *367
"The most plausible explanation for the influx of the methane into the Wrysdale tunnel
on the present evidence is as follows:
(i) A gas reservoir exists at some distance from, and probably below, the tunnel; both
fractured sandstone and fractured and or porous limestone could provide suitable
reservoir rock conditions. A trap has been formed by folding or faulting being over-lain

and confined by shale or mudstone layers. The source rock for the methane was either
shale or mudstone or limestone.
(ii) Driving of the tunnel resulted in the inward drainage of groundwater toward the
tunnel. There was a consequential reduction of groundwater pressure in the zone
affected which may extend up to one kilometre laterally or vertically downwards from
the tunnel.
(iii) Reduction in the groundwater pressure below the gas reservoir resulted in
downward expansion of the trapped gas so that it leaked out of the bottom of the trap,
and is now carried up with the groundwater flow along faults and sandstone layers
towards the tunnel possibly being taken into solution during this process.
(iv) Close to the tunnel this deep groundwater becomes mixed with younger
groundwater draining down from the surface and containing air with some biologically
derived methane.
What is difficult to estimate is the time scale within which such a process could be
established and could cease. If there were to be an open connection between the spill
point of the gas reservoir and the tunnel then this process should have been established
and completed well within the construction history of the tunnel. However, the
geological sequence involved does not contain open connections and does involve rocks
which would impede water movements. If the gas reservoir were to be some distance
from the tunnel, then the gas spillage from the trap could take many months, or years, to
be established. By the same token, completion of drainage of gas from the trap would be
delayed over a significant period".
The Professor went on to deal with foreseeability, a topic with which I have already
dealt.
The Professor's second report is dated December 1986. It makes no reference to the
Whitmoor borehole, but by the time that report was prepared, the Whitmoor borehole
log had been obtained and the Professor had consulted it. It seems that it caused a radical
change in the Professor's views because, in his second report, he indicated that he
regarded the Pendle Grit Reservoir as only the faintest possibility, but the Pendleside
limestone or shale or mudstone was a possible source. This was located a thousand
metres below the surface.
17-20 Adopting what is known as D'Arcy's law, the Professor concluded that the gas
would take something between five and 1,000 years to reach the tunnel after a leak had
developed. This calculation the Professor produced for the first time during the course of
his evidence. So far as I have been able to discover from the transcript, the Professor
was never asked whether the calculation applied to methane which remained in gaseous
form from the moment it left the reservoir, *368 to the moment it arrived in the tunnel-although in the Professor's memorandum on the formula he speaks frequently of the
upward flow movement of fluid or methane saturated groundwater.
Be that as it may, the formula necessarily involved a number of assumptions.
Caution in its use was recommended in learned literature. The assumption of the
reservoir being 1,000 metres below ground was an important component of the
calculation. No-one can predict with any accuracy the depth of the reservoir, nor the
extent of permeability in the strata separating it from the tunnel. Professor Knills'
calculation was the subject of much criticism by other experts, and no other expert
adopted it. Rose J. had this to say:

"I venture to suggest that if one of Professor Knills' pupils had produced it, he would
have received high marks for ingenuity but none at all for likely reliability.
Accordingly, there is in my judgment no satisfactory evidence that the gas first arrived
after construction had been completed. The lack of minor explosions, despite the fact
that smoking was permitted, burning and welding took place and the equipment was not
flameproofed, does not show the absence of methane. For it is common ground that the
amount of ventilation provided, despite the inadequacy of the specification, was very
high, generally efficient and well able to disperse the comparatively low levels of
methane there were entering. I am therefore satisfied that gas was present during
construction, certainly from the Spring of 1977, and was entering the tunnel over a
significant length and in significant quantities, albeit in varying places and amounts. The
gas was in fact of geological rather than biological origin".
In my judgment, Rose J. was entitled, on the evidence, to make these findings, but
complaint is made that he did not seem to comprehend that it was essential for the
plaintiffs to prove that the ingress of methane during construction was from a reservoir
source as opposed to stress relief. In an earlier part of the judgment it is true that the
Judge, when referring to Professor Knills' reports and evidence, indicated that they were
directed to establishing "... the likely actual source of the continuing inflow of methane".
The Judge continued:
"This is a matter which, save in relation to whether there was methane present during
construction (which I will deal with later) is only relevant to this trial if the plaintiffs
have to prove (as in my judgment they do not) that the defendants ought to have
foreseen the precise source and identity of the methane".
17-21 Taken in isolation, this last sentence is a plain mis-direction if the words "the
precise source and identity of the methane" are to be taken as meaning "reservoir
methane". In the context of the judgment taken as a whole, however, I cannot believe
that the Judge misunderstood the position and did not appreciate the need for a finding
that reservoir gas was coming into the tunnel during *369 construction. For my part this
is what I am sure he intended to convey when he observed: "There is ... no satisfactory
evidence that the gas first arrived after construction had been completed".
"The gas" must refer in this context to gas from the same source as that which
caused the explosion in 1984.
The next point taken by the first defendants relates to causation. Mr Gardam submits
that the creation of the void as the result of the combination of drought conditions and
the third defendabts' deliberately lowering water levels in the tunnel by opening washout
valve number six was so outside the contemplation of the first defendants as to
constitute novus actus interveniens. I am quite unable to accept this submission. It is
perfectly true that in normal operation the tunnel would be full of water, but the evidence
plainly disclosed that from time to time voids would be present. They could arise
deliberately when the system was de-watered for the purposes of inspection or
maintenance; they could arise accidently as a result of some malfunction, perhaps of the
washout valves or perhaps as a result of some leakage through the lining. Mr Gardam's
submission is that such voids would be readily detected and remedied. In any event the
Water Authority would be able to take appropriate measures to eliminate any risk of
danger in such a situation. The disaster, submits Mr Gardam, was occasioned by the
activities of the third defendants, over which the first defendants had no control. Further,

or in the alternative, submits Mr Gardam, the visit of the party of residents to the valve
house was outside the contemplation of the first defendants.
With every respect to Counsel, this last point is, in my view, unarguable. At some
time not only was it forseeable--it was inevitable--that there would be visitors to the
valve house and the fact that the first defendants would not necessarily envisage local
residents going there is not to the point.
Counsel for the first defendants cites a number of authorities upon the topic of
remoteness of damage, submitting that they support his argument that the activities of
the third defendants broke the chain of causation between the first defendants'
negligence, arising from their failure to supervise and redesign, and the ultimate disaster.
For my part I would respectfully adopt the words of Watkins L.J. in Lamb & Anor. v.
Camden London Borough Council & Anor [1981] Q.B. 625, when at 646 he said:
"It seems to me that if the sole and exclusive test of remoteness is whether the fresh
damage which has arisen from an event or act which is reasonably foreseeable or
reasonably foreseeable as a possibility, or likely or quite likely to occur, absurd, even
bizarre, results might ensue in actions for damages for negligence. Why, if this test were
to be rigidly applied to the facts in the Dorset Yacht case [1970] A.C. 1004, one can
envisage the Home Office being found liable for the damage caused by an escaped
Borstal boy committing a burglary in John O'Groats. This would plainly be a ludicrous
conclusion."
17-22 I do not think that words such as, among others, "possibility", "likely", or "quite
likely", assist in the application of the test of reasonable foreseeability. If the crisply
stated test which emanates from The Wagon Mound [1961] A.C. 388 *370 is to be
festooned with additional words supposedly there for the purpose of amplification or
qualification, an understandable application of it will become impossible. In my view
The Wagon Mound test should always be applied without any of the gloss which is from
time to time being applied to it.
But when so applied it cannot in all circumstances in which it arises conclude
consideration of the question of remoteness although in the vast majority of cases it will
be adequate for this purpose. In other cases, the present one being an example of these in
my opinion, further consideration is necessary, always providing, of course, that a
plaintiff survives the test of reasonable foreseeability.
This is because the very features of an event or act for which damages are claimed
themselves suggest that the event or act is not upon any practical view of it remotely in
any way connected with the original act of negligence. These features will include such
matters as the nature of the event or act, the time it occurred, the place where it occurred,
the identity of the perpetrator and his intentions and responsibility, if any, for taking
measures to avoid the occurrence and matters of public policy.
A robust and sensible approach to this very important area of the study of remoteness
will more often than not produce, I think, an instinctive feeling that the event or act
being weighed in the balance is too remote to sound in damages for the plaintiff. I do not
pretend that in all cases the answer will come easily to the inquirer. But that the question
must be asked and answered in all these cases I have no doubt".
Applying those observations to the instant case, I am left in no doubt but that the
first defendants should reasonably have foreseen the creation of a void contaminated
with methane in potentially explosive quantities, and the fact that that void was

contributed to by activities of the third defendants (which were neither unlawful nor
contrary to any instruction issued to them by the first defendants) does not create a
novus actus interveniens absolving the first defendants from liability for the damage.
As Mr Playford, for the third defendants, submits, this was an accident of the precise
type that the first defendants should have foreseen, albeit that all its circumstances were
not contemplated by them (Hughes v. Lord Advocate [1963] A.C. 837).
Finally, as to the first defendants, the learned Judge found them:
"To some slight degree negligent in not keeping abreast with, passing on to the third
defendants and considering, in relation to design, developing knowledge about methane
between handover and 1984".
In the light of what follows in this judgment it is not necessary to review that
finding, nor express any concluded view about it. I content myself with observing that in
the terms expressed by the Judge it would seem to place startlingly onerous
responsibilities upon professional organisations such as the first defendants. It would
seem to involve duties relating to work completed many years *371 before the
professional organisation is actually or constructively put on notice of fresh material.
17-23 Mr Brennan, on behalf of the plaintiffs, seeks to uphold the Judge's ruling. But
whilst dismissing the appeal of the first defendants, as I feel constrained to do for all the
reasons I have indicated, I would not wish it to be thought that I support this last part of
the Judge's ruling upon a pure point of law.
I turn to the appeal of the second defendants. The starting point is their duty, as
expressed by the learned Judge. He said:
"It was owed by the second defendants in relation to construction of the tunnel and valve
house not only to their own and the first defendants' employees during construction, but
also to visitors to the finished works, if, but only if, during construction they, the second
defendants, became aware of, ought reasonably to have become aware of, natural
conditions which might reasonably foreseeably affect the safety or integrity of the
permanent works. In such a situation, it was their duty to bring such conditions to the
notice of the first defendants. The standard of care required was that of reasonably
competent contractors specialising in tunnelling, applying the standards appropriate at
the time of construction".
This approach is attacked by Counsel for the second defendants, Mr Crawford
Lindsay, who first pointed to a passage in the judgment which reads as follows:
"There is a clear distinction in relation to the responsibility for the permanent and
temporary works. There is no doubt that the second defendants' primary responsibility,
in accordance with the specification and their obligations under Section 21 of the
Construction (General Provisions) Act 1961, was to ensure the safety of those in the
tunnel, and there is no doubt that by ample ventilation they discharged that duty".
Mr Lindsay realistically acknowledges that his clients, in failing adequately to test,
were in breach of their contractual obligations, but the burden of his submissions (put
shortly) is that this failure did not involve a breach of any duty owed to the plaintiffs.
Undoubtedly the second defendants owed a duty of care, embracing the need to test,
throughout their occupation of the tunnel. That duty was owed, not only to their own
employees, but to all those who might visit the tunnel during construction. But so far as
the permanent works were concerned the duty, it is submitted, was to construct the

works with reasonable care so that they did not cause foreseeable damage to third
parties, such as subsequent users of the structure that was being constructed.
A clear illustration of such a breach would have occurred if, through negligence of
the second defendants in the building process, the roof of the valve house had collapsed
simply because it was structurally unsound. That type of liability, however, is not to be
equated with the failure to test for methane during construction. The purpose of such
testing, as Clause 2.8.102 plainly indicated, was to ensure, for the benefit of the
workforce, that the concentration of *372 imflammable contaminants never exceeded 10
per cent of the lower explosive limit, and the whole tenor of the relationship between the
first defendants and the second defendants was to achieve this purpose. There was
nothing in that relationship to put the second defendants on notice that testing had to be
continued upon their ceasing to occupy the works. They were never requested by the
first defendants to test for the safety of the permanent works. There was, therefore, no
proximity between them and the plaintiffs which, in the context of testing, could create a
duty; nor was it just and reasonable to impose such a duty upon them.
17-24 Mr Lindsay's submissions as to the extent of his clients' duty are encapsulated
in the passage in the judgment of Richmond P. in the Court of Appeal, New Zealand, in
Bowen & Anor. v. Paramount Builders (Hamilton) Ltd & Anor [1977] 1 N.Z.L.R. 394 at
407:
"It is clear that a builder or architect cannot defend a claim in negligence made against
him by a third person by saying that he was working under a contract for the owner of
the land. He cannot say that the only duty which he owed was his contractual duty to the
owner. Likewise, he cannot say that the nature of his contractual duties to the owner sets
a limit to the duty of care which he owes to third parties. As regards this latter point it is,
for example, obvious that a builder that agreed to build a house in a manner which he
knows or ought to know will prove a source of danger to third parties cannot say, in
answer to a claim by third parties, that he did all that the owner of the land required him
to do. Nevertheless, the nature of the contractual duties may have considerable relevance
in deciding whether or not the builder was negligent".
It may be, in making his findings against the second defendants, that the Judge (who
did not have the advantage which we have enjoyed of having a full transcript) had in
mind the evidence of Mr Tough, the consulting engineer for the second defendants. At
Volume 13, page 35, the following exchange took place between the Judge and the
witness:
"MR JUSTICE ROSE: ... For the purpose of the safety of the men while tunnelling,
ought this tunnel in your view to have been tested for methane? (A) Well, it would have
been an advantage to know that.
Q. It would have been? (A) It would have been an advantage to know if methane was
existing in any great quantity.
Q. Does that mean it ought to have been tested? (A) Yes, I will agree it ought to have
been tested.
Q. The second part, ought it to have been tested for methane having regard to the nature
of the permanent works? (A) That is a different situation. While you are driving a tunnel
you have this artificial atmosphere and, using the Draeger, I don't think activity such as
blasting-Q. Can we leave means aside? (A) Yes. It is very difficult for me to leave means aside.

Q. Yes, I understand that. Can I redirect your mind to the question which *373 I asked?
Ought the tunnel to have been tested for methane having regard to the nature of the
permanent works? (A) Yes.".
17-25 When he was re-examined at p. 45, the material passage is as follows:
"Q. Is the picture that you have of some testing to be carried out to see what the effect, if
any, would be of contaminants on the permanent works? (A) No, I hadn't that in mind. It
was just the changing situation from construction to the period after the removal of all
the temporary works.
Q. When do you envisage such testing to be undertaken? (A) Immediately the tunnel
was lined out or something at that stage.
Q. We have heard, of course, that when the men are working the ventilation would be
on? (A) Yes.
Q. Because, of course, testing as we have heard in this case was actually undertaken
when the ventilation was on? (A) Yes.
Q. If one was testing for the permanent works or after construction, would you envisage
the ventilation would be on or off to undertake those tests? (A) Would be off.
Q. Why is that? (A) I think that you want a far better definition of methane if it exists at
all rather than reading methane content in a very diluted atmosphere".
Having been taken through the material parts of the evidence in considerable detail
by Counsel, I have been unable to extract from it anything to support the plaintiffs'
contention that a duty was owed by the second defendants to the plaintiffs, save the type
of duty to which I have already referred. In my opinion visitors such as the plaintiffs'
were within the contemplation of the second defendants as being likely to be affected by
defective construction. That duty, however, did not extend to the testing for methane
which was confined, so far as the second defendants were concerned, to a duty owed
only to the users of the tunnel during construction. In my judgment the long-term effect
of the methane was the responsibility of the first defendants alone, whose duties went
beyond construction of the tunnel and involved the exercise of reasonable care in the
design of the system, so as to ensure, so far as was reasonably practicable, the safe
transfer of water through the system from the River Lune to the River Wyre.
Accordingly, in my view, the learned Judge erred in law when he imposed upon the
second defendants what Mr Lindsay described as an additional "parasitic" duty. For the
reasons which I have endeavoured to outline I would, therefore, allow the appeal of the
second defendants.
There remains for consideration the appeal of the third defendants, the North West
Water Authority. From the date of its commission until the date of the disaster, the third
defendants were in occupation of the tunnel and the valve house. The standard of care
required of them was that of a reasonably competent Water Authority. The nature of their
duty is to be found in the Occupiers' Liability Act 1957, namely, the common duty of
care "to take such care as in all the circumstances of the case it is reasonable to see the
visitor will be reason *374 ably safe in using the premises for the purposes for which he
is invited or permitted by the occupier to be there" (section 2(2)).
Section 2(4)(b) provides:
"where damage is caused to a visitor by a danger due to the faulty execution of any work
of construction, maintenance or repair by an independent contractor employed by the
occupier, the occupier is not to be treated without more as answerable for the danger if

in all the circumstances he had acted reasonably in entrusting the work to an


independent contractor and had taken such steps (if any) as he reasonably ought in order
to satisfy himself that the contractor was competent and that the work had been properly
done."
This is a statutory example of the general proposition in section 2(4) that: "In
determining whether the occupier of premises has discharged the common duty of care
to a visitor, regard is to be had to all the circumstances ..."
17-26 It is against that statutory background that the third defendants submit that
they discharged their obligations to the plaintiffs. First, no-one suggested that the first
and second defendants, when employed by the third defendants, were other than
competent independent contractors. Secondly, so far as construction is concerned, there
was nothing to indicate to the third defendants that they were likely to encounter any
problems with the structure. Indeed, in the Instruction Manual compiled by the first
defendants and delivered to the defendants upon commissioning, the following
paragraph appeared:
"1.3.1. The tunnel lining is of mass concrete whose minimum thickness is 300 mm. The
lining was placed in 10 m lengths with a construction joint formed between each pour.
These joints were caulked during construction, but some of the caulking failed and was
subsequently recaulked a year after original completion. In spite of this work ingress of
ground water still occurs and, whilst not in itself harmful, the inflow does contribute to
the difficulties of dewatering the intake, tunnel and pumping shaft".
That seems to me to be a plain representation by the first defendants to the third
defendants that ground water in this particular locality had not caused any problems in
the way of dissolved gases during the course of construction. There was also
unchallenged evidence from Mr Orr, the third defendants' design and construction
manager, to the effect that he had been told by one of the first defendants' partners, Mr
Arah, during construction, that there was no gas in the tunnel.
The protection afforded to the occupier by his reliance upon competent independent
contractors is not absolute, however, as section 2(4)(b) expressly provides by the
addition of the words "without more".
The case for the plaintiffs, therefore, against the third defendants was that in their
capacity as employers of a workforce in the system as well as operators of the system,
they were themselves under obligations to guard against contaminated atmospheres with
knowledge of the venting arrangements. No testing of *375 the atmosphere in the
tunnel, in the valve house or in the venting chamber had been carried out immediately
prior to the visit of the local residents. As to the period back to the date of the
commissioning of the link, there was no evidence before the Court that the third
defendants had carried out any testing for gas in the tunnel or elsewhere. When the
plaintiffs sought to introduce evidence as to this, objection was taken, and the objection
was upheld by the judge. It is right to observe that no allegation in the Pleadings was
made against the third defendants that they ought to have tested atmospheres in voids,
for example, in 1979 when dewatering took place.
What, then, was the position in May 1984? The rate of ingress of methane both as to
its location and as to its volume remained unpredictable, so there was no certainty that
anything other than regular testing, as opposed to an isolated test, would have indicated
the presence of methane at danger levels. But quite apart from these considerations, Mr

Playford submits that there was no evidence that methane ought to have been foreseen
by the third defendants as opposed to the first defendants. They had no reason to suspect
it had been detected during tunnelling in gaseous form, and I have already referred to
what the third defendants were told in the Manual as to ground water.
17-27 Counsel for the plaintiffs argues that the position of the third defendants is
entirely different from the other two defendants. He does not suggest that they should
have foreseen specifically geological methane coming through the porous concrete of
the tunnel. Nevertheless, he relies heavily upon the contents of advisory broadsheets
which, from time to time, were circulated amongst Water Authorities by the National
Joint Health and Safety Committee for the Water Service. These broadsheets were
concerned with health and safety at work, but, submits Counsel, some of the advice they
contained could plainly be appropriate to situations which did not involve working
conditions.
Advisory Broadsheet 4.1, published in October 1977, was concerned with work in
confined spaces, but although it referred to underground valve chambers, it was not
suggested that the place where the disaster occurred was such an underground valve
chamber. In the same month, Advisory Sheet 4.2 was published. This related to
atmosphere testing in confined spaces, but it was not suggested that the valve house was
such a confined space. The broadsheet upon which most reliance was placed by the
plaintiffs was published in August 1978, number 3.21. It is headed "Safety when
working inside large diameter pipelines and tunnels". The material part of the text reads:
"For the purpose of this broadsheet a tunnel means a tunnel carrying water as opposed to
a service duct carrying pipes and a large diameter pipeline means a pipeline large
enough for a man to pass through freely".
HAZARDS The main risk to persons working in large diameter pipelines or tunnels are:
(a) dangerous atmospheres ...
PRECAUTIONS TO BE TAKEN:-(a) Operations involving entry into pipelines or tunnels must be planned and a permit to
work system should operate. The following points may need consideration:-*376 (b) The atmosphere should be checked for oxygen deficiency, explosive or toxic
conditions and certified safe before entry and continuously monitored thereafter".
The valve house to which the party was invited on May 23, 1984 was not a tunnel
carrying water nor an extension of it, but Counsel for the plaintiffs submits that the
venting arrangement whereby the atmosphere inside the tunnel was deliberately
discharged into the valve house created an analogous situation to that envisaged in
Broadsheet 3.21, and consequently imposed upon the third defendants the requirement
to test for dangerous atmospheres, as opposed to geological methane entering the tunnel
through the porous concrete. Even without such ingress it was argued that the conditions
prevailing in May 1984 were such that the third defendants should have contemplated a
dangerous atmosphere collecting in the void.
17-28 Counsel for the third defendants submits that there was no cause for his clients
to suspect biological methane emanating from the standing water in the tunnel. The
Judge described the River Wyre as a clean river and, furthermore, the defendants knew
that at the Rowton end there was a screening process for any debris in the water. In the
event, as I have earlier observed, biological methane played no part in the disaster. The
position was, therefore, that the third defendants had been lulled into a false sense of

security (a) by the first defendants' operating manual relating to the harmless inflow of
ground water; (b) by the failure of the first defendants to indicate that methane had been
encountered during construction and (c) by the failure of the first defendants to indicate
that there was anything irregular in the use of the wash-out valve as it was employed by
Mr Chippendale.
It is true that with the passage of years some literature came into existence dealing
with methane in ground water, but we were told that the standard text-book for water
authorities, namely the Water Engineers' Manual, does not, in its six volumes, contain
anything about methane in water, whatever other disciplines ought to know about it.
I turn to the judge's findings. He said, at p. 77E:
"But in my judgment the third defendants' conduct was unreasonable in a number of
respects. First, they were apparently ignorant of the existence of a void; secondly, they
failed in consequence to consider what, if any, significance that void might have in terms
of safety; thirdly, they had not apparently absorbed by 1984 a number of messages; there
was the message of the Health and Safety at Work Act 1974, to which Dr Coats referred
as 'looking very hard at safety procedures'; there was the message of the 1978
Broadsheets in providing a yardstick for approaching tunnel atmospheres, which Mr
Robertson, the most knowledgeable of the experts in relation to water authorities, said
were designed to give guidance which you would expect the authority to consider; and
there was the message from K.119, albeit in some details inaccurate, that methane was
generated in carbonaceous shales, was soluble in water and could come out of solution-a message which was particularly relevant to a tunnel through these strata which *377
they knew was admitting groundwater at a likely rate of a million litres a day; fourthly,
they invited the plaintiffs into the valve house when the water level was below the weirs,
indicating the presence, as it ought to have done, of a void, and they discharged the
contents of the tunnel atmosphere, the identity and extent of which were unknown to
them, into the valve house; fifthly, they persisted in so doing and increased the pumping
rate when they knew, because of the delay, that something was wrong.
Mr Playford submits that none of this amounts to negligence because no danger of any
kind was reasonably foreseeable by the third defendants and the damage was too remote.
He accepts that neither the precise source nor the precise mechanism of events needs to
have been foreseen, but he submits that the plaintiffs must show that the type of
methane, namely geological rather than biological, ought to have been foreseen if
liability is to attach.... In my judgment it is therefore sufficient to found liability against
any defendant in this case that he ought reasonably to have foreseen the accumulation of
methane in a quantity potentially dangerous to life or health.
Mr Playford further submits that there was no reason for the third defendants to foresee
the risk of methane in the tunnel. In my judgment, the answer to this is that by 1984 they
ought to have been aware of the danger from tunnel atmospheres in general and methane
from groundwater in particular. As Dr Coats said: "The operator could not discount the
risk of dangerous atmospheres coming into the valve house".
17-29 The position becomes plain in the light of Mr Playford's concession (rightly made
in my view) that the third defendants' duty to the plaintiffs was the same as that to their
employees. If one considers the question: "Is a reasonably prudent employer entitled to
assume that his system of work is safe?", the answer is clearly no. If, instead of
admitting visitors to the valve house and there discharging the contents of the tunnel

atmosphere, the third defendants had decided to carry out an inspection of the partly
dewatered tunnel and had sent their employees in through the hatch in the inspection
branch and the explosion had occurred there, they could in my judgment have had no
possible answer to liability in the face of Advisory Broadsheets 3.21, 4.1 and 4.2, which
they had had in their possession for six years, and their lack of any prescribed system for
safe working. Indeed Mr Playford concedes that if there had been a breach of the
Broadsheet, there would be a prima facie case. In my view, whether or not the valve
house should properly be regarded as a confined space is therefore immaterial.
Significantly, Sir Alan Muir Wood, whose careful report and evidence-in-chief did not
deal with the Broadsheets, said when cross-examined by Mr Brennan: "The cumulative
effect of the broadsheets is that they point to the potential risk of dangerous atmospheres
from tunnels and holes in the ground containing water. Following these broadsheets,
they should have tested the atmosphere, but I do not believe they would have detected
anything". On further questioning, however, he said: "They would probably have
discovered methane if they had entered through the manhole of the *378 access branch;
they would probably not at the end of the pipe in the valve house; they may or may not
in the vent chamber'. Accepting that evidence, it follows in my judgment that testing
ought reasonably to have been carried out by the third defendants at some stage before
pumping into the valve house took place, and such testing, properly carried out, would
probably have revealed a dangerous level of methane.
Accordingly the third defendants, in my judgment, were negligent".
Mr Playford attacks these findings on a number of bases. He submits that the
ignorance of the third defendants as to the existence of a void played no causative part in
what occurred, for his clients had no reason to suspect any dangerous atmosphere from
geological or biological methane; the 1974 Statute imposed no additional duties upon
the third defendants relevant to this case; the broadsheets dealing with tunnels without
natural ventilation were not to be equated with the valve house which had its own
adequate ventilation to the outside atmosphere; the third defendants were entitled to
accept the assurances of the experts, namely the first defendants, as to the harmless
qualities of the ground water entering the tunnel; finally, the suggestion by the Judge that
the increase in the pumping rate "when they knew because of the delay, that something
was wrong", was not supported by any evidence and did not form the subject matter of
any pleaded allegation.
17-30 Mr Playford refers us to a number of passages in the transcript of evidence. Dr
Coats, to whom the judge referred at p. 79E as saying "the operator could not discount
the risk of dangerous atmospheres coming into the valve house", was cross-examined by
Mr Playford as follows:
"Q. There was no reasonably foreseeable risk to injury, to health or injury to life as a
result of the creation of a void, was there? (A) At the time of the design and at the time
of handing over, no.
Q. Or at any other time? (A) These are the only times I am concerned with, I think.
Q. I am sorry? (A) These were the only times I was concerned with, were they not?
Q. I do not know. Is that the only time you were prepared to deal with? (A) At any other
time--it extends right up to the present day.
Q. Let us cut off at 1984; is your answer the same? (A) My answer is the same".

Counsel finally submits that the Judge's references to the evidence of Sir Alan Muir
Wood at page 80D-H of the judgment do not do justice to the witness. At volume 14, p.
920, Sir Alan was asked with reference to Broadsheet 3.21:
"Q. ... It has been suggested that the valve house should be regarded as an extension to
the tunnel, and that this broadsheet should consequently have been applied to the valve
house. You have heard the suggestion being put, I think, on a number of occasions? (A) I
have, yes.
Q. Do you accept that it is valid? (A) No, I do not. I think that one has *379 to involve
this element of foreseeability as to the process that we now know was involved in the
accident, in order to be able to consider precautions of this nature affecting the valve
house".
Later in his evidence Sir Alan was asked:
'Q. So that there is no doubt about it, if the tunnel had been tested for methane, either in
the valve chamber or going in through the manhole of the access branch, or, if it were
possible, at the point where the vent pipe reaches the floor of the valve house, if at any
of those points the test had been carried out before the pumps were switched on, the
probability is that a dangerous level of methane would have been discovered? (A) My
answer, I am afraid, is not quite as simple as that. I think that at the access cover one
would have detected it; in the valve chamber you might, or you might not because until
the gas was being driven through the system it would be diluted to a certain amount by
that backwards and forwards movement of air, and in the valve house itself I am fairly
confident that one would not have detected the level prior to pumping beginning which
would then begin to force the air out through the system. So I'm afraid my answer is not
a very straightforward one".
Had the judge borne those answers in mind (and I repeat he did not have the
advantage of a transcript) it is submitted that he would not have made the adverse
findings he did involving the third defendants' failure to test.
Having considered the totality of the evidence as it directly or indirectedly affected
the third defendants, I have come to the conclusion that Mr Playford's basic submission
that that evidence does not disclose actionable negligence on the part of his clients is
right. In my judgment it is facile to observe that the third defendants did nothing to
prevent the disaster and that their activities in creating a void contributed to it. The fact
of the matter is that on May 23, 1984 the third defendants had no reason to susepct that
the first defendants had failed to fulfill their obligation to supervise the construction of
the link.
The venting design would have lent support to the belief that no dangerous
atmospheres would be encountered in the tunnel. I would therefore acquit the third
defendants of any blame and, as with the second defendants, I would allow their appeal.
It follows that in my judgment the plaintiffs are entitled to recover damages, yet to
be assessed, against the first defendants alone.
BINGHAM L.J.:
17-31 This is first and foremost a case about foreseeability. The trial Judge rightly
recognised this. He directed himself (at p. 3F of his judgment):
"The central issue for me to decide is whether the accumulation of methane in the
tunnel and valve house in a quantity potentially dangerous to life or health ought

reasonably to have been foreseen by all or any of the defendants at the design stage,
during construction of tunnel, or in the four and a *380 half years which elapsed
between completion of the tunnel and the explosion".
In the case of each defendant the judge held that the danger ought to have been
foreseen, and he accordingly found against each defendant. My Lords differ from the
learned judge's conclusion against the second and third defendants and would decide the
appeal in their favour. So would I. But unlike my Lords I differ from the judge's
conclusion against the first defendants also. Although my opinion can in the
circumstances have no effect on the outcome of their appeal, the importance of this case
to all concerned, and the seriousness of the issues canvassed over many weeks at trial
and in this Court, require me to state the grounds of my dissent. I regret that I find it
impossible to do so briefly, because detailed consideration of the evidence is called for.
The role of the Court of Appeal
17-32 Since this appeal is very largely concerned with questions of fact, it is
appropriate to touch on the proper role of this Court in considering such questions. We
were referred to the leading cases, all of high authority, which define the proper role of
appellate courts when deciding appeals against factual conclusions reached by trial
judges. The Court of Appeal has jurisdiction to entertain such appeals in cases such as
this, and the appeal is by way of re-hearing. But the Court of Appeal is a court of review.
It does not approach the resolution of factual issues as if the sheet before it were blank.
It has to be persuaded that the trial judge, who is the primary judge of fact, has plainly
erred. Very rarely, if ever, will the Court be so persuaded if the trial judge's conclusions
rest on his assessment of the credibility and demeanour of witnesses, because this
assessment is one which the judge who sees and hears the witnesses may make, and
judges who only read the transcript and the documents cannot. This advantage enjoyed
by the trial judge must never be overlooked or devalued. But, while fully recognising
and respecting the advantages enjoyed by the trial judge, the Court of Appeal should not
abdicate its duty of review. If all the evidence on a point is one way, good reason needs
to be shown for rejecting that conclusion. If the overwhelming weight of evidence on a
point is to one effect, convincing grounds have to be shown for reaching a contrary
conclusion. Where the trial judge has founded on a witness's oral evidence, the Court
will not uphold the finding if persuaded that it is not justified on a fair construction of
what the witness actually said. The Court will not support the dismissal of a witness's
evidence where this rests on what is shown to be a misunderstanding, or a wrong
impression.
In resolving conflicts of expert evidence, the judge remains the judge; he is not
obliged to accept evidence simply because it comes from an illustrious source; he can
take account of demonstrated partisanship and lack of objectivity. But, save where an
expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a
coherent reasoned opinion expressed by a suitably qualified expert should be the subject
of a coherent reasoned rebuttal, unless it can be discounted for other good reason. The
advantages enjoyed by the trial judge are *381 great indeed, but they do not absolve the
Court of Appeal from weighing, considering and comparing the evidence in the light of
his findings, a task made longer but easier by possession of a verbatim transcript usually
(as here) denied to the trial judge.

17-33 These observations, I hope, fairly reflect the authorities. Lord Justice Russell
has already referred to the well-known speech of Lord Sumner in The Hontest-room
[1927] A.C. 37 at 47. Without wishing to multiply citations unnecessarily, I would refer
also to the speeches of Lord Simon and Lord Thankerton in Watt (or Thomas) v. Thomas
[1947] A.C. 484. Lord Simon (at p. 485-487) said:
"Apart from the classes of case in which the powers of the Court of Appeal are
limited to deciding a question of law (for example, on a case stated or on an appeal
under the County Courts Acts) an appellate court has, of course, jurisdiction to review
the record of the evidence in order to determine whether the conclusion originally
reached upon that evidence should stand; but this jurisdiction has to be exercised with
caution. If there is no evidence to support a particular conclusion (and this is really a
question of law), the appellate court will not hesitate so to decide. But if the evidence as
a whole can reasonably be regarded as justifying the conclusion arrived at at the trial,
and especially if that conclusion has been arrived at on conflicting testimony by a
tribunal which saw and heard the witnesses, the appellate court will bear in mind that it
has not enjoyed this opportunity and that the view of the trial judge as to where
credibility lies is entitled to great weight. This is not to say that the judge of first
instance can be treated as infallible in determining which side is telling the truth or is
refraining from exaggeration. Like other tribunals, he may go wrong on a question of
fact, but it is a cogent circumstance that a judge of first instance, when estimating the
value of verbal testimony, has the advantage (which is denied to courts of appeal) of
having the witnesses before him and observing the manner in which their evidence is
given. What I have just said reproduces in effect the view previously expressed in this
House--for example by Viscount Sankey L.C. in Powell v. Streatham Manor Nursing
Home, and in earlier cases there quoted. Lord Greene M.R. admirably stated the
limitations to be observed in the course of his judgment in Yuill v. Yuill. Lord President
Clyde, in Dunn v. Dunn's Trustees, summarised the scope of appellate correction, with
copious citation of earlier authority, and I agree with him that the true rule is that
expounded by Lord President Inglis in Kinnell v. Peebles, that a court of appeal should
'attach the greatest weight to the opinion of the judge who saw the witnesses and heard
their evidence' and consequently should not disturb a judgment of fact unless they are
satisfied that it is unsound. It not infrequently happens that a preference for A's evidence
over the contrasted evidence of B, is due to inferences from other conclusions reached in
the judge's mind, rather than from an unfavourable view of B's veracity as such: in such
cases it is legitimate for an appellate tribunal to examine the grounds of these other
conclusions and the inferences drawn from them, if the materials admit of this; and if the
appellate tribunal is convinced that these inferences are erroneous, and *382 that the
rejection of B's evidence was due to the error, it will be justified in taking a different
view of the value of B's evidence. I would only add that the decision of an appellate
court whether or not to reverse conclusions of fact reached by the judge at the trial must
naturally be affected by the nature and circumstances of the case under consideration".
Lord Thankerton (with whom Lord Macmillan and Lord Simonds expressly agreed)
said (at pp. 487-488):
"I do not find it necessary to review the many decisions of this House, for it seems to
me that the principle embodied therein is a simple one, and may be stated thus: 1. Where
a question of fact has been tried by a judge without a jury. and there is no question of

misdirection of himself by the judge, an appellate court which is disposed to come to a


different conclusion on the printed evidence, should not do so unless it is satisfied that
any advantage enjoyed by the trial judge by reason of having seen and heard the
witnesses, could not be sufficient to explain or justify the trial judge's conclusion; II. The
appellate court may take the view that, without having seen or heard the witnesses, it is
not in a position to come to any satisfactory conclusion on the printed evidence; III. The
appellate court, either because the reasons given by the trial judge are not satisfactory, or
because it unmistakably so appears from the evidence, may be satisfied that he has not
taken proper advantage of his having seen and heard the witnesses, and the matter will
then become at large for the appellate court. It is obvious that the value and importance
of having seen and heard the witnesses will vary according to the class of case, and, it
may be, the individual case in question".
The Plaintiffs' claim against the first defendants
The standard of care
17-34 In defining the duty of the first defendants the Judge correctly ruled that the
standard of care required was that of reasonably competent engineers specialising in the
design of water transfer systems, including tunnels, applying the standards appropriate at
the time of design, construction and operation (judgment, p. 16F). The law requires of a
professional man that he live up in practice to the standard of the ordinary skilled man
exercising and professing to have his special professional skill. He need not possess the
highest expert skill; it is enough if he exercises the ordinary skill of an ordinary
competent man exercising his particular art. So much is established by Bolam v. Friern
Hospital Management Committee [1957] 1 W.L.R. 582, which has been applied and
approved time without number. "No matter what profession it may be, the common law
does not impose on those who practise it any liability for damage resulting from what in
the result turn out to have been errors of judgment, unless the error was such as no
reasonably well-informed and competent member of that profession could *383 have
made". (Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198 at 220D, per Lord Diplock).
From these general statements it follows that a professional man should command
the corpus of knowledge which forms part of the professional equipment of the ordinary
mamber of his profession. He should not lag behind other ordinarily assiduous and
intelligent members of his profession in knowledges of new advances, discoveries and
developments in his field. He should have such awareness as an ordinarily competent
practitioner would have of the deficiences in his knowledge and the limitations on his
skill. He should be alert to the hazards and risks inherent in any professional task he
undertakes to the extent that other ordinarily competent members of the profession
would be alert. He must bring to any professional task he undertakes no less expertise,
skill and care than other ordinarily competent members of his profession would bring,
but need bring no more. The standard is that of the reasonable average. The law does not
require of a professional man that he be a paragon, combining the qualities of polymath
and prophet.
In deciding whether a professional man has fallen short of the standards observed by
ordinarily skilled and competent members of his profession, it is the standards prevailing
at the time of his acts or omissions which provide the relevant yardstick. He is not, as
the learned Judge in this case correctly observed (at p. 20H of his judgment) to be

judged by the wisdom of hindsight. This of course means that knowledge of an event
which happened later should not be applied when judging acts and omissions which took
place before that event, a very relevant consideration here because knowledge of the
Abbeystead catastrophe has (as the evidence shows) had a profound educational effect.
It is proper and necessary to investigate very carefully the events leading up to this
methane explosion to ascertain what assessment was made of the methane explosion
risk, and why; but it is necessary if the defendants' conduct is to be fairly judged, that the
making of this detailed retrospective assessment should not of itself have the effect of
magnifying the significance of the methane risk as it appeared or should reasonably have
appeared to ordinarily competent practical men with a job to do at the time.
I venture to state these familiar propositions because, against the background of a
calamity such as this, it is easy and tempting to impose too high a standard in order to
see that the innocent victims of the disaster are compensated by the defendants' insurers.
Many would wish that the right to recovery in such cases did not depend on proof of
negligence. But so long as it does, defendants are not to be held negligent unless they are
in truth shown to have fallen short of the standards I have mentioned.
The outline facts
17-35 The essential background facts giving rise to this explosion are summarised
with great economy and clarity in the first defendants' skeleton argument. I cannot hope
to improve on that summary, from which I quote the following paragraphs: *384
"The First Defendants are the consulting engineers who designed the aqueduct. The
Second Defendants are the tunnelling contractors who built it under the supervision of
the First Defendants. The Third Defendants are the water authority for whom the
aqueduct was constructed and who have operated it since it was handed over to them in
late 1979.
The aqueduct was intended ultimately to form part of a larger water transfer scheme
which would have conveyed water from the River Lune to the reservoir near
Manchester. Provision had to be included in the design for such future extension.
Such provisions necessitated:
(a) that the pipeline should be able to operate under a pressure head of water of 70
metres;
(b) that the valve house at Abbeystead should be designed as a break pressure
chamber;
(c) that the water main (discharge main) should terminate in a deadend to which a
future extension of the main could be connected.
The aqueduct consists of two tunnels and a pipeline. Water runs along the first tunnel
('the intake tunnel') from the intake on the River Lune to a nearby pumping station;
water is lifted at the pumping station and pumped 'up-hill' through a pipeline ('the
Quernmore pipeline') from the pumping station to the portal of the second tunnel at
Rowton. The second tunnel ('the Wyresdale tunnel') with which this case is concerned,
runs from Rowton to a valve house at Abbeystead. The water is discharged from the
valve house into the River Wyre.
The River Wyre, like the River Lune, is a grade 1 fishing river and in order to protect
the fish it was necessary to arrange for the discharge into the River Wyre to be from both
sides of the river. Further the valve house is situated in an area of outstanding natural

beauty so that in designing it much consideration had to be given to amenity questions


and to ensuring that it would be protected from vandalism and/or terrorist attack.
The tunnel leading to the valve house is vented by air valves in a vent chamber
situated at its highest point which is on an access branch leading to the discharge main.
(See Drawings 3 & 6). For amenity and security reasons the atmosphere of the vent
chamber was designed to be transferred by a 800 mm dia. pipe which discharged at floor
level in the 'wet' room of the valve house (See Drawing 3) rather than by a stack or open
gulley leading directly to the open air.
The valve house which is in part below ground is divided into two rooms which are
separated from each other by double doors. The wet room was ventilated by an opening
54" x 30". The dry room, which contains certain instruments, was ventilated by two
smaller apertures and an electric fan. Access to it from the outside was through
substantial double security doors.
During the years 1980-1984 the Third Defendants operated the scheme. Apparently,
it was found that when the washout valve at Abbeystead *385 (marked 'Discharge Main'
on drawing No. 4) was opened to flush out sediment and stale water from the dead end,
the river Wyre was polluted in an unacceptable manner. In order to overcome this
problem the Third Defendants decided to leave the washout valve cracked open so that
there would be a constant flow of water and the water in the dead end would be kept
sweet. The Third Defendants did not consult the First Defendants about the problem or
as to their manner of remedying it.
17-36 The explosion occurred in the following way:
(i) The Spring of 1984 was a period of drought and pumping had not taken place
from the Lune to the Wyre for several weeks before the explosion. Because the open
washout valve allowed water to drain from the tunnel, despite a continuing inflow of
ground water through the concrete lining of the tunnel, a void of approximately 1599 m3
formed in the tunnel without the Third Defendants' knowledge and remained unfilled.
(ii) Because the inhabitants of the village of St Michael's on Wyre feared that the
transfer of water from the Lune to the Wyre might cause flooding in their village, the
Third Defendants invited a party from the village to visit the valve house at Abbeystead
so that the operation of the scheme could be explained to them.
(iii) When the party of visitors reached the valve house some 36 visitors were invited
inside accompanied by eight Water Authority staff. The water being then below the level
of the weir and now flowing (compare drawings 6 and 7 with drawing 8), Mr Lacey, an
engineer employed by the Third Defendants, telephoned to Mr Chippendale at the
pumping station on the river Lune to have the pumps switched on.
(iv) Unknown to and unforseen by anyone methane gas had entered the void in the
tunnel partly in gaseous form and partly dissolved in the ground water from which it was
released into the void, so that a potentially explosive mixture of gas and air had formed
in the atmosphere in the void.
(v) The action of pumping water caused the atmosphere in the void in the tunnel to
be discharged into the vent chamber and thence into the wet room of the valve house.
The air in the valve house came to have a methane content of not less than 5 % (the
lower explosive limit) and some fifteen to twenty minutes after the party had entered it
was ignited. The cause of ignition was probably a match or cigarette lighter lit by one of
of the persons in the valve house".

It is only necessary to add one fact, but it is in my judgment a fact of crucial


importance: the methane which ignited with such disastrous results in May 1984 was
methane which had leaked into the tunnel from an underground reservoir of gas.
Methane
1. Methane is an odourless, colourless gas, lighter than air, and always *386 present
(to a minute extent) in the atmosphere. When mixed with air so as to amount to about 5
per cent to about 15 per cent of the atmosphere it forms an explosive and flammable
mixture.
2. Methane may be created biologically by the decomposition of vegetable matter. I
shall call this "biological methane". Biological methane is often so created uuder water
in marshy districts, giving rise to "marsh gas" as the familiar name of methane so
created. But biological methane may be found in sewers or anywhere else where
vegetable matter decomposes in anaerobic conditions.
3. In the Coal Measures, by which is meant the richly carbonaceous strata sometimes
found with strata deposited in the Carboniferous Era, methane is commonly released
when coal seams are cut in the course of excavation or tunnelling. I shall call this "Coal
Measure methane". Coal measure methane is released either as a result of relieving
stress in the coal itself or as a result of releasing pockets or lenses of gas. Methane so
released is a major constituent in the explosive mixture known as "fire damp", notorious
as the cause of many coal-mining disasters and an ever-present hazard in coal-mining
operations.
4. When tunnelling or excavating through mudstones, siltstones or shales of the
Upper Carboniferous strata outside the Coal Measures methane locked in the rocks may
be released as a result of the stress in the rocks being relieved when they are broken. I
shall call this "stress-relief methane". Stress-relief methane has two characteristics
important for present purposes. First, it is transient, appearing when the stress is relieved
and dying away over a period of days or weeks rather than months or years. Secondly, it
will be released only by rocks fractured in the course of tunnelling or excavation of
rocks in the immediate vicinity; in the case of a tunnel, rocks within one or two
diameters of the tunnel may be affected.
5. Below the surface of the earth there may sometimes be found reservoirs of
methane of greater or smaller size. The conditions necessary for the creation of such
reservoirs require that they should be, or have been, well below the surface of the earth
and that they should have been present for a period of geological time, that is tens or
more probably hundreds of millions of years. For such a reservoir to exist there must
first of all be source rocks such as shale, deep down, in or from which the gas is formed.
There must then be a reservoir rock, such as a porous limestone or sandstone, in which
the gas can collect. There must then be a cap rock, such as an impermeable shale, to seal
the gas in the reservoir; otherwise, over the periods of geological time involved, the gas
will leak upwards towards the surface and dissipate in the atmosphere. If, therefore,
there is no impermeable cap rock, the gas will have leaked and dissipated long ago; but
if, throughout geological time, the gas has remained locked in its reservoir by an
impermeable cap rock, it will stay there unless the cap is breached, penetrated or
otherwise disrupted.

*387 I do not think, on the evidence in this case, that these statements are in any way
contentious, but it will be necessary to consider certain aspects of them in a little detail
later.
A. The Design Stage
(1) The first defendants' assessment at design stage
17-38 When designing this transfer system, the first defendants foresaw no risk that
biological methane would enter the Rowton-Abbeystead tunnel or the Abbeystead valve
house, or be generated within either. They foresaw a remote risk that transient stressrelief methane might arise during the driving of the tunnel and decided that this risk
should be met by careful monitoring of the tunnel during construction. They foresaw no
risk that methane might leak from an underground reservoir into the tunnel during or
after construction.
As I read his judgment, the learned judge plainly found the first defendants guilty of
a want of care at the design stage. At p. 48E of the judgment he said:
"The quality of the First Defendants' conduct at the design stage can be put in a
sentence: they failed to exercise reasonable care in assessing the risk of encountering
methane, the presence of which in significant, though not necessarily dangerous,
quantities was reasonably foreseeable as a matter of probability. This conduct, in itself,
did not cause the disaster, but it set the scene for what followed and it raised a questionmark over the wisdom of ventilating into the valve house, whereby that aspect of design
needed to be reviewed in the light of experience during construction".
Then, dealing with apportionment (judgment, p. 82G), the Judge added:
"The First Defendants showed a want of care at the design stage and were negligent
in failure to reconsider the design in the light of what was or ought to have been
discovered during construction ..."
My own conclusion is that the first defendants' assessment at the design stage is not
only one which ordinarily competent engineers in their position might have made, but
one which such engineers at that stage very probably would have done. I shall first of all
give my reasons for reaching that conclusion, and then review the grounds relied on by
the Judge for reaching his conclusion.
(2) Biological methane
17-39 First, biological methane. The Lune flows brisk and unpolluted from its source
in the Howgill Fells. At the Lune intake the water taken from the river is screened to
exclude debris and fish. At the Lune pumping station the water passes through two
settling tanks so that any debris and silt may settled out of the water. Water from the
Lune has never been associated with the production of *388 methane in any way (Orr T
13/86F). The evidence of Mr Robertson was clear (J/R/14):
"... The possibility of any significant amount of biologically produced methane did
not exist because of the quality of the water in the Lune, the facilities provided at the
Lune to remove organic material and the facilities and instructions provided to avoid the
development of stagnant conditions in the works. In the event there is no evidence of the
significant production of biological methane".

Sir Alan Muir Wood (J/MW/16; T14/91B) expressed the view that there was no
foreseeable possibility of biological methane constituting a danger in this system.
Neither opinion was challenged by the plaintiffs, and when the first defendants' Counsel
described it as "common ground that we are not dealing with biological methane"
(T10/138D) no one demurred. The judgment of those who investigated after the
explosion was that the methane in the tunnel was almost entirely of ancient geological
and not of modern biological origin. Mr Cole (T1/146); Dr Artingstall (T7/4); Mr
Shillito (J/S/5, T10/148). The insignificant traces of biological methane which were
found probably reached the tunnel as a result of surface water draining into the tunnel
from above (Knill J/K/12, 18). The Judge held, rightly and inevitably, that "the Lune was
a clean river which was unlikely to produce and did not in fact produce biological
methane" (judgment, page 76G). The first defendants are not to be criticised for failing
to foresee and guard against a very unlikely risk which did not in the event give rise to
any danger at all.
(3) The first defendants' consideration of stress relief methane
17-40 It appears from the evidence that the first defendants first considered stressrelief methane in connection with this project in 1974. Mr Arah had become a partner in
the first defendants, had opened an office in Chester and had (in August) taken over
from Mr Hammond as the partner in charge of this project. Probably in the autumn
(T9/64F) Mr Arah discussed with Mr Collins, the designer of the system, and Mr Lee,
then the project engineer, whether contractors should, in their tenders, provide for flameproof equipment. Mr Arah was told that there was a remote possibility of finding local
inclusions of more richly carbonaceous material in the general Carboniferous series, and
that this might lead to small transient inflows of methane during construction, but that it
did not justify flameproofing the equipment (T9/35). The specification when issued did
not require tenderers to provide for flame-proof equipment. For some reason, perhaps
because it was raised by a tenderer (T9/40A), the question arose again. On July 10, 1975
Mr Arah spoke to an engineer in the first defendants' London office and, he thought,
asked who was currently involved with work on methane within the firm. He was given
the name of his partner, a Mr Carlyle, to whom he spoke. They discussed two tunnels,
one of which (I think) was and the other of which was expected to be partly in the Coal
Measures (T9/40D-41F). Following this conversation, an additional instruction was
issued to ten *389 derers asking them to submit a list of any plant and equipment which
they proposed to use underground which was not flame-proofed (D(1)2(1); T(/68). On
July 14, Mr Arah telephoned Mr Eastaff, a very experienced geologist employed by the
first defendants, to give him an opportunity to comment and object. Mr Arah's
contemporary diary note read (D 147(2)):
"David Eastaff explained flameproof plant situation on LCU tunnel. Agrees very
unlikely to find methane--must monitor--no need to specify flameproof plant".
There is, I think, no reason to doubt Mr Eastaff's recollection of this conversation
(T5/82F), which the Judge accepted (judgment, p. 35E):
"Mr Arah explained to me the situation with relation to the contract and whether or
not flameproofing equipment was required. That is about as much as I can remember.
Then he put to me the question about methane--whether it was a possibility, probability-what was the degree of probability. I don't think it was put in that precise way, but the

question came across: What was the likelihood of methane in the tunnel? I reflected on
this at the time and, using the knowledge that I had because I had recently been involved
with the contract and the tender documents, I said that I thought that the possibility of
methane was remote. I can also recall--although this is not something which one takes
lightly, it is a most serious matter--after the "phone conversation... my recollection is that
I thought carefully on this matter, checked the information that I had, and came to the
conclusion that this was a reasonable decision at the time. I should go back to the
telephone conversation now because I also remember saying that nevertheless
monitoring for methane should be carried out".
In their first tender dated July 16, 1975, the second defendants did not respond to the
additional instruction concerning flameproofing, but on August 1, 1975 they wrote to the
first defendants saying (in effect) that none of the equipment which they proposed to use
underground would be flame-proofed. The contract went ahead on that basis.
(4) Experience of stress-relief methane
17-41 To place the first defendants' assessment of the risk of stress-relief methane in
context it is relevant to consider first the practical experience of this phenomenon
described by the engineers and geologists who gave evidence at the trial. If Coal
Measure methane is put on one side as something obviously different, the evidence
suggested that experience of stress-relief methane in practice was minimal. Between
them, these witnesses represented a large body of experience. Mr Hammond had been a
working engineer since 1935, and had been involved in three of the four largest water
transfer schemes ever built in this country. He had encountered biological methane, but
had no personal experience of the ingress of methane into a tunnel during his career
(T6/54E).
*390 Mr Arah, a Cambridge engineering graduate, had been project engineer for
works on the Withens Clough reservoir and tunnel in the Pennines, and had no inkling of
gas coming in (T9/20).
Mr Collins' experience began in 1949 on one of the Haweswater Aqueduct tunnels in
Lancashire: there had then been no testing for and no recognised effect from methane
(T7/8E). Mr Boyd, another Cambridge graduate, had been concerned with the Cross
Hands tunnel, which was (I think) driven through the Coal Measures; he understood that
there had been testing for methane but that none had been found (T7/131B). Mr Eastaff,
a geologist with high academic qualifications and (by 1975) 17 years' practical
experience, had not encountered methane in any of the tunnels he had had to deal with
(T5/61E).
The evidence of the civil engineering experts was to similar effect. Dr Coats, whose
vast experience included the Kielder tunnels, had had no experience of detecting
methane within tunnels (T10/108H), even the Kielder tunnels where there had been
intensive monitoring (J/C/6; T10/61H). Mr Tough, commended by the Judge as a
thoroughly straight-forward, practical man (judgment, page 50H), had, never during his
professional career, come across methane as a problem on sites (T13/14B). He believed
that most tunnellers would go through the whole of their careers and not experience
methane (T13/18A). He had experienced methane working in the Scottish oil shales, but
knew of no other tunnel in his experience where methane had been found (T13/24E). Mr
Mackenzie's experience had been that, despite thousands of hours of continuous

monitoring, the occasions on which he had met even pockets of methane were very
limited indeed (T13/49H) and his experience had been of only a transient amount of
methane being encountered, and on very infrequent occasions (T13/62C).
Mr Haswell, the very distinguished and experienced civil engineer called by the
plaintiffs, had been involved with the cable tunnel under the Severn and Wye estuaries
which was designed from about September 1968 and completed by 1973. There had
been no problem with gas (T4/37D), and there had been no testing at all (T4/38F). The
thought of gas never entered his mind in those days (T4/135F). He had also been
involved with the Midsomer Norton tunnel, for which the specification was dated 1976
(Z/72; (T4/41H): there had been no methane problem so far as he knew, and he could not
recall if there had been any testing (T4/39H). Mr Haswell had been involved with
numerous tunnelling works all over the world, but had experienced no trouble with
methane gas until this tunnel (T4/40A).
The plaintiffs called two expert mining engineers. The first was Mr Edwards, who
joined the National Coal Board as a graduate mining engineer in 1968 and became a
lecturer in mining engineering at Nottingham University in 1972. No doubt he
encountered Coal Measure methane during his service with the Board. He had, however,
as he said and the Judge found (T1/170C; judgment, p. 39C), no experience of the water
industry and had not had much contact with water industry engineers (T1/170D). His
expert opinion was based entirely on a reading of literature which he had gained from
various sources (T1/170E).
The second was Dr Whittaker, who worked for the National Coal Board from 19511960, before obtaining graduate and post-graduate qualifications in mining engineering.
He had held academic appointments in that discipline since 1964, *391 becoming
Reader at Nottingham University in 1981. No doubt he also had encountered methane in
the Coal Measures. His experience of tunnelling outside the Coal Measures was limited:
precautions had been taken against methane but it had not been found to be a hazard.
(5) The first defendants' foresight of stress-relief methane
17-42 The paucity of experience of stress-relief methane may well be explained in
part by the lack of testing until the mid-1970s, although this does not of itself explain the
virtual absence of previous incidents in this country. But of course no professional man
can properly confine his attention to hazards he has personally encountered, and there
are references in the literature to the release of small quantities of methane from freshlycut rock even outside the Coal Measures. While, as one would expect, there was some
variation of approach and emphasis between different witnesses, the evidence as a whole
compels the conclusion that the first defendants exercised a competent professional
judgment in accordance with current standards in foreseeing a possible, but remote, risk
of stress-relief methane during the construction of this tunnel.
Mr Hammond did not address his mind to the possibility of methane in this tunnel as
even a theoretical possibility (T6/25G, 71B, 77E). His view was that there was a risk in
the Coal Measures (T6/79F), but not in the absence of coal (T6/84F). Such a view is not
insignificant in a man of his experience, but the judgment of others in his firm was more
cautious.

Mr Arah, who succeeded him as a partner in charge, thought methane very unlikely
(T9/69E) but not impossible. Mr Collins, who designed the system, thought there could
well be some insignificant, transitory stress-relief methane:
"So, there is no doubt in the carbonaceous/Carboniferous rock that you may get in
some lengths some methane coming into the tunnell. Small amounts, but insignificant.
In other sections you won't get any at all... a certain amount of methane will come off
from the rock immediately around the tunnel. Once it has gone, that is the end of it"
(T7/14D,G).
Mr Dunn foresaw no risk of stress-relief methane (T8/112D), 113G, 117A, 121D).
Mr Boyd concluded that the possibility of encountering methane in other than very, very
small quantities was remote (T7/129). He would have expected any gas to come in at the
face of the tunnel where rock was first broken into which had not been broken into
before (T8/25E). Mr Eastaff thought that lenses or layers of carbonaceous material
within the Carboniferous strata made the appearance of methane not likely but a remote
possibility when stress was relieved (T5/60F, H, 61C, D, 83H). He envisaged the
possibility of an occasional random unknown seam (T5/133G). Mr Stacey, the second
defendants' site agent (a qualified engineer), considered the risk "minimal, insofar as it
was almost entirely discounted" (T12/143F).
There was much expert evidence to similar effect. Professor Knill considered that a
firm such as the first defendants should have appreciated that there was a slight
possibility of the occurrence of methane in the Millstone Grit arriving *392 from a
stress-relief process (T11/112C): it might be encountered throughout the driving of the
tunnel, "but particularly being released close to the face of the tunnel so that for some
weeks after the breakthrough there might be a small amount of methane, but certainly
after months, after a long time, effectively no methane would be present" (T11/112F).
He accepted stress-relief methane during construction as a possibility (T12/27B). Dr
Coats' understanding was that if there is rock with methane in it, that methane will be
given off during the driving process, but the rate of release will wither and disappear
with the result that at the end of the construction period there is invariably no methane
present (T10/108F,G). The risk is usually met by ventilation (T10/114E). There might be
stress-relief methane as the geological system relaxed and adjusted itself, but it would
not be significant (T10/129F) and he would not have expected stress-relief methane to
be given off after 18 months (T10/130C). The risk of stress-relief methane in a tunnel
below the Coal Measures, as this one was, he judged to be very slight (T10/135C). Mr
Tough thought the nature of the ground here would give rise to a small occurrence of
methane (T13/26F) but would not have expected a contractor to test for it under normal
circumstances (T13/27B). There could be some residual methane left after the works,
but he could not say how long it would last (T13/44B). Sir Alan Muir Wood described
the presence of some methane in the tunnel, generated from the shale bands penetrated
by the tunnel, as a virtual certainty, but in concentrations too low for any concern
(J/MW/6,7,8). He thought such methane entry was unlikely to cause concern given the
amount of ventilation there is in driving a tunnel like this (T14/127A) and later said that
there was a possibility of encountering stress-relief methane in quantities too small to be
of any concern (T14/126G, 127A, 138F). Mr Haswell expressed a general apprehension
of methane as a hazard of great danger requiring stringent precautions, but he described
himself as "not up in methane (T4/65C), did not know the difference between stress-

relief methane and leaking reservoir methane (T4/65 C, D), and was unable to discuss
the behaviour of stress-relief methane (T4/138E).
On all the evidence this tunnel was not, in the words of the 1976 draft Code on
Safety in Tunnelling, "being excavated through ground in which there is reason to
suspect the presence of methane". There was reason not to suspect it, but to recognise
the remote possibility.
(6) Experience of leaking reservoir methane
17-43 The first defendants foresaw no possibility of methane leaking into this tunnel
from an underground reservoir. Subject to one possible exception (the Orange-Fish
tunnel in South Africa, which I consider below) no witness had knowledge or experience
of such an event. Thus, for example, Mr Eastaff in 1975 knew of no such case (T5/84C).
He knew of no situation in the U.K. where that had occurred and believed the Wyresdale
experience to be unique in this country (T5/98A). Mr Dunn was in the same position
(T9/13E). Mr Wheeler had never heard or known of a tunnel driven through an anticline
where a constant inflow of methane had been experienced (T6/58). Mr Tough had never
in his experience come across a continuing flow of methane from a deep source
(T13/45A). Pro *393 fessor Knill had never in his experience or reading met the
suggestion that gas reservoirs could be opened up as a result of the driving of tunnels
(T11/102C), nor the suggestion that a tunnel would have affected conditions deep below
(T12/3OH).
The Orange-Fish tunnel is in South Africa. During its construction methane seeped
into the tunnel through contact fissures alongside dolerite dykes from the underlying
Ecca formations which are coal-bearing in many parts of South Africa. It entered at the
rate of 30 litres per second, and a fire burned for about nine months. Mr Eastaff had
visited the area in 1970-71, and understood there was oil in the vicinity. He associated
the methane with the Coal Measures and considered the geology quite unlike that at
Wyresdale (T5/85 B, E), as Sir Alan Muir Wood agreed (T14/109F). Mr Arah was aware
of the incident in general terms by the end of 1975, but believed that it had little
application to Wyresdale (T9/38E). Sir Alan Muir Wood was concerned with the mishap
and referred to it in a paper published in 1975. He suggested that the incident might
perhaps have alerted an engineer to a risk of methane arising from greater depth
(T14/108E). This was not, however, a case advanced by the plaintiffs or supported by
any other witness.
(7) The first defendants' foresight of leaking reservoir methane
17-44 The thought of researching the possibility of deep reservoirs did not occur to
Mr Hammond in 1972-4: "We now learn that we had gas in many parts of the country
and many parts of the world, which was never thought of in those days" (T6/27H). Mr
Arah did not consider at all in 1975 the possibility that there might at some distance
from the tunnel be a reservoir and that methane might travel through the ground from
the reservoir into the tunnel because "We were tunnelling at a relatively shallow level. I
think you are putting me back into "75 and my knowledge of gasfield engineering would
have been much more rudimentary than it has become since the event, but I think I
would have recognised that there might at depth have been a reservoir containing

methane, but I don't think I could have, at that time, have expected that we would be
tunnelling in such a way as to make contact with it, or release the gas from the reservoir"
(T9/37G). He did not think that he had in late 1975 considered the possibility that there
might be a reservoir at depth below the tunnel (T9/39C), and still thought there was
nothing his firm should have foreseen between between 1972 and 1979 which would
have averted the disaster (T9/62G). The possibility of a reservoir and a constant ingress
of methane into the tunnel simply never occurred to Mr Collins at all (T7/15G).
Mr Dunn foresaw no risk. It did not occur to Mr Boyd that there might be methane in
the anticline penetrated by this tunnel because "I was aware of the general nature of oil
fields and that gas is associated with oil fields, but it is far, very far, from a fact that
every anticline or fold contains such oil and possible gas" (T7/148F). Mr Eastaff did not
in 1975 think it could be the case that there was some possibility that a tunnel driven
through these strata could be subject to a constant inflow of methane (5/84B). He did not
think the possibility should have been foreseen (T5/98A). Mr Wheeler was a young
geologist who came to *394 this project in 1976, having achieved high academic
honours and fresh from post-graduate research. What he saw on his visits did not make
him think of a gas problem (T5/141C). The possibility of methane did not occur to him
(T5/146G). He was not aware that rocks in the Bowland Forest area were considered as
a gas or oil source or oil reserve area for exploitation (T5/148). It did not occur to him in
1976 or 1977 that the possibility of a reservoir leaking from below existed (T5/156B).
He did not think that if he had thought about the matter before the explosion he could
have advanced the hypotheses which he did after (T5/158E).
Professor Knill believed that a competent firm of consulting engineers would
consider the possibility of a gas reservoir below the tunnel "but almost instantly reject it
as being a very--a very unlikely event" (T11/112G). "They should have concluded that
there was only the most remotest of possibilities, and indeed it was highly unlikely that
any such eventuality could occur. I think if I had put such a proposition to consulting
engineers that I had to look for (it) they would simply laugh at me" (T11/113B). Dr
Coats regarded it as very surprising that methane could come into a tunnel five years
after the rock, from which he would have assumed it was coming, had been disturbed
(T10/62D). He would not have thought about the possibility at all (T10/63B), and would
not have foreseen the continuation of a flow of methane for five years at any time
between design and May 1984 (T10/127H, 128D). He would not have thought there
were reservoirs under English soil (T10/62G). He regarded a reservoir at a depth and a
route to the tunnel as unforeseeable (T10/63C) and this evidence the Judge expressly
accepted (judgment, pages 41B, 42B).
Mr Robertson regarded the risk of geologically produced methane as unforeseeable
(J/R/14, 21), and in oral evidence repeated as his primary concusion that the danger was
unforeseeable (T10/33B). Sir Alan Muir Wood directed his evidence primarily to what
was foreseeable by the third defendants. He thought it quite unreasonable to expect the
third defendants to foresee this particular danger (T14/83C). He did not suggest that any
of the hypotheses advanced to explain this disaster might reasonably have been foreseen,
although he thought there was aspects which might put an engineer on the alert
(T14/109H). He would not himself have foreseen this hazard initially (T14/11 1F). In his
view "It is quite clear that this particular accident at Abbeystead did alert people to the
appreciation that, however improbable a circumstance might be concerning methane, a

finite possibility existed, and I do not think that is the way that people approached the
risk before that time" (T14/155F).
(8) The solubility of methane in water
17-45 The judge concluded (judgment, p. 45C), that by 1975 the first defendants
ought reasonably to have known:
1. that methane was soluble in and could be released from water, though they ought
not to have known the precise circumstances, in relation to temperature and pressure, of
its solution and release;
*395 2. that either as a gas or in solution in groundwater, it could travel upwards and
sideways.
The first defendants did not challenge these findings, although suggesting that
reasonably competent practical engineers, if possessing this knowledge theoretically,
would not appreciate its practical application.
There was material to support the Judge's finding. Mr Edwards testified that methane
was readily soluble in water (T1/153C) and both he and Dr Whittaker placed before the
Court much learned literature in which the solubility of methane is discussed. Sir Alan
Muir Wood, in his expert opinion, wrote (J/MW/8):
"In general terms it may be stated that experienced tunnelling engineers would be
expected to know that many gases are soluble in water, maximum concentration
depending upon external (partial) gas pressure, temperature, pH and other factors.
Knowledge could be expected to be qualitative rather than quantitative".
A draft British Standard Code of Practice on Safety in Tunnelling, published in 1976,
stated (K409(7) with reference to methane: "The gas can travel laterally for considerable
distances along joints and fissures or through porous rock and is readily soluble in water
by which it may be transported". (my emphasis).
On the evidence as a whole, however, the first defendants' reservation is fully
justified.
Mr Hammond knew of methane as a gas but not a soluble gas (6/26C). Asked if he
knew that methane was soluble in water, Mr Arah answered (T9/36B): "I am not sure I
still know it is really soluble in water... my understanding is that methane is soluble to a
very limited extent". He thought that in 1975 he believed methane was to some extent
soluble in water, remembering from schooldays that gases are soluble under pressure
(T9/36D). Mr Collins was aware at the time that methane could be dissolved in water,
but not being a professional chemist could not give chapter and verse on the extent of
the solubility (T7/50A). Mr Boyd (T9/129G) "... was aware that methane was soluble in
water to a limited extent and also that the likelihood of any such occurrence was
associated with very large quantitites of water and very considerable pressure. But I did
not associate methane in ground-water with the sort of characteristics of the groundwater bearing rocks that we had which were, as far as we were aware, aquifers in the
sandstone strata that recharge in the surface in an area where the rock was known to be
fractured".
Mr Eastaff was not, in 1975, aware that methane was soluble in water (T5/83D). Nor
was Mr Wheeler (T5/166E).

The evidence of the independent witnesses on this point is significant. The Judge
found (judgment, page 34D), that "Mr Thompson, the senior Inspector of Mines and
Quarries in the area in 1984, with 35 years' practical experience of mining, knew from
his schoolday chemistry lessons that methane was soluble in water". The transcript
shows (T7/113D), that the course of evidence was as follows: *396
"Q. At the time of the explosion when you came to the site, what was your
knowledge as to the solubility or insolubility of methane? (A) I just remembered that it
was soluble from my schooldays' chemistry. I had no technical knowledge other than
that.
17-46 Q. When you say you were aware it was soluble from your schooldays'
chemistry, and you have got no technical knowledge apart from that, are you saying you
knew it was soluble or not the extent of it, or what? (A) I know that gases are soluble in
water but I had not met before the problem of methane, associated in any mining
environment, coming out of water".
Asked to elaborate, he said that in the mining environment he had not considered
before that water which methane had passed through was itself a hazard (T7/113F). In
June 1984 he wrote a letter enclosing some learned papers which he had obtained from
the National Coal Board; he did not, he said (T7/114E), know before reading the papers
that methane could be emitted from the dissolved state in water, and he said in the letter
that having discussed it "with colleagues in the Inspectorate and with the NCB--they
were unaware of this potential hazard in the mining environment". (T7/114F). "I would
say that at the time of the Abbeystead disaster I wasn't particularly aware of the fact that
methane was so readily soluble in water that it may be transported by it". (T7/116A). His
understanding was not very different from that of Mr Cole, a qualified mining engineer,
who as the District Inspector of Mines and Quarries, was early on the scene: "I had
learnt that there was a suggestion that methane was dissolved in water, and I had been
sceptical about that up to that time ..." (1/138C). He later added: "Whilst I am aware that
methane is slightly soluble in water, but it has never been considered in the coal mining
context to be of significance.... It has been quite a revelation to me to learn that it came
in as dissolved methane" (T1/148X, 149A).
The expert evidence presents a similar picture. Mr Williamson, the expert geologist
called by the plaintiffs, was unaware at the time of the accident "except to a very small
extent" that methane might be dissolved in groundwater (T1/64B). He discussed the
matter with engineers at the Health and Safety Executive and could not find one who
was aware of the fact (T1/64E).
Mr Haswell wrote (G/H/6: "While methane is not readily soluble in water at
atmospheric pressure, there is an increased solubility with increasing pressure". In
saying this, he echoed a well-known paper on the Furnas hydro-electric scheme in
Brazil, in which the authors wrote (H1/226, 245): "Methane is not readily soluble in
water at atmospheric pressure but at pressure corresponding to the bottom levels in the
reservoir a given volume of water will dissolve 0.3 volumes of methane". Mr Robertson
knew nothing of the solubility of methane in water 10/223, 38G). Dr Coats gave an
answer which, given his undoubted eminence and experience, must be regarded as
significant (T10/60B):
"... I am not a chemist. My earliest recollection of methane gas would be the gas
arising from marshes which bubbles up through till it gets to atmosphere and escapes.

That left an impression in my mind that methane was insoluble. If it was soluble it
would have not, in fact, bubbled to the surface, *397 it would have gone into solution
before it got there. My 12-volume encyclopaedia which I bought when the children were
young says methane is almost insoluble. That was dated 1960--odd, I think. So that my
feeling is that it is very difficult to put it into solution, but it does go into solution under
high pressure. In summary, I would have thought that it is difficult to put methane into
solution, but it comes out of solution very easily".
17-47 Mr Shillito, a chemical engineer, described methane as "only slightly soluble
in water" (J/S/18), and explained in evidence (T10/161A) that Henry's law:
"... very simply states that the amount of any gas that will dissolve into a solution, in
this case water, depends on the concentration or pressure of the gas above the sample of
water. The higher the concentration of the gas in the air above the water, the more will
dissolve. This law can explain the common finding that methane is insoluble because
very few people deal in high concentrations of methane. Chemical engineers and gas
engineers do so quite frequently, and so know of the solubility of gases of this type.
Other forms of engineers who do not come across methane in high concentrations would
not normally experience significant solubility".
Mr Tough was not acquainted with the solubility of methane: his background
suggested to him that at normal atmosphere and temperature it was not very soluble at
all (T13/28E). Mr MacKenzie was of opinion that the risk of methane entering workings
dissolved in groundwater was not widely known in the civil engineering tunnelling
industry at the time of the construction of the Wyresdale tunnel (J/M/11). Sir Alan Muir
Wood agreed that engineers would not necessarily know what the effect of the solubility
of methane in water would be in practice (T14/131G). He did not think it necessarily
followed that the third defendants through their qualified staff would be aware of the
solubility, but thought it reasonable to suppose that anybody who had dealings with the
conjunction of methane and water would be aware (T14/141G, H).
The literature was not all one way. Degremont's Water Treatment Handbook,
accepted as a basic book for the water industry (T2/84C), contained a table of solubility
of gases without making any reference to methane (T2/85G). The enlarged Manual of
British Water Engineering Practice, also accepted as a basic book for the water industry
(T2/84C), made no reference to any problem of methane dissolved in groundwater. The
British Standard, when issued in its final form in 1982, omitted the words I have
underlined above, presumably because they were felt to be either inaccurate or
misleadingly over-simplified, or unnecessary.
This is not a crucial issue in the case, since it became clear (contrary to the initial
views formed early in the investigation of the disaster) that the methane which caused
the explosion had very largely entered the tunnel in gaseous form, that entering in water
being not enough of itself to cause an explosion. It is also plain that the first defendants
at no time foresaw an upsurge of methane from a leaking reservoir below the tunnel,
whether in gaseous form or in solution in water. Had they done so, they could no doubt
have acquainted themselves with *398 the learning on this subject either directly or by
consulting an expert. They were not alerted to the need. What does, however, emerge, as
I think conclusively on a fair reading of this evidence, is that a reasonably competent
engineer in the position of the first defendants between 1972 and 1984, even if
theoretically aware of the solubility of methane in water, would have had at best a hazy

and incomplete understanding of how the gas behaved, would be most unlikely to have
encountered the problem in practice and would not have regarded this theoretical
knowledge as having any practical application to this project.
(9) The judge's finding against the first defendants' design
17-48 In concluding that the first defendants had shown a want of care at the design
stage, the Judge principally relied on four matters: (a) the geology of the area; (b) the
literature on methane occurrence and solubility; (c) the Whit Moor borehole; and (d) the
necessity for testing during construction as judged before construction started.
These matters require careful consideration.
(a) The geology of the area
17-49 At pages 45-46 of his judgment, the Judge listed these, among other things,
which by 1975 the first defendants ought reasonably to have known:
"4. That Coal Measures were not the only potential source of methane in tunnelling.
The Upper Carboniferons and shales could be sources, both from mudstone capped
sandstone reservoirs and as a result of stress-relief from carbonaceous deposits and
shales; stress-relieved methane was very rarely encountered but it was a well known
risk.
5. The tunnel would be driven through strata of alternating potential reservoir and
cap rocks interspersed with potential source rocks.
6. 3000' below the tunnel was Carboniferous limstone which was the source rock for
the gas in Morecambe Bay.
8. The anticline would increase the possibility of capped reservoirs, though fissures
and faulting might have already tapped to exhaustion any reservoirs which existed.
9. In the light of 1 to 8, transient small amounts of methane were certain to be
encountered and there was a clear possibility of encountering larger amounts in, or
coming through fissures from, reservoirs".
The learned judge referred to the basic geology of the area at more than one place in
his judgment. At p. 12B he said:
"I turn to the nature of the ground through which the tunnel passes. At a depth up to
about 170 metres it goes through the tail end of the Grizedale anticline: this is formed by
a fractured and fissured fold in the earth's strata. The nature of the strata in this area is
what geologists call millstone grits of upper carboniferous formation above the
carboniferous limestone and *399 beneath the coal measures. The millstone grits could
be expected to consist of alternating layers of mudstones, siltstones and sandstones with
shale bands, and such layers were, in fact, repeatedly and irregularly met during
tunnelling (see the longitudinal section in drawing 4"4 of Volume B, item 7). Sandstone
is porous and therefore capable of providing a reservoir for gas. Mudstone is
impermeable and therefore capable of providing a cap for such a reservoir. Siltstones are
partly permeable and partly impermeable. Shale can be both a source rock for methane
and a reservoir cap. Fractures and fissures may provide an escape route through an
otherwise impermeable cap, but they can also seal an otherwise open escape route".
This is a very clear and succinct summary of much evidence, and is not in the main
contentious. An anticline in geological usage is a fold or ridge in the earth where strata

lean against each other, dipping down in opposite directions. At p. 13D the judge
referred to a commercially viable reservoir found in Morecambe Bay in 1974, after a
search starting in 1969; it was in Triassic rocks younger than those at Wyresdale, though
the source of the gas was the Carboniferous below. At p. 26G the judge held, referring to
Mr Eastaff:
"He agreed that Mr Wheeler's summary on 8th June 1984 (F.57) and Hughes'
Textbook on Geology (of which an extract starts at F.58) was 'fairly basic stuff',
indicating shales as source rocks for methane, sandstones as potential reservoirs, and
anticlines as potential traps; and the geological circumstances of the Eakring oilfield in
Nottinghamshire seemed to be similar to Wyresdale, though at greater depth. Mr
Wheeler confirmed that in his post-accident memorandum (F,73) there is nothing which
was not known to geologists in the 1970's".
17-50 At p. 38, the judge summarised the evidence of Mr Williamson, the plaintiffs'
geologist:
"Mr Williamson has academic and practical qualifications both as a geologist and as
a mining engineer. He has a particular knowledge of the carboniferous strata and has for
almost 20 years been a consultant in relation to coals and minerals. He was an
impressive witness. He said that proper consideration of the Moseley article (K.14),
referred to in the Specification, would have shown potential source rocks and reservoirs
for methane in the strata through which this tunnel was to pass, and that Mr Wheeler's
post-accident paper (F.72) reflected geological knowledge available in the 60's and 70's,
that is, methane could originate from carbonaceous rocks such as shales which were
present in the area and from hydrocarbons in underlying limestone strata, which were
also present beneath the millstone grit; it could accumulate in anticlinal structures which
were known to exist; it could travel in water from below or laterally; and if methane
were trapped within folds of the strata, the possibility existed of sudden surges of
methane in the tunnel which could be dealt with by suitable venting arrangements. In Mr
Williamson's view, the geological background made methane *400 testing during
tunnelling imperative. The danger which he foresaw was not from a reservoir at depth
but in the anticline itself, where each of the shales and mudstones could act as a cap for a
potential reservoir in the underlying sandstone. But below the tunnel, he said, was
carboniferous limestone which was the source rock for the gas in Morecambe Bay".
At pp. 44-45, the learned Judge referred to the evidence of Sir Alan Muir Wood:
"Sir Alan Muir Wood is a civil engineer of the greatest distinction, academically and
in practice. He was a fastidious and impressive witness, scrupulously careful to answer
the questions which he was asked. I gained considerable assistance from his report and
evidence, particularly in relation to the operation of the system and the inter-related roles
of the First and Third Defendants, to which I will come later. But he also cast light on
considerations affecting the design stage. He said at paragraph 3.6(4) of his report, in a
passage with which Mr Williamson agreed and which I accept, 'Some methane
generation was to be expected from the shale bands in the rocks penetrated by the tunnel
and from those beneath the tunnel. The rate of entry into the tunnel could not have been
predicted, nor its degree of local concentration by gas traps arising from anticlinal and
faulted features of the rock'. At paragraph 3.12 he said: 'The absence of site investigation
along the line of the tunnel would emphasise the need for particular vigilance in tunnel
construction ...' At paragraph 4.1 he said: 'The presence of methane in the tunnel in

concentrations too low for any concern is therefore a virtual certainty; the rate of entry
and hence the possibility of any hazard would be entirely unpredictable at the time of
starting construction'. He emphasised in evidence the vital role of construction
experience in assessing the amount of methane, and in answer to Mr Gardam he said
this: 'When you are designing a scheme it is particularly necessary to look for all
possible sources of methane other than those which might be a source of embarrassment
while tunnelling'. I accept that."
17-51 It is to be noted that in paragraph 4.1 of his report (J/MW/8) Sir Alan was
referring to stress-relief methane (T14/126G).
It is necessary to remind oneself yet again that the question is what an ordinarily
competent civil engineer in the first defendants' position would have foreseen or known
at the relevant time. In considering that question, it is by no means irrelevant that none
of the first defendants' engineers or engineering geologists foresaw any danger of
leaking reservoir methane at Wyresdale and that a number of highly qualified experts
said they would have foreseen no danger either. Of course, all these witnesses may be
guilty of self-deception or special pleading. But in assessing this apparently formidable
body of evidence account must, in my view, be taken of the following facts:
1. The Institute of Geological Sciences, a publicity-funded depository and
disseminator of geological information, was consulted before the award *401 of the
tender, in a way which I shall later describe. It is in my view an inescapable inference
(as Mr Williamson, more tentatively, was inclined to agree: T1/125G) that the IGS
geologists, although concerned about a threat to the tunnel by water, envisaged no threat
by gas. The IGS for its own purposes followed the progress of the tunnel very closely on
the ground, making frequent and protracted visits (see, for example, CB/D/301;
T5/147D). There is no suggestion that methane, let alone the possibility of a methane
reservoir at depth, was ever mentioned or even thought of.
2. The most detailed and authoritative paper on the geology of the area around this
tunnel was "The Namurian of the Lancaster Fells" by Dr Moseley, published in 1953
(K/14). This illustrated the Grizedale anticline (K/36) but nowhere referred to the
possibility of gas, in that anticline or elsewhere. In 1955 Dr Earp published a detailed
paper on "The Geology of the Bowland Forest Tunnel, Lancashire", driven between
1948 and 1951 some nine miles east of this tunnel through the same fells. He gave a
graphic account of the volumes of water which poured into the tunnel but made no
mention of methane reservoirs or of methane problems during construction. Both these
papers were studied by the first defendants and referred to in their specification.
In 1951 Mr Grundy, an engineer, wrote an engineering account of the Bowland
Forest Tunnel, "Notable Water Tunnel" (K/122(1). He described the ventilation
provided, but did not mention methane. In 1979 Mr Boyd and Mr Stacey delivered a
paper on the Wyresdale tunnel at an international symposium organised (among others)
by the British Tunnelling Society and the Institute of Mining Engineers (D/511). In it
they said: "During excavation the tunnel was monitored for natural gas, nitrous fumes
and carbon monoxide, but no significant concentrations were found" (D/520). Some
statements in the paper aroused lively controversy, but this was not one of them; no
reference was made to the need to consider a possible methane reservoir (H11/17). In
1981 Mr Johnson of the IGS office in Leeds, who had been closely involved in the
drilling of the tunnel, and had led a guided tour of geologists through it (D/455/1), wrote

a detailed paper on its geology, illustrating the Grizedale anticline as established by the
excavation (H11/312). In this paper reference is made to the Whit Moor bore-hole
(which I consider below) but neither in that connection nor in any other is any reference
whatever made to methane.
3. There was nothing in the literature at this time to suggest that this part of
Lancashire was regarded as a fruitful field for gas or oil exploration, and on-shore
prospecting was in its infancy anyway.
4. The evidence was that it takes a lot of looking to find a reservoir, because they are
not all that common (T1/95G) although anticlines are (T6/4F). It was believed by the
Exploration Manager of the Gas Council in 1972 that generally the Carboniferous in
England does not pro *402 duce porous rocks (HIII/27). Many English limestones
contain no suggestion of methane (TII/77F)
5. Professor Knill in his first report expressed the opinion that "The presence of an
anticline, faulting and the characteristics of the geological succession provided no
warning or tell-tale features indicating that methane could be discharged into the tunnel"
(J/K/11). This was a clear opinion from an authoritative source, but the Judge does not
refer to it or give reasons for rejecting it if, as one infers, he did. The evidence did not
leave the basis of the opinion in doubt. It was put to Mr Williamson that the top cap
rocks of the Grizedale anticline were either non-existent or shattered to such an extent
that the gas would no longer be retained by them, and he agreed that any appreciable
quantity of gas would no longer be retained by them. (T1/96B).
Anticlines tend to be fractured, and one of the characteristics of mudstones and
shales of the Millstone Grit is that they tend to be brittle and fracture easliy (T11/95E).
Professor Knill pointed out (T11/90F) that in general the more the faulting, the
smaller any potential reservoir would be and the less would be the possibility of suck a
reservoir existing. He also pointed out (T12/34G) that cap rocks are much more sensitive
to the occurrence of gas than oil, and for gas reservoirs to be formed, there is needed a
much more dependable cap rock forming a better quality seal. Mr Eastaff would have
ruled out the possibility of a methane reservoir because the anticline was shallow and
open, and severely faulted (T5/95G). He thought that if a reservoir were leaking into a
shallow tunnel such as this, it would have shown up sooner or later in the explosion of a
well or an oil seep at the surface, neither of which was found in this area (T5/97F). If the
strata were such as to permit a massive inflow of water into the tunnel, as everyone
expected and as the articles I have referred to plainly warned, it is hard to see how those
same strata would retain the gas beneath the surface for periods of geological time
(J/K/35; T11/95H). If, as Mr Williamson was inclined to do (T1/95D), an engineer were
to envisage a reservoir at a greater depth than the tunnel, he would then regard a leak as
possible only if he were to envisage a mechanism by which gas, trapped beneath an
impermeable cap rock for a period of geological time, would be released as a result of
building the tunnel. I return to this aspect below.
17-53
6. Mr Williamson (T1/100) said that knowledge that an oil company was drilling for
saleable gas was widespread as soon as prospecting started in Morecambe Bay. Mr
Hammond first heard of it in about 1976-1978 (T6/26G). Mr Boyd had heard of drilling
in Morecambe Bay when he left the tunnel in 1979 (T7/149C). Mr Hughes, the deputy
resident engineer, never heard of it (T8/36F). Nor did Mr Eastaff (T5/99). Little detail

was, I think, available until a paper was published in 1981 (HII/296). I do not know the
basis on which it is said that any ordinarily competent civil engineer would have known
this by 1975. But even if *403 the first defendants had known, it cannot be said that an
ordinarily competent civil engineer would have regarded this as significant. It was
shown, contrary to the evidence of Dr Whittaker, that Abbeystead does not fall within
the Irish Sea Basin, which includes Morcambe Bay. Professor Knill's view was (J/K/20):
"The discovery of the Moreambe Bay gas field in 1974 indicated that where a suitable
overlying rock and trap existed Namurian/Westphalian rocks were source rocks for
methane; however, no geologically comparable trap or reservoir conditions exist in the
Wyresdale area to retain methane". This point was not effectively rebutted, Mr
Williamson's reply being that the underlying source rocks in each case were the same
(T1/98E/, 99C). Professor Knill did not regard the information as significant to the
geologist "because the boundary of the Irish Sea Basin is the boundary between the New
Red Sandstonerocks, which include the Morecambe Bay gas field, and the
Carboniferous rocks to the east and ... it is clear that with the absence of the cover on the
Millstone Grit there would have been ease of dissipation of methane during the
geological past". (T11/88G).
7. It is certainly true that Holmes' elementary textbook on geology illustrated the
Eakring gas reservoir in Nottinghamshire in a way which struck Mr Wheeler, after the
explosion, as being possibly illustrative of Wyresdale. The understanding from 1972
onwards, however, was that the Eakring reservoir was in some way connected with the
Coal Measures (T3/40B). Mr Eastaff did not agree that the geological circumstances at
Eakring seemed to be similar to Wyresdale, though at greater depth (judgment, p. 27A).
He identified two similarities: the presence of Millstone Grit and an anticline (T5/121E).
He identified seven dissimilarities: very much thicker strata at Eakring; reservoir at
much greater depth; absence at Wyresdale of Triassic or Permian or Coal Measures;
apparently thick strata below the Coal Measures at Eakring; apparent absence of faulting
at Eakring; lack of evidence that the Eakring beds came through to the surface; lack of
an isolated anticline at Wyresdale (T5/12 B-G).
Professor Knill considered this matter in his second report (J/K/34-35):
"The Grizedale Anticline appears to have an influence on the movement of the
methane and methane-bearing groundwater in that the main water inflows met during
tunnel driving and main methane inflows subsequently, are found close to the crest of
the anticline. However to suggest, as does Dr Whittaker, Mr Edwards and Mr
Williamson, that there could be close analogies with accumulations of oil and gas in the
East Midlands is erroneous. It is well known that gas and oil reservoirs occur in
Namurian and younger Carboniferous rocks in the East Midlands (Ref. 11). The top of
the reservoir, which is composed of Namurian sandstones comparable in age to those
encountered in the Wyresdale Tunnel, *404 are generally in excess of 600 to 700m
below ground level. The anticlines are broad, open and relatively unfaulted structures
(Fig. 4, Ref 11). The cap rock is formed by a minimum of 200 m of Coal Measure rocks
with a significant proportion of shale and mudstone. The Coal Measures are further
covered by a layer, about 400m thick, of younger Permo-Triassic rocks. The conditions
at the Wyresdale Tunnel are different ... the rocks are closely faulted, there is no cap rock
and the tunnel is a maximum of 150m from the ground surface".

8. After the accident, Mr Wheeler was asked by Mr Arah to speculate as widely as he


liked (T9/60F) on the possible causes of the disaster. Some of his speculations proved
very close to the mark (F57,72). They did not involve new geological knowledge,
although they did postulate a unique event. His perceptive analysis is a tribute to his
obvious intelligence and knowledge, but this must make it the more significant that no
inkling of a reservoir or a leaking reservoir occurred to him at the time of his active
participation in the project. When he came to speculate he knew that there had been a
methane explosion and that, given the lapse of time, the methane must have come from a
leaking reservoir. Neither of those crucial facts was known to the designers of this
system. It is one thing to diagnose a disease when the symptoms are displayed before
one; it is quite another to foresee the occurrence of the disease.
(b) The literature on methane occurrence and solubility
17-54 In argument before us reliance was placed on four papers, one of which was a
paper prepared internally by the first defendants. I consider these papers in turn.
(i) The first and most important of these papers was entitled "Furnas Hydro-Electric
Scheme, Brazil; Closure of Diversion Tunnels" written by Lyra and McGregor. It was
published in 1967. It was a substantial paper, running (with the ensuing written
discussion) to nearly 50 pages, (HI/226). A large dam (with associated tunnels) had been
built at Furnas in Brazil, and a large reservoir impounded. It seems that the site of the
reservoir, heavily vegetated, had not been cleared, certainly not adequately cleared,
before the water was impounded. There was thus a large volume of water lying on top of
large quantities of rotting vegetation. An explosion, thought to be a methane explosion,
occurred in a tunnel.
The tentative conclusion of the paper was that biological methane had been
generated by the rotting vegetation, which had been dissolved in water under the
pressure of the water above it, and that the methane had penetrated the concrete lining of
the tunnel and, on experiencing a drop in pressure, come out of solution and formed an
explosive mixture which had ignited.
Various points may be extracted from the paper and the ensuing discussion about the
solubility of methane under pressure, about its ability to seep through *405 cracks in
rocks and concrete, about the need for elaborate testing, and about the need to be
attentive to the possibility of methane in unexpected circumstances. But it was
essentially a paper about the risk of biological methane in tropical conditions. In the
course of the written discussion, a partner in Dr Coats' firm referred to a similar incident
in Ghana, also attributed to methane generated by the decay of organic matter (HI/256).
He urged systematic and elaborate monitoring. Mr Gerrard, then a partner in the first
defendants firm, referred to the risks of decaying vegetation in a reservoir area (HI/260).
Another contributor mentioned biological methane given off accumulated silt at the
Bankside Power Station in London, and an unexplained accident during the sinking of a
colliery shaft in North Wales (HI/262), perhaps attributable to the escape of stress-relief
methane from fractured rock.
For the plaintiffs, Mr Edwards referred to this paper (G/E/61). He thought the article
significant as showing the danger of methane entering the tunnel, the increase of
methane solubility with pressure and the mechanics of solubility (T2/24A, C,H). He
was, however, in no way qualified to say what effect the article would have on the mind

of the ordinarily competent civil engineer, although he did in an addendum to his report
(G/E/62) express the extraordinary opinion that the knowledge of Sir Alan Muir Wood
"must be assumed to be common knowledge within the profession".
Dr Whittaker did not, I think, refer to this paper at all.
Mr Haswell was supplied with a copy of this paper by the plaintiffs' advisers
(G/H/37) but made no express reference to it in his report. In his oral evidence he said
(T4/43H) that the paper had a great impact on the profession at the time and caused
everyone to sit up. But when it was put to him (T4/44B) that after the Furnas paper most
people were aware of the danger of methane from rotting vegetation and the danger of
leaving vegetation to rot on the floor of the reservoir, and that that was the main lesson
to be learned from the experience, he agreed, before going on to speak of oil exploration
in Iran by the company which is now BP. When, a year after the Furnas paper (T4/46E),
Mr Haswell had designed his tunnel under the Severn, the risk of an explosion from
methane did not cross his mind (T4/38H): he simply read up Walker's famous book on
the Hawkshaw Tunnel on the railway line from Paddington to Bristol (T4/39A, 46G),
rather as the first defendants read up Earp's article on the Bowland Forest Tunnel.
17-55 The first defendants were aware of the Furnas paper but regarded it as a
warning against the risk of building reservoirs and dams in heavily vegetated tropical
areas. Mr Hammond read the paper and associated it with risks in Brazil and Ghana
(T6/80F). Mr Arah read the paper (T9/36F), "in the way one often reads these rather
complex papers--you try to takeout of it particulars which will apply to you in the work
you are doing" (T9/36G): to him the article dealt with the danger from a prolific source
of methane where vegetation is not cleared from the bottom of a reservoir in tropical
conditions (T9/37A, 128C). He did not think it applicable to Wyresdale (T9/37C, 128B).
Mr Boyd had attended a discussion on the paper, which he recalled as "a matter of
decaying vegetation at a considerable depth in a reservoir, and it was biological methane
which had got into the tunnel system under great pressure" (T7/130B).
*406 The expert evidence suggests that the first defendants' understanding was in
line with that of the profession. Dr Coats described the paper (J/C/13) as discussing a
gas explosion where the gas, resulting from micro-biological breakdown of organic
substances, was dissolved in water under considerable pressure and was then released as
water leaking at the gate on suffering a pressure drop. None of these conditions in his
opinion obtained at Abbeystead. He had read the paper carefully when it appeared, but
did not think it relevant to situations as at Abbeystead where there were neither high
impoundment pressures nor tropical vegetation (T10/60E, G). Professor Knill regarded
the paper as one about the decay of prolific vegetation and the effect of a sudden
pressure drop on methane in solution (T11/75D). The paper did not seem relevant to Mr
Robertson, because it dealt with the unusual occurrence of biologically produced
methane leaking from the floor of a reservoir into nearby tunnels (J/R/15). Sir Alan Muir
Wood said that the risk of methane in groundwater building up to an explosive mixture
had been more generally brought to light as a result of the accident at Abbeystead,
notwithstanding prior examples of the phenomenon elsewhere (J/MW/22; T14/96G).
(ii) The Furnas paper provoked an editorial in "Water Power" in April 1967, entitled
"Methane at Furnas" (HI/173). The editorial acknowledges that the methane at Furnas
probably arose from decaying vegetation contained in the layers of water under pressure
towards the bottom of the reservoir. The article suggests a series of lessons to be learned.

The first is that although methane may be regarded as an unusual hazard in hydroelectric underground workings, it is nevertheless a hazard which can arise and the
possibility of risk from methane needs to be taken seriously. Secondly, methane can
occur in the most unexpected situations; it is suggested that occluded methane can occur
in rocks other than coal measures. Thirdly, methane is described as an insidious and
deadly gas, and monitoring for the gas must therefore be meticulous. The recipe for
safety was abaundant ventilation coupled with regular and painstaking monitoring.
Mr Hammond had read this article, which was circulated within the first defendants
(T6/81A, 83G), and agreed it was a proper professional reaction to the Furnas paper
(T6/81B). He did not consider the article in relation to this job because he understood
that the first defendants were in an area of geology which would not have gas flows in it.
There was no evidence from any qualified source that reasonably competent consulting
engineers in the first defendants' position would have regarded this article as adding
anything to, or throwing a different light on the Furnas paper, or as being applicable to
the Wyresdale tunnel. It is indeed plain that the editorial was intended merely to draw
attention to the Furnas paper, of which the first defendants were already well aware.
17-56 (iii) In 1937 Messrs Buswell and Larson wrote an article entitled "Methane in
Ground Waters", published in the Journal of the American Waterworks Association
(T2/20). It begins: "Methane has been occasionally observed for many years in water
wells in Illinois and its source has been held to be the decay of organic matter,
principally vegetable, in glacial drift or similar formations". The article discusses the
solubility of methane and the need for ventilation, and identifies the very limited areas
of Illinois where methane had been found in ground waters. The article was mentioned
by Mr Edwards (G/E/15, 59) who *407 researched all the literature he could possibly
find on the topic of methane in groundwater (T2/81D), and by Dr Whittaker
(G/WH/17,99). Mr Edwards said (G/E/15) that this paper was cited in many articles on
the subject of methane in water, and might be regarded as a standard reference on the
subject. There was, however, no evidence from a qualified source that an ordinarily
competent consulting engineer in the first defendants' position would either know of the
paper or regard it as applicable to Wyresdale. Mr Wheeler, who had only recently left the
university, had never to the best of his knowledge learned of it (T5/150B).
(iv) In January 1967 Mr Picknett wrote a paper entitled "Danger of methane gas
explosions in tunnels at impounding, with particular reference to Batang Padang" (CI/1).
We were told that Mr Picknett was an engineer employed by the first defendants, and
that he wrote the paper for Mr Gerrard, the first defendants' partner, who contributed to
the discussion on the Furnas paper and who was concerned with a reservoir at Batang
Padang in Malaysia.
The paper opened:
"It is probable that methane derived from rotting vegetation in the reservoir area can
find its way into tunnels and dam foundations. The methane presumably dissolves in the
reservoir water under pressure. Water leaking into a tunnel or seeping under a dam
foundation to a lower pressure area therefore gives off methane, which can accumulate
there. This note describes some reported cases and other similar phenomena, and
attempts to explain the danger of explosions from this source. The conclusion is reached
that although unlikely in any particular case, the possibility should be borne in mind and
precautions taken if thought necessary".

The author discusses the then forthcoming Furnas paper; what was thought to be a
biological methane explosion in Ghana; an explosion in Hungary during the driving of a
tunnel when the ventilation broke down; the formation of biological methane reported
by Kuznetsov; the possibility of biological methane at Batang Padang; an explosion of,
probably, petrol vapour at Usk; a discovery of methane from Coal Measures at the Forth
Bridge; an accummulation of methane from the bottom of a harbour during the fitting of
a ship by John Brown; a prediction of biological methane at Tremengor; and explosions
caused when a tunnel was being driven through bituminous shale in Colombia. Mr
Picknett was primarily concerned with the generation of methane from rotting
vegetation in a reservoir and the risk of its infiltration into tunnels leading from the
reservoir. He referred to the possibility that methane might be generated from organic
substances in bedrock and directed attention to carbonaceous shales and bituminous
shales and Coal Measures. He favoured investigation whether methane was in rock, and
exploration of the geological considerations; assessment of the risk of methane entry
from the water reservoir; monitoring; ventilation, and, if there was methane, the use of
flame proof equipment and the prohibition of smoking.
17-57 As the judge held (judgment, page 22E), this paper never reached those
involved in this project. That may not be surprising in a firm employing 1,000 engineers.
The document came to light after the explosion because Mr Picknett *408 himself
produced it (T9/129C). Mr Hammond and Mr Arah then saw it for the first time. Neither
even then considered it relevant, Mr Hammond because there was no suspicion of
organic material in the Wyresdale bedrock (T6/85F), Mr Arah (it would seem) on more
general grounds (T9/129). There was no evidence from any qualified source that in a
reasonably competently run firm this paper would have been circulated to those in
charge of the Wyresdale project or that, if it had been circulated, an ordinarily competent
engineer in the first defendants' position would have regarded the paper as applicable to
that project.
(c) The Whit Moor borehole
17-58 The Judge held (judgment, p. 45A) that by 1975 the first defendants ought
reasonably to have known:
"7. There were slight gas shows in the Whit Moor borehole at 700' and 1100' as well
as a major show at 3300'."
He made other findings at pp. 27F-30D of the judgment, and plainly regarded the
matter as of considerable importance. So do the plaintiffs. Their Counsel submitted that
they produced no better evidence than on this matter.
The essential facts are not in dispute. In about 1964 Place Gas and Oil Limited, a
small foreign-owned oil company, decided to prospect for oil in the Whit Moor anitcline,
about seven and a half kilometers north-east of the tunnel, believing (wrongly as it
turned out) that its geology might be similar to the East Midlands oil field. The company
gave notice of its application for planning permission to drill a borehole to, among
others, the Lancashire River Authority, one of the predecessor authorities combined to
form the third defendants. That authority did not object, and it never learned the
outcome. Permission was granted and the borehole was drilled to a depth of over 5000'
during three months between November 1966 and January 1967. There were slight
shows of gas at 700' and 1100', and a larger show at 3300'. But nothing was found

worthy of commercial exploitation and the borehole was abandoned. The borehole log,
recording what was found (including the gas shows) was passed to the Department of
Trade and Industry who, in accordance with standard practice, filed it with the IGS on
terms of strict confidence.
When the first defendants embarked on investigating the site of this tunnel, they
made enquiry of the Lancashire River Authority, which in response sent the first
defendants some drawings described as "all the available information we have to hand
concerning boreholes already sunk in the area of the Lune Wyre link" (C/28/(8)). No
drawing related to Whit Moor. The Authority had none. On May 4, 1972 the first
defendants asked the IGS for copies of records of two specified bores "and of any other
records that you may have in this area" (C/31(1)). The IGS gave a brisk but rather
negative reply (C/32). In July 1972 the first defendants asked the IGS for information in
the form of maps or papers on the geology of the area (C/37). The IGS in reply referred
to Moseley's paper, and gave certain additional information, but made no reference
directly or indirectly to the Whit Moor borehole nor to any show of gas (C/38).
*409 In due course the first defendants issued the specification for the contract,
which contained a section summarising the geological and hydrological information
available, and referred to the articles by Moseley and Earp. It appears that in the course
of preparing their tenders certain contractors approached the IGS for additional
geological information. Dr Aitkenhead of the IGS in Leeds expressed concern to the
third defendants because the IGS believed that there might be an anticline on the route of
the tunnel which would introduce the Millstone Grit series; the IGS were concerned that
there could be an inrush of water into the tunnel from this stratum, which could be
disastrous.
Dr Aitkenhead was surprised that more borings had not been made in the line of the
tunnel. The third defendants passed this information to the first defendants on May 5,
1975, suggesting that a meeting be held to clear up the problem, and establish what
information had been given to tenderers (D/132). A meeting was quickly arranged for
May 8, 1975 in London, attended by Messrs Collins and Eastaff of the first defendants,
and Dr Evans of the IGS Leeds office.
17-59 Minutes of the meeting were made which contain one paragraph relevant for
present purposes (D/138):
"The geological sequence consists of two sandstone formations known as the
Roeburndale Grit and the Pendle Grit separated by a sequence of siltstones, sandstones,
mudstones and shales which may be much thicker than the 450ft indicated by the old
maps. (The IGS have information from one deep borehole which they cannot divulge)".
The reference in brackets was to the Whit Moor borehole, of which the first
defendants had no knowledge at all at the time. Mr Eastaff thought that the information
in the penultimate sentence was a hint of information which the IGS had and were
passing on, but could not divulge in detail (T5/75B). Mr Arah, to whom the minute was
passed, read the information in the last sentence as an explanation of what was contained
in the sentence before (T9/34F). That is, surely, the natural reading of the paragraph, and
there was no challenge to the accuracy of the minute. That the first defendants so
understood what they were told at the time is confirmed by a contemporary diary entry
(D/144(1)):

"There is a borehole relevant which they cannot disclose, but suggests thicker
mudstone/shales between the grits. We must not disclaim anything they say, as may be
based on this (though unlikely)".
Following the meeting, the first defendants prepared an addendum to the tender
documents. It was read to Dr Aitkenhead over the telephone and modified in accordance
with his comments. It was then sent to him with a request to confirm it as correct
(D/142). Dr Aitkenhead telephoned to say that the draft covered the points he was aware
of, and he wanted no amendment (D/144(2)). On May 12, 1975 Dr Aitkenhead wrote to
the first defendants to confirm that the addendum was a correct account of the geological
information available to tenderers from the IGS in Leeds (D/146(1)). One of the
plaintiffs' experts, Mr Williamson, drew the inference that the IGS appeared not to have
considered *410 the risk from methane (T1/125G). Another, Dr Whittaker, thought that
if Dr Aitkenhead had thought there was a substantial risk of methane occurrence, he
would have added this to his letter (T3/66D, 67F).
When, in 1981, Mr Johnson of the IGS, published his paper on the geology of the
Wyresdale tunnel (HII/312) he referred to the Whit Moor borehole when discussing the
thickness of the strata, and acknowledged permission from Place Gas and Oil Limited to
quote data from the Whit Moor borehole, but did not refer to gas. Following the
explosion, however, the existence of the borehole and the name of the drilling company
quickly became known, and the telephone number of the company's remaining U.K.
representative, Dr Fothergill, was obtained. In due course, although not without
difficulty (F/71(1), T5/152 D) sight of the borehole log was also obtained.
17-60 The Judge made six findings relevant to the main finding on this point which I
have quoted above. Each of these findings is, as I respectfully think, open to serious
objection:
(i) The Judge held (at p. 29B) that the very existence of a borehole ought to have
alerted Mr Eastaff and Mr Collins to the possibility of exploration being under way for
hydro-carbons. The first defendants of course knew nothing of the date, site or purpose
of this borehole. But one must put oneself in their position at the time. They had sought
information from the IGS at the outset of this investigation. No mention had been made
of hydrocarbons. The IGS had expressed alarm about the risk from water (surprisingly,
since the risk was made plain in Earp's article referred to in the specification) but had
alluded to no possible risk from natural gas. Mr Eastaff felt that "as they had mentioned
water to us, I would have expected they would also mention gas or oil" (T5/111D). It
would, I think, be inconceivable to an ordinary reasonably competent engineer, that a
responsible and highly expert body such as the IGS, with access to privileged
information, would not draw attention to a safety hazard of which they were aware.
When, on May 12, 1975, the IGS confirmed that the addendum was a correct account of
the geological information available to tenderers from the IGS in Leeds that was, on any
reasonable reading of their letter, tantamount to saying that what the first defendants
then had was all the information the IGS had available. Such was the plaintiffs' case put
to Dr Coats and he agreed with it (T10/114A). It is of course easy, with the benefit of
hindsight, to suggest that the first defendants should have pressed the matter with the
IGS. At the time the first defendants felt unable to do so: "If they can't divulge it, and
they are a professional body, one can't ask them any further questions. One cannot
pursue it" (Collins, T7/37D). Dr Coats would have felt the same: "We in the engineering

profession accept confidentiality, and if we are told by a Government Department that it


is confidential and cannot be disclosed, we really find ourselves unable to press it any
further" (T10/87E). It seems to me quite unreasonable to conclude that the first
defendants should have been alerted to something of which the IGS gave no hint.
(ii) The Judge held (page 29B) that the name of the drillers, if ascertained, would
have converted the possibility of exploration for hydrocarbons into a certainty. It is true
that Sir Alan Muir Wood thought that he would have learned the name of the
organisation concerned (T14/108A) but Dr Fothergill, whose *411 evidence the Judge
accepted, thought it correct to say that the IGS would not give the name of a company
who had deposited the information; it was, he said, the results of the drilling which
might be disclosed (T2/116C). It seems likely that the name of the company would be
confidential, at any rate unless the results of the drilling were negative; and if that were
so, the name of the company would have been of no materiality to the first defendants.
(iii) The judge held (p. 28F) that when, just after the explosion, Mr Wheeler was on
the point of making contact with Dr Fothergill, he was told by Mr Dunn, acting on
instructions from Mr Arah, not to bother making any further enquiries. I do not think the
Judge meant to suggest that the first defendants deliberately halted enquiries for fear of
unearthing embarrassing information (judgment, p. 5H). If he did, that suggestion is not
in my view justified. The evidence was that the first defendants stopped Mr Wheeler's
enquiries because they knew that the third defendants, with whom they were closely cooperating, were in the course of obtaining, or had obtained, the information in question
(Arah T9/61B; Dunn T9/4F).
(iv) The judge found (p. 29C), that if the first defendants had sought from the third
defendants either under their contractual powers or otherwise, information as to
boreholes in the vicinity of the tunnel, the third defendants could, after modest research,
and would have provided them with the same lead about the Whit Moor borehole as was
provided after the explosion. That is a statement which may, with the benefit of
hindsight, be made. At the time the first defendants would have said, quite correctly, that
they had enquired of the local water authority and obtained what information the
authority had. The failure of the Lancashire River Authority to mention the Whit Moor
borehole is entirely understandable and does not in any way reflect adversely on that
Authority or the third defendants. But the first defendants at the time had no reason to
repeat a question already answered, and no reason to investigate a risk to which they had
not been in any way alerted.
(v) The judge found (pp. 28B, 29E) that Dr Fothergill, if asked, would have provided
the first defendants with information from the borehole log. The Judge accepted Dr
Fothergill's truthfulness, which indeed was never challenged. I therefore accept that he
believed what he said. But he gave evidence with knowledge of a great disaster, and his
evidence is not exempt from scrutiny. He could not recall any occasion when the
company had ever been asked to divulge information on a borehole in the United
Kingdom, save as part of a commercial exchange with other oil companies (T2/26B).
The question was therefore a novel one to him, although there was evidence (to which
the Judge did not refer) that in 1970 or 1971 his company had been approached for such
information and refused to give it (T6/56A). On Dr Fothergill's evidence, the company's
answer would depend on the nature of the enquiry: "If there was an enquiry where the
information owned by the oil company was such that there would be a safety element

involved in the enquiry, then the oil company would give favourable consideration to
releasing such information on a confidential basis" (T2/112F). He repeated "... if as I
indicated just now) there was an element of risk involved or an element of safety, we
would respond favourably, I'm sure" (T2/113A). *412
"Q. With the background of this case, would you have given the information, if
asked? (A) Certainly". (T2/113B).
He later repeated the substance of this answer, making reference to "the background
of the project" (T2/115C, D). If therefore, the ordinarily competent engineer has been
alerted to the possibility of exploration for hydrocarbons, and has obtained the name of
the drilling company and approached Dr Fothergill, he will obtain information from the
borehole log only if he bases his request on a safety consideration which had entirely
escaped the IGS and which would not, on the evidence I have already reviewed, have
occurred to any reasonably competent engineer. In the ordinary way, any approach
would have been for information on the depth of the strata, the sole feature regarded as
significant by the IGS or by Mr Johnson when he came to write his article (assuming he
was at liberty to mention the gas shows). But the first defendants had chosen a target
cost contract as opposed to one based on rock classification precisely in order to avoid
undue concern with the detailed nature of the strata in this heavily faulted ground. I do
not think it can fairly be held that the reasonably competent engineer in the first
defendants' position would ever have reached the stage of approaching Dr Fothergill nor
that, if he had, his question would have been likely to elicit this information.
(vi) The judge held (p. 29F) that the information from the borehole log would have
had a significant impact on the first defendants' approach to the risk of encountering
methane.
"It is possible that a pipeline rather than a tunnel might in consequence have been
built. It is certain that the first defendants' approach to the risk of encountering methane
would have been far more wary. I do not accept Mr Arah's evidence that knowledge of
the Whit Moor borehole would have been irrelevant. Mr Eastaff would have found it
relevant. It would clearly have lent weight to his wish to have more boreholes which Mr
Hammond is unlikely in consequence to have brushed aside".)
17-62 The evidence certainly supported the view that the information in the Whit
Moor borehole log was relevant. Mr Arah did refer to doubt whether there should be a
tunnel (T9/126B). But the plaintiffs' case, put to a number of witnesses and accepted,
was not that the borehole information should have led to the tunnel not being built or
being redesigned, but that there should be extra care in carrying out monitoring,
including testing (Dunn T9/5E); (Arah T9/126B, D); (Knill T11/128B, T12/30G). That is
something which the first defendants intended should happen anyway. Mr Eastaff said
what his reaction to indications of gas from the Whit Moor borehole would have been
(T5/123B):
"I think I would have been in exactly the same position. Although, as I have said, I
was always concerned that we did no investigation along the line, at the end of the day I
am certain I would have finished up saying exactly the same thing, that monitoring
should be carried out during the construction of the tunnel".
*413 This view seems to accord with competent professional opinion. Mr Haswell
pointed out that in Iran it took BP's predecessor 20 years, with anticlines all over the
place, to find any gas (T4/69C). Dr Coats knew of no site investigation for normal works

where the borehole information would assist in identifying methane (T10/57E). Mr


Tough thought that sinking additional boreholes along the line of the tunnel would most
probably not have increased significantly the chance of finding out whether there was
methane present in the strata through which the tunnel was to be driven (T13/27, D,E).
Mr Mackenzie thought the first defendants were very unlikely to find methane by
drilling three or four boreholes on the line of the tunnel (T13/63G). Sir Alan Muir Wood
considered that "the information from a few deep boreholes would have been unlikely
greatly to extend the pre-existing knowledge of the local presence of methane and would
have been most unlikely to alert Binnies to any hazard arising from methane in solution
in ground water" (J/MW/7).
Reference is made to Mr Eastaff's recommendation of additional boreholes
(originally, at C/18, made with reference to a shallower tunnel on a different line:
T6/15A, 16A, C) being brushed aside. Mr Hammond reviewed the pros and cons but had
an engineering decision to take and took it (T6/23E). His view was very much that of Mr
Haswell, that geologists "are usually not thinking that at the end of the day you have got
to provide an economic project for a client. They like to do a couple of years research on
everything. You have got to get on with the job, that is the snag". (T4/55H).
(d) The necessity for testing during construction as judged before construction started
17-63 The judge held (at p. 46D) that by 1975 the first defendants should have
known:
"10. A strict, regular and efficient system of testing for methane during construction
was imperative and if significant unexplained amounts were discovered, this should
have caused concern and, unless risk to the safety of the permanent works was
eliminated, re-design of the valve house (should have been carried out) so that venting
was direct to the atmosphere".
As I have shown, the first defendants intended that there should, during construction,
be monitoring against what they foresaw as a remote risk of stress-relief methane. I shall
have to consider the history during the construction period in detail hereafter. But the
need to test does not of itself bear on the carefulness or competence of the first
defendants' design.
(10) The first defendants' liability at the design stage
17-64 The crucial question at this point is whether at the design stage of this project
an ordinarily competent engineer in the position of the first defendants would have
foreseen a danger to life and health from methane leaking into this tunnel *414 from a
reservoir (as opposed to transient stress-relief methane which could be dissipated by
adequate ventilation during construction). If so, the design was, in my view, seriously
flawed. If not, it was acceptable. Having made a lengthy, and I hope fair, review of the
evidence, and having given (as I hope) appropriate weight to the matters on which the
Judge relied, both singly and cumulatively, I reach the clear and unequivocal conclusion
that the answer to the question is negative. To the extent that my answer differs from that
of the Judge I do not think the difference can be attributed to his advantage in seeing and
hearing the witnesses, and assessing their demeanour and credibility. The difference
derives from the inferences which we respectively draw from evidence, much of which

is not open to dispute. In my judgment the first defendants are in justice entitled to a
clear statement that they were not guilty of professional negligence at the design state of
this project.
B. The Construction Stage
17-65 The first defendants' contract specification, under which the second defendants
were engaged, contained a clause headed "Tunnels", with a side heading "Normal
Working Ventilation". (D1/78). The following extracts are relevant:
"2.8.101 Tunnel construction shall continue by day and by night.
2.8.102 The Contractor shall provide to the satisfaction of the Engineer, fans and
ducting to remove quickly dust and fumes from any cause and to provide sufficient fresh
air for the health and comfort of persons working in tunnels.
In all parts of the Works, the atmosphere inhaled by workmen and other authorised
persons shall contain not less than 20% of oxygen and shall not contain a concentration
of contaminants such as gases, vapours and dusts greater than is safe for their health,
having regard to the effects of time, temperature, humidity and the combined effects of
several contaminants. The concentration of imflammable contaminants shall not exceed
10% of the lower explosive limit ...
In all underground works, throughout the period in which explosive or other
materials producing contaminants are used, and at such time as may be necessary to
maintain the standard of purity of air required by this Clause, clean fresh air shall be
supplied by forced ventilation at a rate of not less than 1.5m3/min/m2 of excavated cross
section of working ...
... the atmosphere inhaled by workmen and other authorised persons in all parts of
the works shall not contain more than 5ppm of nitrous fumes ... for longer than 10
minutes after each blast, 30 ppm of nitrous fumes as an absolute maximum, 100 ppm of
carbon monoxide as an absolute maximum, 5,000 ppm of carbon dioxide as an absolute
maximum, or for any contaminant a concentration exceeding that stated in the list of
maximum permissible concentrations ...
The Contractor shall provide, maintain and use as directed by the Engineer an
instrument of pattern approved by the Engineer to measure the velocity of air, and a
Draeger Gas Detector Model 19/31 ... or other approved *415 gas detector and shall
provide and maintain one of each of the instruments for the use of the Engineer ..."
It is, I think, plain that the object of this clause was to protect the health and safety of
those working in the tunnel or visiting it during construction. This was primarily to be
done by abundant ventilation. The ventilation rate specified was unacceptably and
unaccountably low, but the rate actually provided was (as the judge held, judgment p.
69F), ample. For methane, the maximum permissible concentration was 0.5 per cent
volume in air, being 10 per cent of the conventional lower explosive limit of 5 per cent.
But testing is under the clause a second line of defence; the better the ventilation, the
less the risk of an excessive concentration of contaminant building up, and so the less
the chance of detecting such a concentration by any test: but the better the ventilation,
the safer those working in or visiting the tunnel must necessarily be.
17-66 Mr Boyd was reflecting the practical intent, if not the legal effect, of the
clause when he said (T/8/13G): "I do not think that in the circumstances that we were
aware of, given the nature of the tunnel, where it was, the fact that we had excellent

ventilation, that regular testing would have added anything to the safety matters of the
tunnel under construction".
Other practical engineers reflected a similar approach. Mr Haswell said (T4/37F):
"Experience has shown that providing you have very good ventilation you are probably
all right, and that is why they didn't take any notice of the specified amount of air which
you had and multiplied it by many times, because the more you have air the less chance
there is of any concentration of gas". On his Severn Tunnel he had done no testing at all
"... but I think you had experience behind you of many years of tunnelling where you
had a very high degree of ventilation, and that precluded any danger ..." (T4/38G). He
thought the practice had changed in "the last couple of decades" (ibid).
In Dr Coats' view, the primary way that he would achieve a safer working
environment for the men in the tunnel would be by adequate and suitable ventilation
(T10/83C). There was not, and perhaps there could not be, any contrary view.
Mr Boyd, the first defendants' resident engineer, made a diary note on November 19,
1976, "Ventilation for methane", although he could not remember it when giving
evidence 10 years later (D/274). Nor could he remember a discussion with the second
defendants on March 23, 1977, following which he recorded in a letter (D/300(1)) that
gas detection, particularly for methane, was to be arranged on a regular basis. Nor could
he recall saying, on April 5, 1977 (D/314(1)) that the tunnel was in the Carboniferous
strata, and as such it would be wise to take weekly readings of methane concentrations
in each heading in addition to checks on nitrous fumes, carbon monoxide and carbon
dioxide as set out in Clause 2.8.102 of the specification. But there is no reason to doubt
these contemporary records, or a diary entry on April 5, recording discussion of a testing
programme for gases including methane, and the fact that "Draeger test meter is on site
together with tubes for all gases except methane; these will be obtained and a weekly
test undertaken in each heading by Mr Towle". (D/ *416 315). By the time of a meeting
on April 26, it is recorded that methane testing facilities were available and tests had
started. (D/333(1)).
By this time, however, tunnelling had been in progress for over a year. Although Mr
Boyd firmly believed there had been earlier tests for methane, there was no record or
evidence of any, and the conclusion must be that there had not. Some methane testing
did start in April 1977, but even then there was not a weekly test in each heading.
Neither Mr Boyd nor his subordinates or superiors, insisted on compliance with his
instruction. There was, on the evidence, no evaluation by senior engineers of the test
results which were obtained. Against this background Counsel for the first defendants
was, before us, rightly constrained to accept that the first defendants, as engineers under
the contract, had not insisted on a satisfactory system of testing.
(1) Duty of care--testing
17-67 The first defendants submitted that even if they carelessly failed to insist on a
satisfactory system of testing, they were not thereby in breach of any duty or liable in
damages to the plaintiffs, because an engineer who could not reasonably foresee, and did
not foresee, the possibility of leaking reservoir methane would not have in mind, as
likely to be affected by any inadequacy in the system of testing, visitors to the completed
works well after their completion and commissioning and handover.

At first I found this submission unattractive, but I am persuaded that, if my


conclusions on the design stage are correct, this submission is also correct. One starts
from the assumption that the first defendants, reasonably and properly, had no foresight
of leaking reservoir methane, but were alert to the risk (thought to be remote) of stressrelief methane.
Suppose that at the time of the failure to insist on satisfactory testing the first
defendants had been asked who they could foresee as potential victims of their failure.
The honest answer would have been: workers in and visitors to the tunnel during the
period of construction before the foreseeable stress- relief methane had had time to
dissipate. It is not of course necessary for a defendant, to be liable, to foresee the precise
identity of his victim, or the precise mechanism of the injury which the victim suffers.
But it is necessary that the defendant, to be liable, should foresee (or, in accordance with
his duty of reasonable professional competence, to be capable of foreseeing) the class or
risk and the broad class of victim. This is not an artificial or semantic distinction, as
shown by the hypothetical question and answer I have just posed. For if the supposed
question had been asked and the answer given, the first defendants might well, and not
unreasonably, have concluded that the best protection to the class to whom injury was
feared against the injury apprehended was to ventilate even more amply. That was a
response well suited to protect those whom the first defendants had in mind against the
injury they had in mind, but it would have done nothing to protect the plaintiffs because
they (as a broad class) and the risk to which they were exposed, were altogether outside
the reasonable contemplation of the first defendants.
I would accordingly conclude that despite their failure to insist on satisfactory *417
testing at the construction stage, the first defendants are not liable for that failure
because they owed the plaintiffs no duty of care. They were not people who, in the
language of Lord Atkin in Donoghue v. Stevenson (1932) A.C. 562 at 580, the first
defendants could reasonably foresee as being so closely and directly affected by their
acts that they ought reasonably to have had them in contemplation as being so affected
when they were directing their minds to the acts or omission which are called in
question.
This submission would not, of course, avail the first defendants if it were shown that
events occurred during construction which would have alerted ordinarily competent
engineers to the risk of injury to the plaintiffs, even if they were reasonably unaware of
the possibility of such risk at the outset of construction. The background is highly
relevant here, because the more unforeseeable an event at the outset, the more clear the
indications will have to be to alert an ordinarily competent engineer to the possibility.
17-68 In this case there was, on the evidence, no such indication. At its highest, the
experience of methane during construction suggested stress-relief methane, the remote
possibility of which the first defendants acknowledged. That is, in my view, clear from
the evidence I hereafter review.
In case my conclusion on the first defendants' duty is wrong, however, I must turn to
consideration of a large topic, whether leaking reservoir methane was entering the tunnel
during contruction. If it was, then failure to test may have been causative of injury to the
plaintiffs (leaving questions of remoteness aside). If it was not, and there was at that
time no methane or only transient stress-relief methane in the tunnel, then failure to test
was without causative effect, for there would, by the end of the construction period, have

been no methane to detect and even the most exhaustive testing would not have detected
the methane which caused this tragedy.
(2) Was methane from a reservoir leaking into the tunnel during construction?
17-69 The learned judge posed a different question: Was gas present during
construction? (judgment, p. 60G). That question does not distinguish between stressrelief methane and methane leaking from a reservoir. In my judgment, the distinction is
crucial, because discovery of stress-relief methane would not have alerted the first
defendants to the risk which caused this tragedy, or prompted re-design of the valve
house which would have averted it. The Judge reached the conclusion (judgment, p.
68C) that gas of geological origin was present during construction, certainly from the
Spring of 1977, and was entering the tunnel over a significant length and in significant
quantities, albeit in varying places and amounts. In reaching that conclusion, he relied on
tests carried out by Mr Towel, tests carried out by Mr Wild; the evidence of Dr
Artingstall and Mr Cole, the evidence of the experts, and the evidence of Mr
Kluczynski. I must consider these matters in turn, but before doing so I must describe
the Draeger gas detection equipment, without which the significance of the tests which
were done by Mr Towle and Mr Wild cannot be appreciated.
*418 (a) The Draeger gas detection equipment
17-70 The Draeger gas detector is a small hand-held bellows. With it are supplied a
number of different tubes, each appropriate to test for a specific gas or gases. Thus,
relevantly to this case, different tubes may be used to test for carbon monoxide, carbon
dioxide or nitrous fumes. The use of the equipment is simple. Having fitted the
appropriate tube, the operator squeezes the bellows a stipulated number of times. This
draws a sample of the atmosphere into the tube. The gas being tested for, if present in the
sample of atmosphere tested, reacts with chemical re-agents in the tube so as to produce
a stain. The indicating portion of the tube carries a scale marked off in volume, or parts
per million, and the length of stain indicates the volume or number of parts per million
of the gas being tested for in the sample tested. It can simply be read off against the
scale.
The test for natural gas (methane, ethane or propane) is somewhat different. Two
tubes are fitted to the bellows. When the bellows are operated, a sample of the
atmosphere is drawn into the first tube. If methane is present, about 1 per cent of that
methane is oxidised into carbon monoxide. The carbon monoxide so produced is then
drawn into the second tube, where it reacts with a chemical reagent in that tube to
produce a brownish-green to greyish-violet stain. Neither of these tubes is marked with
any scale, because the test is intended to be qualitative only and not quantitative.
A stain approximately 5mm in length in the second tube is said by the manufacturers
to indicate a concentration in the atmosphere of 0.5 per cent methane (10 per cent of the
lower explosive limit), 0.05 per cent ethane or 0.05 per cent propane. But the
manufacturers warn that the length of the discolouration does not increase linearly with
increasing concentration, but to a lesser extent, so it is not possible to determine the
actual concentration from the length of the stain. (Z/2).

From this brief description it can be seen that the Draeger gas detector is a versatile
and easily operated device, well-suited to warn a practical engineer when a dangerous
atmosphere is or may be present. But as an instrument for scientific analysis (for which
it was never intended) the device is seriously inadequate, for a number of reasons.
The first reason concerns the cross-sensitivity of the natural gas tube to carbon
monoxide. If there is established to be no carbon monoxide in the atmosphere, there is
no problem; the absence of a stain on the natural gas tube may be taken to show that
there is no natural gas in the sample, and a stain of approximately 5 mm may be taken to
indicate 0.5 per cent of methane in the sample of atmosphere tested; a shorter stain will
then, no doubt, indicate some smaller traces of methane. But if there is carbon monoxide
in the atmosphere, the natural gas tube gives an uncertain answer, even in qualitative
terms: because the stain on the natural gas tube indicates carbon monoxide, a stain in
those conditions may be produced by methane oxidised to carbon monoxide, or by
carbon monoxide pure and simple, or by a mixture of the two. There is no way of
ascertaining precisely which gas is present, or to what extent. As the manufacturers say:
"So long as the air at the workplace contains only one contaminant, there are generally
speaking no difficulties in measuring this contaminant ... However, prob *419 lems in
measurement can arise if the air to be investigated contains more than one contaminant
at the same time ..." (C2/195).
17-71 The reality of this problem, obvious once the principle is understood, was
demonstrated by two series of tests, one carried out by Draeger at the request of the HSE
and one by Mr Edwards for the purposes of this case. In an atmosphere containing no
natural gas but 300 ppm of carbon monoxide, Draeger obtained a stain of 24 mm on the
natural gas tube (J/S/82). In an atmosphere containing no natural gas but 295 ppm of
carbon monoxide, Mr Edwards obtained a stain of 27 mm on the natural gas tube
(G/E/70). It is thus plain that if carbon monoxide is present a stain, even a long stain,
cannot be taken to indicate the presence of methane. All that can be said (and on this Mr
Edwards and Mr Shillito were agreed: G/E67; T11/5B, D, 44G) is that in a mixed
atmosphere methane has the effect of increasing the stain length.
The second source of uncertainty is that even where the carbon monoxide tube is
used to obtain a quantitative reading of carbon monoxide, the result may be significantly
erroneous. Testing a standard carbon monoxide atmosphere (free of natural gas) with the
Draeger carbon monoxide tube, Mr Edwards obtained one reading which understated the
concentration of carbon monoxide by 21 per cent and another which understated it by 15
per cent. (G/E/70). The manufacturers make no secret of the existence of a margin of
error. For the carbon monoxide tube they state the relative standard deviation as 15 to 10
per cent. (C2/207). This means that 68 per cent of results will be +- 15 to 10 per cent of
the mean value for the tubes (C2/192).
Herr Leichnitz, the manufacturers' general manager of research and development,
gave unchallenged evidence and explained that 95 per cent of results would be within a
double standard deviation, that is +- 30 to 20 per cent of the mean value for the tubes
(T8/75G, 76C). The manufacturers do not state a standard deviation for the natural gas
tubes, because this is only intended to give a yes or no answer. (T8/77D, F).
Mr Shillito was of opinion that for these tubes it would be reasonable to expect a
standard deviation of 30-20 per cent and checked this with Herr Leichnitz who, he
reported, confirmed this to be a reasonable assumption (J/S/78). The plaintiffs' solicitors

sent Herr Leichnitz a copy of this report (T11/43F), and he did not challenge the
confirmation attributed to him, and when giving evidence he was not asked to, nor did
he, repudiate it. If the natural gas tubes as well as the carbon monoxide tubes are subject
to single and double standard deviations of this order, the inevitable effect is to increase
the unreliability of readings obtained. All these uncertainties are compounded if tests are
done in a turbulent atmosphere, because the atmosphere which provides one sample may
be different from that which provides another.
The third source of uncertainty is the difference between one batch of tubes and
another. Draeger, at the invitation of the HSE, tested two natural gas tubes in each of
three atmospheres containing no natural gas, but differing concentrations of carbon
monoxide; the result was plotted as two lines. Mr Edwards made a similar test, in the
same conditions but using only one tube at each concentration. At the lowest
concentration, his result was within the Draeger lines, at the middle concentration just
outside and at the highest concentration well outside *420 (G/E/69). On his results, the
standard deviations would fall to be applied to a significantly different line.
17-72 Lastly, the stain itself is not a sharp and defined stain like mercury in a
thermometer. In the carbon monoxide tube, the stain is liable to be a bit diffused
(T8/76D): "The stain is not only brownish, but at the very end there is a green part, and
this green part may be in the range of two millimetres or three millimetres, and,
depending on the light conditions, people may consider this or may not consider this,
and all these influences are the reason for the standard deviation which we have stated".
(T8/76F). In the case of the natural gas tube, there is not even a stain as clear as the stain
in the carbon monoxide tube. (T8/77C).
In giving this account I have not (save where I have referred to him expressly) relied
on the evidence of Mr Shillito. The Judge was severely critical of Mr Shillito, and
declined to accept his evidence, save where it was confirmed by other witnesses
(judgment, p. 50F). I confess that the Judge's strictures strike me as severe, and possibly
in part the result of misunderstanding. If parts of Mr Shillito's evidence lacked
objectivity, the same charge could, with at least equal force, be laid against parts of the
plaintiffs' expert evidence. The Judge, however, made a judgment and it fell within the
area reserved to him as trial judge. I feel bound to abide by it. In what follows, therefore,
I have at no point relied on the independent evidence of Mr Shillito.
(b) Mr Towle's tests
17-73 It appears that on April 21, 1977 Mr Towle, the second defendants' safety
officer, tested for carbon dioxide, carbon monoxide, nitrous fumes and natural gas in
both the Rowton and Abbeystead headings. He reported all readings negative, except
that there was a reading of 0.5 per cent of methane by volume in the Rowton heading.
(D/331(1)).
The Abbeystead reading was taken about 6,100 metres from the Rowton portal
(about 500 metres from the Abbeystead portal) (D/336(6); T12/60A). If this reading is
reliable, there being no carbon monoxide at all, it is conclusive against the presence of
methane. But Mr Towle's evidence does not inspire confidence in his technical
competence or recollection, and he was inclined to doubt the typed, but unsigned copy,
of his report. (T12/68E). In any event, the site of the test is well away from the area in

which methane was found to be entering after the explosion and from the sandstone
anticline (J/S/98, 99, 104).
The Rowton reading, on its face, shows the presence of methane, since again there
was no carbon monoxide. This reading was shortly afterwards said to have been
misreported (D/334), and was corrected to 0.05 per cent methane. The Judge thought Mr
Stacey probably made this alteration (p. 57F), but whoever did so plainly had no
understanding of how the Draeger equipment worked, for it could not give such a result.
For reasons just given, and since Mr Towle's recollection (for what it is worth) was
that there had never been any suspicion of methane (T12/57H, 58F, 66H), this reading
must be treated with reserve. Since it was taken over two kilometres away from the
nearest point at which methane was found to be entering after the explosion (D/336(6);
T/12/60A; J/S/98, 99, 104), it is in any *421 event entirely irrelevant to this case. If the
judge attached importance to it, I do not think he was right to do so (judgment, p. 60H).
(c) Mr Wild's tests
17-74 Mr Wild was a young man, recently qualified with a Higher National Diploma
in Mechanical Engineering. He carried out a number of tests. His reports show that he
had grasped how the Draeger gas detector works and he took care to measure the stains
with a ruler in his office (T12/87D). He also maintained ventilation records which were
generally commended and suggest a high level of efficiency.
(i) May 6, 1977:
His first test was done in the presence of a representative of the first defendants
(T8/67G) in the Rowton heading about 30 metres from the face (D/335, T8/86F), and
about 3,300 metres from the Rowton portal. Mr Wild found and reported (D/335):
Mr Wild wrote a comment: "The natural gas test produced a 5 mm discolouration in
the Draeger Tube. However, this tube also indicates carbon monoxide, of which we
know there is a 20 ppm concentration. Therefore, the actual amount of natural gas
present must be less than the indicated value if any exists at all".
This observation must be correct. Mr Edwards thought his reading indicated that
there probably was not much methane in at that time (T1/163F). There need have been
none, since the reading was within the curve which Draeger achieved on the same
concentration of carbon monoxide in the absence of methane (G/E/69). The test was
anyway done well away from the nearest point at which, after the explosion, methane
was found to be entering (S/98, 99, 104).
(ii) May 10, 1977:
17-75 This test was done about 30 metres from the face in the Abbeystead heading
about 1,100 metres from the Abbeystead portal (5,500 metres from the Rowton portal).
This was the extreme southerly margin of the area in which gas was found to be entering
after the explosion.
The result was:
Mr Wild commented (D/337): "Nat. Gas probably all carbon monoxide. High nitrous
fume reading due to mucking out operation". He could very well have been right. The

natural gas stain certainly could have been caused by carbon monoxide, of which there
was more than on 6th May. The first three readings, all worse than on the earlier date,
could have been attributable to the mucking out operation.
*422 (iii) May 24, 1977:
This test was done about 30 metres from the face and about 1,200 metres from the
Abbeystead portal. It was thus within the area where methane was found to be entering
after the explosion. The reading was (D/338)
Mr Wild wrote a note recording that the ventilation had broken down, but that the
readings should get better when replacement fans started circulating. In evidence he
added that he felt on that day that the increase in the natural gas stain was due to the
increased level of carbon monoxide (T12/116B). Mr Edwards read this result as showing
that methane must have been present at this time. (T1/163C). This is not a tenable view.
It is outside the Draeger curves (J/S/77), but it is well within the manufacturers' double
standard deviation, and Mr Edwards' opinion takes no account of the uncertainties
mentioned above, none of which is capable of dispute. The only tenable view is that of
Mr Tough: "... the readings themselves are very inconclusive with regard to natural
gas ... I would have had very little idea as to what the inference of (methane) was".
(T13/39F, 40A). But he agreed, quite rightly, that methane could have been present
(T13/40A).
Dr Coats' view of this and the other tests was that while methane might well be
present, the results did not enable one to say either that it was or that it was not
(T10/118D, E; 119G; 120A,C). It is difficult to resist the view of Mr Mckenzie "... that if
there is carbon monoxide in the atmosphere and there is a positive natural gas result that
is not a satisfactory natural gas test". (T13/47F). In his view the tests proved nothing
(T13/70E, F, G). He thought that this and other results could be "principally or
completely attributable to the carbon monoxide which arose from the use of explosives
to excavate the tunnel, or from the use of diesel locomotives". (J/M/8).
Sir Alan Muir Wood supported the view earlier taken by the HSE that the results of
the tests could not be taken to give a reliable indication of either the presence or absence
of methane in the atmosphere of the tunnel. The results were equivocal (J/MW/12;
T14/86C, 129A, D, H). One is left with the conclusion that methane may, but need not,
have been present on this occasion.
(iv) May 25, 1977:
17-76 This test was done 30 metres from the Rowton face about 3,400 metres from
the Rowton portal. This was not in the area where methane was found to be entering
after the explosion.
The reading was:
Mr Wild commented (D/339): "Discolouration of Natural Gas tube was negligible (2
mm and only slightly discoloured)". Given the concentration of carbon monoxide, the
slight stain can plainly not be taken as indicative of methane.
*423 (v) June 8, 1977:

This test was done 30 metres from the Rowton face and about 3,500 metres from the
Rowton portal, outside the area where methane was found to be entering after the
explosion.
The reading was:
The carbon monoxide reading was lower here, so the natural gas stain could have
been largely or partly due to methane (T12/8G). But it need not have been. It was within
the Draeger curves (J/S/77). Like the other results so far considered, this is inconclusive.
(vi) June 9, 1977:
This test was done about 30 metres from the Abbeystead face and about 5,272
metres from the Rowton portal, in the area where methane was found to be entering after
the explosion.
The reading was:
Mr Wild wrote (D/341): "These readings were taken immediately after the miners
had returned to the face, after blasting, and approximately 12 minutes after blasting. The
ventilation at this time was not good, and the 2 stage Korfman fan was to be moved up
on 11/6/77 ...". It is noteworthy that on this occasion the carbon monoxide reading (if
accurate) was two and a half times the absolute maximum expressed in the specification,
and the nitrous fume reading was over twice what the specification permitted at this
time.
This is the result on which the plaintiffs most strongly relied. The 30 mm gas stain
was outside the Draeger curves and even outside the double standard deviation applied
to those curves. Mr Edwards said this result was consistent with there having been a
considerable quantity of methane present (T1/162G), and drew the inference that there
was methane present. (T2/29A). To Dr Whittaker this result (among others) "definitely
indicated the presence of natural gas (methane)". (G/WH/53). The stain was, however,
only 3 mm longer than the stain which Mr Edwards obtained without any methane in his
sample at all, and the result is not outside the double standard deviation line applied to
his curve (G/E/69).
17-77 There was also evidence that readings are likely to be affected by heavy
concentrations of blasting fumes. Professor Knill said (T12/7E):
"It is very clear that many of the tests carried out by Mr Wild have been affected by
blasting fumes, and in fact one of the tests, the test of 30 mm of stain, was carried out a
short time after blasting. Under those conditions the air in the tunnel would have been
difficult to see through; it would have been a fog ..."
*424 Mr Tough made a similar point (T13/22A):
"Well, this test has been done twelve minutes after blasting, and it must have been
very close to the exploded rock and it is the sort of figures I would have expected. It is
not a fair picture of the environment".
Mr Edwards acknowledged (T2/40C) that the air was changing round Mr Wild as he
took the tests. Mr Mckenzie's written comment on this test was the same as that on May
24, 1977 test (J/M/8). So was the evidence of Dr Coats (T10/118 D, E; 119G; 120A,C).
So was the report and evidence of Sir Alan Muir Wood (J/MW/12; T14/86C, 129A,
D,H).
This result cannot, on all the evidence, be properly understood as showing that
methane was, or probably was, present on this occasion. Nor does it show that methane

was not, or probably was not, present. The only conclusion fairly open is that methane
may have been present.
(vii) July 11, 1977:
This test was done 30 metres from the Rowton face and about 3,800 metres from the
Rowton portal. This was outside, but not far outside, the area in which methane was
found to be entering after the explosion. The result was (D/342):
The readings were taken after the mucking out operation and before drilling started.
The result is within the Draeger curves and plainly cannot be taken to indicate the
presence of methane.
(viii) August 22, 1977:
This test was carried out about 30 metres from the face in the Rowton heading, about
4,799 metres from the Rowton portal. It was within the area where methane was found
to be entering after the explosion. The result was (D/344):
Mr Wild made no written comment at the time, but in evidence explained his
contemporary reaction (T12/95C): "... as the carbon monoxide level rose and dropped,
the natural gas stain length rose and dropped, which further reinforced my belief that the
natural gas reading was in fact coming from carbon monoxide.".
All four readings on this test were the same as for the May 24. The parties' experts
made the same points. The conclusion I have expressed above in my judgment applies
here also.
*425 (ix) October 24, 1977:
17-78 On this date Mr Wild made three tests. To appreciate their significance some
explanation is called for.
The Rowton drive had progressed more quickly than the Abbeystead drive. The
Rowton drive was, accordingly, halted on September 14, 1977. It had then reached a
point about 4,293 metres from the Rowton portal. The Rowton gangs were then put to
work cleaning the tunnel ready for concreting. But they started on this work, not from
the point they had reached, but from about 3,300 metres from the Rowton portal, that
being the prospective mid-point of the completed tunnel (T8/12F). They then worked
backwards towards the Rowton portal. The ventilation ducting was then disconnected so
that it would provide ventilation at the place of work, some distance back from the face,
and not at the face itself because no one was working there (T12/110F). The result was
that for a period after September 14, the growing length of tunnel between the face and
the workplace was unventilated.
It appears that someone, probably an inspector, made a report to Mr Boyd that the
atmosphere in this length of tunnel was bad (T7/135D). As a result, he made a visit to
the face on October 20. I shall return to that visit below.
His diary entry for that date records (D/432): "Air in 'dead' end is very poor. Very
little oxygen and matches will not burn. Allan Gibson getting compressed air laid on.
Spoke to Rex and to JRS (Mr Stacey) on the subject".
On the following day he wrote to Mr Stacey (D/432(1)):

"I am getting increasingly concerned at the lack of oxygen in the Rowton heading.
This is particularly noticeable in the 'dead' end length beyond the point at which
concreting of the tunnel sub-invert is taking place, but there is also very little fresh air
reaching the end of the ducting. I understand that it is intended to 'freshen' the far end of
the heading using the compressed air line. Please ensure that this method is adequate
before rib-resetting in this length is started ..."
The freshening was evidently not regarded as very effective.
On October 25, Mr Stacey reported at a meeting that owing to the poor ventilation it
would not be possible for a gang to work beyond the point of sub-invert concreting as
intended (D/433(3)). A week later, on November 1, it was agreed that the Rowton team
could resume rib-setting towards Abbeystead as soon as breakthrough occurred and the
ventilation improved (D/433(5)). Mr Boyd inferred from that entry (T8/33C) that the
attempts to ventilate with the compressed airline were not very effective, and it was
accepted that conditions were not appropriate for continous working within that length.
Asked about the ventilation at the time of the tests on October 24, he said (T8/31B):
"It would have been on as far as the place of work, but I think I am right in saying
that one of those tests was at the place of work and then two were further on into the
tunnel where there was no full ventilation, but by that time there had been a response to
my request for air to be put in, which was the basis of taking an airline in and allowing
the release of a certain amount of fresh air from the compressed air system; so all one
can say is *426 that there was very limited ventilation in that heading beyond the place
of work at that time".
17-79 Mr Wild's first test was done at the place of work, about 2,000 metres from the
Rowton portal. He found 5 ppm of carbon monoxide and a very high reading--0.8
volume per cent--of carbon dioxide, but did no other test.
His second test was done about 3,500 metres from the Rowton portal. He found 5
ppm carbon monoxide, 0.5 volume per cent carbon dioxide, and no nitrous fumes,
natural gas or hydro-carbons.
His third test, a short distance back from the face, was done at a place where
methane was found to be entering after the explosion, in the heart of the sandstone
anticline. Mr Wild found 0.3 volume per cent of carbon dioxide, but no carbon
monoxide, no nitrous fumes, no natural gas and no hydrocarbons. Mr Wild recorded
(D/345):
"Air cocks have been left on since 20th October 1977 and this has got rid of most of
the stale air. Concern over the amount of Carbon Dioxide in the air at the place of work
is noted. More air valves are being left open at this place and this value should drop. No
air as yet is being pushed into the tunnel by the Korfmann fan unit".
Some doubt must attach to Mr Wild's belief that the air cocks had got rid of most of
the stale air. The carbon dioxide reading had never been exceeded before this date, and
had been equalled only once, in the appalling conditions on the June 9. Mr Edwards
agreed that the air did not appear to be particularly fresh (T2/42F).
The first defendants placed great reliance on this result. Since there was no carbon
monoxide, the negative natural gas reading was a conclusive finding that there was no
methane in the atmosphere sampled. The test was done in the very area where gas was
leaking into the tunnel after the explosion. And it was done after five weeks without

ventilation, and after only a few days of ineffective ventilation, so that methane, if
entering, had every chance to accumulate.
The plaintiffs' experts did not accept these points. Mr Edwards thought the methane
could have been in the roof at the dead end (T2/103E). Dr Whittaker thought that it
would fill the roof and the cavities, and then gradually make its way further away from
the heading; it would occur as a finely-defined layer at the crown area (T3/113F). Mr
Haswell would not trust one result (T4/71A).
The defendants' experts took a different view. Dr Coats said that if there had been a
continous emission of methane, it would certainly have been recorded there (T10/136D).
Mr Tough thought that after blasing had ceased for 40 days, the absence of methane on
this test was fairly conclusive (T13/44H). Mr Mckenzie concluded, making allowance
for the fact that the tunnel was unlined at the time, that there was no methane there
(T13/57C, G). The volume of air released from the air cocks would not be sufficient to
delaminate the methane and move it all (T13/68B).
Sir Alan Muir Wood's view was similar (T14/131B): *427
"Q. Just in coming back to the October test, at the top end of a tunnel of a rising
gradient--88 metres from the point where it it temporarily stopped--with only little
ventilation for the past 30 days, is that not where you would expect to find methane on
one of these tests with the Draeger tube, if ever you were going to? (A) I think that is
right, yes".
This is not a field in which anything can be stated with certainty. It is, of course,
possible that the methane had gathered in the roof (although there was no roof fall at this
point: drawing 4/4) and had thus been missed by a test at head height (T12/120F). But as
a matter of probability, the bare facts of the situation strongly support the first
defendants' submission. If methane was in truth leaking into the tunnel from the
sandstone anticline in September-October 1977, it is an extraordinary thing that no trace
of it was discovered on this test. I cannot accept the Judge's dismissal of this test as
justified, and his reference to "four days of successful ventilation with the air cocks"
before Mr Wild did his tests (judgment, page 63F), simply does not do justice to the
evidence.
(x) After break-through
17-80 After break-through and in response to a complaint by Kluczynski, in
circumstances I shall mention below, Mr Wild did a test in the Abbeystead section of the
tunnel. Where exactly he did the test is not clear. He made no written report which has
survived, but he regarded the result as satisfactory and as giving rise to no problem
(T12/99D).
(d) Other Indications
There are three other matters which deserve mention here.
(i) Mr Boyd%s visit on October 20, 1977.
When Mr Boyd visited the Rowton dead end on 20th October, he struck a match to
see if there was enough oxygen for the match to burn. The diary entry already quoted

recorded the outcome. If there had been any suspicion of methane, this would have been
a suicidal act. Dr Whittaker thought it an "astonishing" thing to do (T3/97H). Mr
Haswell thought it "absolutely mad", and considered that Mr Boyd was very lucky
(T4/71D). Sir Alan Muir Wood thought the reason why Mr Boyd did not have a very
unpleasant experience probably was that there was no methane there (T14/130C). Mr
Edwards agreed that if methane had been present, it would have been the end of Mr
Boyd (T2/47E). It is not in doubt that to light a match in the presence of an explosive
mixture of methane and air is to risk a major explosion--as this case unhappily
demonstrates all too clearly. The incident shows how completely this well-qualified
engineer failed to foresee a dangerous accumulation of methane. More importantly, for
present purposes, the fact that Mr Boyd did not cause an explosion shows that there was
no such mixture where he lit the match, even though the dead end had been completely
unventilated for five weeks, and even though the incident occurred within the anticline
where methane was later found to be *428 entering. This must serve to reinforce the
conclusion already reached on the October 24 test.
(ii) Mr Wardle's tests
17-81 Mr Wardle was a young graduate civil engineer employed by the second
defendants as a shift engineer on the tunnel. It was his first job and he started in
September 1977, primarily working from the Abbeystead portal. He familiarised himself
with the Draeger equipment, which he found in the site engineer's cabin (T12/125C, E),
and whiled away the tedium of the night shift by testing the atmosphere in the tunnel
(T12/132G). Some of these tests were in the Abbeystead drive (half way into the drive
and near the face) before breakthrough (T12/125H), some in the Rowton drive between
hole-through (November 4 1977) and the official break-through ceremony (November
10) (T12/126G), and some after break-through between the mid-way point in the tunnel
and the Abbeystead portal (T12/128B). It is not clear how many natural gas tests were
done, but perhaps two before break-through and four after; possibly one or two more
(T12/133B). He obtained no results which caused him concern; he concluded that they
did not seem to show anything (T12/126B, D; 127D; 128C).
When criticising the defendants' lack of liaison, the learned judge refers to Mr
Wardle's use of the equipment as an occasional hobby (judgment, p. 23D). He again
summarises the effect of his evidence at p. 55G-H of his judgment when considering the
adequacy of the testing system. The judge does not refer to the evidence when
considering whether methane was present during construction. In my view the evidence
is relevant. The tests were done by a well-qualified engineer in the area where, on postexplosion evidence, methane was most likely to be found. The results were negative. On
its own, the evidence is of course far from conclusive, but as part of a picture it supports
the inference that there was not methane in the tunnel during construction.
(iii) Physical signs
17-82 Where methane is suspected, elaborate precautions are taken when
constructing a tunnel to eliminate any source of ignition which could cause an explosion.
In this tunnel, because methane was not suspected, no such precautions were taken and
the sources of ignition were plentiful. The equipment used underground was not required

to be and was not flame-proofed. Smoking was freely permitted (T1/27B; T12/39B,
95D). Diesel locomotives were, contrary to the specification, used underground (D/78;
T8/69E). Hot cutting and welding were carried out, even in the crown of the tunnel
where methane, if present, would accumulate (T8/41A, 60G, 61C). Ordinary explosives
were used, although where methane is suspected, as Mr Haswell pointed out (G/H/7):
"If the tunnel is being advanced by traditional 'drill and fire' methods all explosives
must be 'permitted explosives' which are certified to a standard of safety against the risk
of igniting methane-air mixtures".
*429 Flash cameras were used (T12/130C). There was, on one occasion, a fire in the
tunnel (T8/40B).
The question arises whether the absence of any explosion during construction throws
light on the likelihood of methane being present at that time. Mr Edwards saw no reason
why there should be an explosion in those circumstances; he did not accept an explosion
was inevitable; he would not necessarily expect one, because the tunnel was well
ventilated (T2/79B, C, D). It is true in general the tunnel was very well ventilated, but
the evidence shows that there were occasions when it was not: Mr Wild noted some
occasions in extracts already quoted; Mr Mannion, one of the first defendants'
inspectors, noted others some months later (D/484(1); 484(2)).
Professor Knill thought some incident or explosion almost inevitable (T12/11F). Mr
Tough thought that with so many sources of ignition, it was highly unlikely that there
was present methane gas in any quantity during this period (J/T/7, 10). Mr Mckenzie
shared that view (J/M/11,12). Sir Alan Muir Wood thought it probable that ventilation
might prevent an explosive mixture building up (T14/88B), and thought an incident less
likely if the methane was entering the tunnel dissolved in water (T14/174G), but at no
stage of the case was there any challenge to Mr Shillito's clearly expressed and amply
demonstrated view, based on the HSE readings that, after the explosion, the methane
was very largely entering in gaseous form.
The negative evidence was not, however, directed only to showing the lack of an
explosion. Dr Artingstall found that the samples of water taken from spouts in the tunnel
after the explosion, when bottled, were fizzy like mineral water (T6/134G). Several
witnesses had experience of seeing or knew of methane bubbling up through the floor or
even through the lining of concrete: Mr Arah T10/3; Professor Knill T11/109E; Mr
Tough T13/24E; Sir Alan Muir Wood T14/97A. Sir Alan opined that if methane were
bubbling into this tunnel "you might notice it, although in the quantities concerned I do
not think I can say definitely that you would notice it". (T14/174D). There was,
however, no evidence of anything bubbling into this tunnel, save on one occasion when
Mr Boyd investigated and found the bubbles to be caused by a compressed airline
(T8/25D).
There was further evidence that if methane had been flowing into this tunnel during
construction, it would probably have made itself known to the tunnellers by wet patches
at the drill hole (T9/42C), secondary explosions on firing shots (T9/42E), spontaneous
ignitions and flashes (T10/4C; T12/12E, 14E, 15C); and palpable blows of air (T12/14E,
15C). None of these signs was ever observed.
17-83 This was serious evidence given by experienced and well-qualified men whom
the Judge did not find were attempting to mislead him. I do not, with respect, think the
evidence negative though it is, can be dismissed as the judge does (at p. 67H):

"The lack of minor explosions, despite the fact that smoking was permitted, burning
and welding took place and the equipment was not flame-proofed, does not show the
absence of methane. For it is common ground that the amount of ventilation provided,
despite the inadequacy of the specification, *430 was very high, generally efficient and
well able to disperse the comparatively low levels of methane that were entering".
I agree, of course, that this evidence alone does not "show the absence of methane",
but it is evidence to put into the scales and it tends to support the first defendants'
contention that methane was not present.
(e) The evidence of Dr Artingstall and Mr Cole
17-84 The learned judge relies (judgment, p. 62H), on the undisputed evidence of Dr
Artingstall and Mr Cole in relation to post-accident entry of methane into the tunnel,
referring to Mr Shillito's convenient Figure 7 (J/S/84). He observes that at all three of the
places where Mr Wild's methane readings were 10 mm or more, methane was then found
to be entering the tunnel, and observes: "I reject the argument that this was merely
coincidence" (p. 63C). I respectfully agree that Mr Wild's high readings were not the
result of coincidence; it is clear from my account of the tests that the three longest
natural gas stains were found when there were the three highest concentrations of carbon
monoxide. This may, no doubt, have been due to the harder and tougher blasting
conditions in the Abbeystead drive. But the evidence of Dr Artingstall and Mr Cole adds
nothing to the evidence of the tests themselves, which I have already sufficiently
discussed.
A question also arises why, if Mr Wild's three high readings are to be regarded as
significant, the negative test on October 24, in the Rowton dead-end and Mr Boyd's
lighted match test on October 20 are not.
The learned judge addressed himself to this problem. He said (p. 63C):
"It is true that the highest level of methane entry found by Dr Artingstall and Mr
Cole was at three points between chainages 4300 and 4500, and that neither Mr Wild's
test on October 24, at about 4200, nor Mr Boyd's striking of matches in the Rowton
heading on October 20, 1977, elicited the presence of any methane. But methane is
lighter than air and would tend to layer at the top of the tunnel, which ran uphill towards
Abbeystead and which was 10 or 12 feet high. The fact that the air was very poor where
Mr Boyd was suggests that it had not been recently disturbed by ventilation. This is not
surprising as the men were, at that time, working over 2 kilometres away, and 4 days of
successful ventilation with the air cocks had taken place before Mr Wild carried out his
tests.
"Three other matters which are not in dispute bear on this aspect. First, breakthrough
took place, as I have already indicated, at about chainage 4295, so that the highest levels
of methane post-accident were found on the Abbeystead side of the breakthrough.
Secondly (which may or may not cancel out the first matter), the tunnel had not, in
October 1977, received in this vicinity the concrete lining which was in place when the
post-accident tests were taken: it is agreed that the lining might very well affect the
points of entry into the tunnel because methane, whether as gas or in water, will follow
the easiest path. Thirdly, it was found after the accident *431 that the place and quantity
of methane entry varied significantly from day to day. Having regard to all these matters

there is, in my judgment, little if any weight to be attached to the fact that methane was
not found in the Rowton heading on two occasions in late October 1977".
Various points arise on this. Although the greatest methane entry was found after
explosion on the Abbeystead side of the break-through point, a significant entry
occurred on the Rowton side. It is true that methane is lighter than air and would tend to
layer at the top of the tunnel, which ran uphill towards Abbeystead and which was 10 or
12 feet high. This is why the gas would tend to accumulate in the Rowton dead-end and
why the October tests are significant. The evidence plainly was that the air where Mr
Boyd struck his match had not been disturbed by ventilation at all for several weeks. The
evidence also shows that there had not been four days of successful ventilation. Such
ventilation as there was could only mix, not extract.
It is true that the tunnel lining might affect the points of entry because methane,
whether as gas or in water, would follow the easiest path. But this overlooks a more
important point, which is that the lining of the tunnel would have the effect of excluding
much of the methane which (assuming a constant source) would enter the unlined
tunnel. Thus, if the methane source was roughly the same before and after the explosion,
there would have been more methane in the unlined tunnel than was found in the lined
tunnel after the explosion.
One might be excused for regarding this as simple common sense, even without
expert evidence to that effect (Mckenzie T13/70C, 74C). But the reasons were fully
explained. Before the tunnel is lined, "Methane is free to flow into the tunnel through
any crack or fault which is underlying the tunnel. There is no impediment whatsoever of
the flow of methane into the tunnel". (Knill T11/109D). Once the tunnel is lined, if the
gas finds no convenient point of entry to the tunnel, it will bubble on upwards. (Knill
T11/108F, H, 109A).
"Why should the bubble choose to dive through a narrow 1 mm or 2 mm crack in a
concrete lining when it can simply float up through the water? There is a choice of what
the methane can do ... there are plenty of cracks through which the methane can flow
into the tunnel. There are a limited number of cracks in the concrete lining through
which the methane can flow into the tunnel, and there is no reason mechanically for the
methane to remain outside the tunnel waiting to squeeze through a crack into it. It does
not get in; it just rises and continues rising and rises to the water surface which is so
close above the crown of the tunnel". (Knill T12/ 13C, E).
A substantial fraction of the methane leaking from a reservoir could thus miss the
lined tunnel (Knill T11/109C). If this is so, as to a greater or lesser extent it surely must
be, it makes the negative result in the unlined dead-end even more significant. The
evidence does not, I think, justify the judge's statement that after the accident the place
of methane entry varied significantly from day to day, certainly so far as the major
gaseous entry was concerned (J/S/98). But the *432 quantity did. This adds to the
significance of the October tests, because there had been a long period during which a
number of different atmospheric pressures and rates of entry would have been
experienced. The conclusion that little or no weight should be attached to the fact that
methane was not found in the Rowton heading on two occasions in late October 1977 is,
in my judgment, unsustainable.
(f) The evidence of the experts

17-85 The judge held (judgment, p. 64D):


"Fourthly as to the probability of methane presence during tunnelling, the expert
evidence is overwhelmingly in favour. In addition to the plaintiffs' experts, Dr Coats and
Sir Alan Muir Wood both expressed the view that methane was probably present at that
time. Mr Tough said specifically in relation to Mr Wild's test of 24th May that this could
have indicated that methane was present above 0.5%. Mr Mckenzie thought it
unreasonable to conclude that the Draeger results were principally or completely
attributable to carbon monoxide".
It is certainly true that the plaintiffs' experts, Mr Edwards and Dr Whittaker, held and
expressed the view attributed to them. Both persisted in regarding the finding of a
natural gas stain on the Draeger test as indicative of natural gas. Thus, for example, Dr
Whittaker in Appendix 4 to his report (G/WH/108) which the Judge elsewhere appears
to adopt (judgment, page 62D), says: "My interpretation of what the manufacturer states
is that any indication of a stain on the tube is to be taken that natural gas is present"
(G/WH/108), and "My interpretation of the manufacturer's operating instructions for the
natural gas test performed by Wild is that there were eight occasions when natural gas
was indicated" (G/WH/110). I cannot accept that this is, on a proper understanding of
the Draeger equipment, a tenable view.
Dr Coats wrote of the tests in his report (J/C/7) that: "Three did not find natural gas
to be present and although the concentrations in other tests are given as mm of
colouration of Draeger tubes I believe them to be low values".
It was put to him in cross-examination that he was there accepting that methane was
present. He answered: "I think you can accept that I believe that methane might well be
present, but if they were present they were low values". (T10/120A). His reiterated view
was that the tests permitted no conclusion to be drawn whether methane was present or
not: T10/118D, E; 119G; 120C. His cross-examination included this passage:
"Q. Common sense would lead one to conclude, would it not, that the test at the time
probably did show methane? (A) Because you found them afterwards?
Q. Yes. (A) With hindsight that may be a connection.
Q. It is a reasonable conclusion, is it not? (A) It is not an unreasonable connection".
*433 The matter was left there. In my view these answers taken in isolation, and
without regard to the many other relevant considerations (such as the October test, on
which Dr Coats' view was clear) cannot be treated as an expression of opinion that
methane was probably present during construction.
17-86 Sir Alan Muir Wood, as already noted, regarded the test results as wholly
inconclusive (J/MW/12; T14/86C, 129 A, D, H). He did express the view that methane
was probably entering the tunnel during construction (T14/86G). He had, however, one
reason only for expressing that view, namely that he could not accept Professor Knill's
account of the mechanism of methane entry (T14/86H, passim; 176B). That is a matter
to which I come in more detail below. For the present it is enough to note that Sir Alan's
view had nothing to do with any case advanced by the plaintiffs, or adumbrated in the
expert report submitted by Sir Alan on behalf of the third defendants, who called him.
Mr Tough accepted that on May 24, there could have been methane above 0.5 per
cent of the atmosphere (T13/40A) because, as he made very plain, the positive readings
permitted no inference to be drawn whether methane was present or not (T13/39F, 40A).
He was not supporting the plaintiffs' contention that it was present. Mr Mckenzie

thought it was wrong of Mr Wild to conclude that methane was not present (T13/61D),
but that was because he thought the positive readings were inconclusive in the presence
of carbon monoxide: "I don't regard them as tests of anything ... I draw no conclusion
from them ... They prove neither one thing nor another ... They do not prove anything ..."
(T13/70E, F, G).
In my view, the expert evidence simply cannot be described as overwhelmingly in
favour of the presence of methane during tunnelling.
(g) Mr Kluczynski
The judge attached considerable weight to the evidence of Mr Kluczynski. He said
(judgment, p. 64G):
"Fifthly, there is the evidence of Mr Kluczynski. He is a miner with 21 years
experience, five of them with the second defendants prior to this contract and he had
worked testing for gas in coal mines. He said that he suspected the presence of methane
on three occasions. The first was about two months after breakthrough at a point about
100 metres from where a lot of water was coming in; there was also a fall of roof leaving
a void about 100 metres from where the water came in. He identified the place as being
about two miles from Abbeystead and at about halfway along the tunnel. He said: 'I
suspected methane because I got terrible headaches and in 21 years experience I can
tell--I don't need equipment'. He complained about three times to his shift boss, Mr
Quinlan. Mr Quinlan cannot recall any conversation with Mr Kluczynski about methane,
but he was first asked to remember in 1986.
Mr Laing, a labourer of the second defendants, encountered no trouble with methane
and, so far as he could recollect, no one else complained about it. Mr Mannion, the first
defendants' Inspector of Works, said that *434 though he knew Mr Kluczynski and Mr
Plasczyk (another miner who is in Egypt and whose evidence, such as it was, was
admitted under the Civil Evidence Act by way of video recording of part of a television
programme in 1985), no complaint was made to him and he would have investigated it if
he had known about it. Mr Shillito produced an extract from a dictionary of chemistry
suggesting that headache is not usually a symptom of exposure to methane, but there is
other literature to the contrary (see H.1, page 212).
17-87 I have no hesitation in accepting Mr Kluczynski's evidence and finding it
significant for a number of reasons. First, he gave every appearance of being an honest
and straight-forward witness, and very soon after the explosion, certainly by mid-July
1984, he had made a statement about his complaints. Secondly, his account is at least
consistent with, and to a very limited extent corroborated by, what Mr Plasczyk said.
Thirdly a test, albeit negative, was carried out by Mr Wild, after breakthrough, entering
from the Abbeystead end at a point where miners were working, specifically as a result
of a complaint about gas by a miner. I accept Mr Lindsay's submission that it was
probably Mr Kluczynski's complaint which triggered his test. Fourthly, the tunnel
section drawing 4/4 shows that at about chainage 4275, that is just over 2,300 metres
from Abbeystead, there is a point where heavy water ingress was encountered, and about
300 metres away towards Rowton there were two falls of roof. That point of water
ingress is at the crest of the anticline and is very close to the point where, after the
explosion, the highest concentration of methane in water was found to be entering the
tunnel".

The first defendants did not challenge the truthfulness of Mr Kluczynski. He made a
complaint during construction which prompted Mr Wild's test after break-through. He
voiced his complaint in a television programme shortly after the explosion. He was a
very experienced miner. But his evidence is not without problems. He was capable of
contradicting himself flatly. On the television programme he said (A/212): "... and
everybody say well that's it's every tunnel got a gas more or less", which he at first
affirmed in evidence (T1/28C) before going on to assert (T1/29C): "No, that's what I
said, not other men. What I say, every tunnel got a gas, more or less. Nobody else; only
that what I say".
At first (T1/27C) he remembered Mr Laing as a member of his team; later he
thought he did not remember his name T1/28H). At one point he appeared to be saying
there had been six complaints recorded in writing (T1/19B); at another, one only
(T1/23B). More significantly, the methane headaches he described were outside the
experience even of such experienced men as Dr Artingstall (T6/137B-E), and Mr
Thompson (T6/111F-112B), whereas carbon monoxide is a well-known cause of
headaches (Dr Whittaker T3/34B; J/S/110) as is carbon dioxide (J/S/109), and lack of
oxygen (Tough, J/T/9). The sole reference which could be found in the literature was to
a delayed reaction headache not unlike a hangover (H1/212) which is quite unlike the
headache which Mr Kluczynski described (T1/40B). I have some doubt whether he
could reliably diagnose that his headache was caused by one colourless odourless gas
rather *435 than another, or lack of oxygen. But the judge was convinced by his
evidence, and it may be that an experienced miner develops a sixth sense in these
matters. So I accept his self-diagnosis and turn to consider what he said.
17-88 When Mr Kluczynski's complaint was first pleaded by the plaintiffs, it was
said to have been "shortly after the two ends of the tunnel had joined". (A/83). In
evidence he put this about two months after break-through (T1/19E, 39B). He was
understandably hesitant about dates, but it looks as if the incident was in very early
January 1978 or thereabouts.
When his complaint was first pleaded, Mr Kluczynski was said to have been
working in the area of a heavy fall about 2 kilometres from Abbeystead (A/83). In
evidence he was clear that the point was about two miles from Abbeystead, about halfway through the tunnel (T1/20B, C, D). This would put him at about chainage 3,300,
midway between the two portals.
The most emphatic feature of Mr Kluczynski's evidence was that he had at the time
of his complaint been working in an unventilated cavity caused by a massive roof-fall. It
had taken three weeks to clean up and pack the void, which was 30-35 feet high, with
timber and cement (T1/19F, G). There was a lot of work involved: "It has all been
covered by rings and corrugated tins--all area because there was a bad fall, and we got to
support with the rings--metal rings--every two foot, rings, and covered with corrugated-area with corrugated sheets" (T1/21F).
Mr Kluczynski made reference to an entry of water about 100 metres from the roof
fall (T1/20A) but his evidence on this point became somewhat confused (T1/20F-G) and
it is not altogether clear whether the entry of water was said to be on the Rowton or the
Abbeystead side of the roof-fall. It does, however, appear that at an earlier stage he had
described the water as being some short distance further into the tunnel than the roof-fall

(G/E47). Since he was a member of an Abbeystead gang, I assume he was viewing the
tunnel from the Abbeystead portal.
Although Mr Kluczynski said he had complained three times, it was the last of these
complaints which was recorded in writing (T1/34H, 23B), and which presumably
prompted Mr Wild's test. Mr Kluczynski was sure that the testing was not done in the
right place: "He never find this gas if he not know where to look for it" (T1/35C). His
suspicion of gas persisted, he said, for about three months: "... for about three months I
expected gas there, and I tried to find it and prove there is gas there, but nobody wants to
know". (T1/21B).
Very little assistance is, as the judge said, gained from Mr Plasczyk. Referring to the
HSE report, he said he was not aware what sort of a gas was discovered (A/213), so it is
not clear that his statement specifically related to methane.
The Judge identified the roof-fall described by Mr Kluczynski as one or other of two
roof-falls shown on the first defendants' contemporary record drawing 4/4 between
chainages 3900 and 4000. There are there said, on the drawing, to be local shear zones.
That identification is open to certain objections:
(i) These roof falls are not about two miles from Abbeystead.
(ii) They are not about half-way into the tunnel.
*436 (iii) They do not appear to be of unusual length or severity.
(iv) They are not associated with means of support used (infrequently) in the most
difficult sections of the tunnel but with the ordinary steel ribbing which was almost
continous in the Abbeystead heading inwards of the steel lining.
(v) The water identified by the Judge at chainage 4275 is on the Abbeystead side of
the roof-fall and not, as Mr Kluczynski's earlier statement appears to have suggested, on
the Rowton side.
These objections make the learned judge's location of the roof-fall somewhat
unconvincing.
17-89 It is salutary to return to Mr Kluczynski's evidence and the drawing. The halfway mark in the tunnel is chainage 3300. That is about two miles from the Abbeystead
portal. Just on the Abbeystead side of that point there are two areas of roof-fall, each of
which is much longer than any other in the Abbeystead drive. The vertical height of the
void is not shown on the drawing, but two major faults are illustrated, and the strata are
described as shattered in the fault zone, which would plainly be conducive to roof-fall.
There are, at that point, to be found the most concentrated areas of extra reinforcement
to be found anywhere in the Abbeystead drive. If the incident indeed occurred shortly
after break-through, this is where the Abbeystead gangs might well have been working,
since the tunnel was cleaned ready for lining from the mid-point outwards.
This identification does not fit the evidence perfectly because there is no record of
water entry on the Rowton side of these roof-falls. But nor is there on the Rowton side
of the roof-falls identified by the Judge. If, contrary to what Mr Kluczynski appears
earlier to have said, the water was on the Abbeystead side of the roof-fall, then there was
water much closer to the Judge's roof-falls than to those at the midway point, but it was
not within 100 metres. The only place in the Abbeystead drive where heavy roof works
are within approximately 100 metres of water entry is at about chainage 5800-5900,
which is scarcely any distance into the tunnel.

The plaintiffs strongly supported the judge's location of the roof-falls, which had the
advantage of putting Mr Kluczynski's work-place within, although even then only just
within, the area where methane was found to be entering after the explosion. In my
judgment, however, that location is not supportable on any objective appraisal of the
evidence given by Mr Kluczynski. For reasons already given, the approximate midway
point which he identified must, on the balance of probabilities, be a more likely location,
even though it puts his work-place half a kilometre from the nearest place at which
methane was found to be entering the tunnel after the explosion.
It was not suggested that methane would have been leaking from a reservoir into the
tunnel at the midway point during construction, but not at the time of the explosion. The
sand-stone anticline, which provides the pathway for the leaking methane, is not to be
found at the midway point. If the leakage had been in the same area during construction
as after the explosion, there is no reason *437 why the methane should have travelled to
the midway point: being lighter than air, methane would tend to travel uphill towards
Abbeystead and not downhill towards Rowton, particularly since, after break-through,
there was forced ventilation from Rowton towards Abbeystead.
17-90 This leaves (accepting Mr Kluczynski's evidence at face value) only one
possible inference: that the methane which caused his headaches was stress- relief
methane. This plainly could have been caused by a massive roof-fall, or by drilling and
blasting. This is not inconsistent with Mr Wild's negative test, because he did not test in
any void or cavity and (wherever he tested) did not know there was a void or cavity
there. (T12/120C). It is consistent with Mr Kluczynski's belief that the tester would not
find gas because he would not know where to look. It is consistent with the limited
period during which Mr Kluczynski entertained his suspicion; he does not claim to have
suffered when the tunnel was blasted through the heart of the anticline, or after this
period, although he worked on the tunnel for four years and never missed a shift
(T1/24A). It is consistent with the absence of complaint by any other worker, except Mr
Flascyk. It is not easy to reconcile Mr Kluczynski's evidence with the absence of
explosions caused by flame-cutting in the crown of the tunnel (which he denied was
done to adjust the rings: T1/38C), but that is a difficulty inherent in his evidence as a
whole, and not in the inference of stress-relief methane.
(h) Interim conclusions
17-91 Pausing at this point, I think the following conclusions may be reached:
(i) Mr Towle's readings are of doubtful reliability and no significance.
(ii) Mr Wild's positive readings are inconclusive. At their highest for the plaintiffs
they show that methane may have been present on some occasions, but they do nothing
to support the inference that this was leaking reservoir rather than stress-relief methane.
(iii) The evidence of Dr Artingstall and Mr Cole does no more than demonstrate the
cross-sensivity of the Draeger natural gas tube to carbon monoxide.
(iv) The expert evidence adds nothing to a proper understanding of the Draeger tests.
(v) Mr Kluczynski's headaches, if methane-induced, are likely to have been caused
by stress-relief methane and unlikely to have been caused by leaking reservoir methane.
(vi) Mr Boyd's match test on October 20, suggests that there was no accumulation of
methane in the Rowton dead-end on that date.

(vii) Mr Wild's test on October 24, suggests that there was no accummulation of
methane in the Rowton dead-end on that date.
(vii) Mr Wardle's tests before break-through, between hole-through and *438 breakthrough and after break-through suggest that there was no accumulation of methane
when and where he tested.
(ix) The absence of explosions during tunnelling despite plentiful sources of ignition
points against an accumulation of methane during construction.
(x) The absence of any observed phenomena associated with the entry of methane
points against the entry of methane during construction.
These conclusions, taken together, in my view justify only one overall conclusion,
that if there was any methane in the tunnel at all during construction, it was in all
probability stress-relief and not leaking reservoir methane. Save for the complaints of
Mr Kluczynski and Mr Plasczyk, there was no positive reading, no complaint and no
incident of any kind after August 1977, although it was almost two years before the
tunnel was handed over.
In my judgment the first defendants are entitled to a finding that on the balance of
probabilities methane was not leaking from a reservoir into the tunnel during the
construction period. That finding is not precisely contrary to that of the judge, because
he did not distinguish between stress-relief and leaking reservoir methane. But if, as I
think, it is correct, it means that even if (contrary to my view) the first defendants owed
the plaintiffs a duty of care, the first defendants' failure to insist on proper testing was
not causative of the plaintiffs' damage; even the most scrupulous testing would not have
elicited an unforeseen danger which was not present at the time of construction.
If however, contrary to my view, it is impossible at this stage, to draw any
conclusion whether, on the balance of probabilities, methane was leaking into the tunnel
from a reservoir during construction, it is necessary to consider the probable mechanism
of such leakage for any light it may throw on the question.
(i) The mechanism of release from a leaking reservoir
17-92 We start with a single, unassailable fact, that in and since May 1984 methane
has leaked from a reservoir into the tunnel.
The possibility was considered in evidence that the reservoir lay above the tunnel
and leaked down into it. This possibility was firmly rejected. The strata above the tunnel
were too heavily faulted to provide a suitable cap; if, as was shown, surface water could
permeate down into the tunnel, methane could escape upwards to the atmosphere
Williamson T1/96B; Knill J/K/18; T11/95F, G; 96D, G). Mr Williamson expected the
reservoir to be at a greater depth than the tunnel (T1/95D). The tendency of methane,
whether as a gas or in solution, would anyway be to rise, since the gas is lighter than air
and it only remains in solution under pressure.
The question was raised whether the tunnel could have been driven into the reservoir
itself. The geologists were at one in rejecting this, on the ground that if it had happened
there would in all probability have been a major explosion there and then (Williamson
T1/107F; Knill T11/100A).
It was effectively common ground that the reservoir, formed many millions of years
ago, could not have been leaking upwards to the level of the tunnel throughout that time,
for the simple and obvious reason that the reservoir would *439 have been exhausted

years ago (Williamson T1/108E, F; Eastaff T5/122B, C; Knill J/K/38; Sir Alan Muir
Wood 14/102G). So what can have triggered the release of the methane from the
reservoir where it had been locked for geological time?
Dr Whittaker referred to the possibility of a major tectonic disturbance which could
result in disturbing the stability of such a reservoir and cause it to emit, so that it would
find its way to a higher level and become trapped there (T3/101G). But the plaintiffs'
geologist, Mr Williamson, described the possibility of such a tectonic event as
"extremely remote in the UK" (T1/96D). Having discussed the history of tectonic
disturbance in this country at some length (T11/89C) (passim) Professor Knill concluded
that there was no possibility of movement in historical times which would have had any
effect on the cap rock so far as the release of gas was concerned (T11/94A). This opinion
was not challenged.
Consideration was given to the possibility that the drilling of the Whit Moor
borehole might have triggered a release of methane into the tunnel. Mr Wheeler ruled
this out, having established a large number of faults between Whit Moor and Wyresdale
(T5/154H, 168F, 180G; T6/3H). Professor Knill also ruled it out for the same reason
(T11/99G). The possibility had no supporters.
Professor Knill eliminated, as being too long-term, the possibility of release as a
result of erosion of the over-lying strata, and the breaking of the seal in that manner
(T11/99F, 89C, 90B). That possibility also had no supporters.
Subject to what I shall say below concerning Sir Alan Muir Wood, only one
hypothesis as to the probable triggering mechanism was advanced. In his first report,
Professor Knill put it thus (J/K/17):
"The construction of the tunnel creates a void at atmospheric pressure which permits
groundwater to flow inwards towards the tunnel from above and below, and laterally.
This flow resulted in a long-term fall in water levels as is illustrated by the 8 m fall
observed at Low Moor Head, 500 m from the tunnel, still present in 1984 (Ref. 24). The
drainage of groundwater towards the tunnel will result in the formation of a trough in the
water table above the tunnel; as a consequence the height of water above the tunnel was
not likely to be more than about 35 m at about 2 km from the Abbeystead Valve House
in April 1984 (Ref. 24), and may have been less. It is reasonable to assume that these
drainage effects also extend at least 1 km to each side of the tunnel and possibly the
same order of distance below the tunnel. If the groundwater pressure which was
confining gas in a trap at depth below the tunnel was reduced because of the
establishment of flow towards the tunnel, then the gas would expand downwards and
could then be released underneath the spill point at the lower edge of the trap. The gas
would then rise with the groundwater along faults towards the tunnel, possibly passing
into solution at the same time. The time which would be necessary for such a process to
be established would be dependent on a number of factors, but a period of months, if not
years, could be involved. If the gas is draining from a trap by such a mechanism then the
flow should become progressively less with time as the gas pressure stabilizes to the
reduced groundwater head. Because the water draining into *440 the tunnel will also be
derived by downward movement from the near-surface environment some methane of
biological origin as well as air is to be anticipated mixed with the water flowing into the
tunnel. In view of the proximity of the base of the trough in the water table above the
tunnel to the tunnel roof the possibility exists that downward flow of groundwater within

sandstone layers would be under partially saturated conditions thereby entraining air
which could be carried downwards into the tunnel".
17-93 He returned to it in his second report (J/K/39), and was questioned about it at
length when he gave evidence (T11/100F passim; 12/24, passim). In re-examination,
there was this exchange (T12/34G):
"Q. Could the driving of this tunnel have effected the release of gas from the
reservoir in any other way, do you think, than by the lowering of hydrostatic pressure?
(A) No. I believe I have examined all the alternatives; eliminated all but one; tested that
one as far as possible in relation to the data, and I think that one on that basis is
sustainable".
The hypothesis must, of course, be closely scrutinised, since this phenomenon was
outside the Professor's previous knowledge and experience (T12/35A). But it was also
very unusual, in his experience, for a tunnel at this depth to have so little water head on
top of its roof (T11/107G), and the primary facts relating to the lowering of the water
level were not in issue.
It is of interest to note that the rudiments of this hypothesis were propounded by Mr
Wheeler long before any litigation was in being, or Professor Knill had appeared on the
scene. On June 8 he raised the question: "Could gas have accumulated in an anticlinal
structure or tilted bed and migrated towards tunnel as a result of the draining effect of
the tunnel on fluids within the rock"? (F/57). Three days later he carried his speculation
a stage further: "Movement of methane--caused by flow of water toward tunnel acting as
a drain-- probably occurs from below or laterally, because of pressure reduction caused
by tunnel". (F/72). It is not, therefore, surprising that the other geologists who gave
evidence did not reject the hypothesis. Mr Williamson accepted it was one possibility
(T1/96E), but did not suggest any other. Invited in re-examination to describe the
hypothesis as possible but unlikely, he said: "It would appear to be possible. It has not
been proved". (T1/132B). It is of course true that the hypothesis has not been what a
scientist would call "proved".
Dr Fothergill did not hesitate to accept the hypothesis as possible (T2/125C). Dr
Whittaker did reject it (T3/106E), but he gave no plausible reason for doing so and
largely confined himself to criticism of a model introduced to demonstrate the
hypothesis with which, although a standard model used as a teaching and research aid
for 90 years (T11/100G), he appeared to be unfamiliar.
I can see no good reason for rejecting this hypothesis, and I do not understand the
Judge to have done so. He made no finding. The hypothesis does not strike me as
inherently implausible. It was not undermined by criticism. There was no alternative
hypothesis. It had the very considerable authority of Professor Knill *441 to support it. It
seems to me to provide the most probable explanation of the mechanism by which
methane leaked from a reservoir into this tunnel.
That conclusion does not assist unless it is possible to conclude where, as a matter of
probability, the reservoir was. Mr Williamson thought it was not in the Caw Mill
Sandstone which he placed immediately below the tunnel (T1/95D); G/W/110). He
considered the Brennand Grits, which he put as the next stratum down, a possibility but
not a strong one: "... it is only a possibility, but there is a possibility that there could be a
gas reservoir in the Brennand Grits, that is the grits immediately below the Caw Mill
Sandstone. I only say there could be a possibility because we cannot prove it otherwise".

(T1/95E; G/W/110). He appears to have accepted Professor Knill's view that the reservoir
was likely to be at depth, some beds down (T1/99E). There was put to him the suggestion
taken from an expert report, which itself was not admitted into
evidence, that the probable reservoir was in the Pendleside Limestone, 1000 metres
down, and he replied (T1/92C): "I am not at all surprised to find that it is there, because
the Pendleside Limestone, as well as being a potential reservoir, is also a potential
source rock as well". He later drew attention to the methane-bearing potential of the
Clitheroe (or Chaplin) Limestones some 1500 metres below the surface (T1/109F, H).
While he regarded certainty, in the absence of a deep bore hole, as unattainable, I think it
is fair to understand Mr Williamson as favouring the view that any reservoir was likely
to be at some depth.
17-94 Professor Knill, as the judge put it (judgment, p. 42F) "meticulously analysed
the geology of the Grizedale anticline". Below the tunnel is Pendle Grit (T11/79 passim),
which it was thought the tunnel might intersect but which in the event it did not
(T1/120C), with above it a relatively thin layer of shales (T12/17G).
Below the Pendle Grit are Bowland Shales then (going downwards) Pendleside
Sandstone, Pendleside Limestone and Worston Shales. Professor Knill was at first
prepared to accept the Pendle Grit as a potential reservoir (T12/17H), but having seen
the Whit Moor borehole log (and also the expert report which was not admitted) he came
to the view that was the faintest possibility, which he thought should be discounted
(T12/18A, D, 19A; T11/96A, D; 105G). His reason was that the shales about it were
incapable of providing an effective cap rock (T12/18D, 20D). The Bowland Shales he
did consider would provide an effective cap rock, because they were extremely thick,
but no stratum above them was in his view capable of doing so (T11/95D). In his view
the probability was a reservoir below the Bowland Shales in either the Pendleside
Limestone or the Pendleside Sandstone (T11/105H, 96B), or it might possibly be in one
of the limestones below the Pendleside Limestone (T11/96B). So his judgment, although
more confidently expressed, was not very different from that of Mr Williamson. Even
Sir Alan Muir Wood envisaged a reservoir at considerable depth, and he was willing to
assume a depth of 1,000 metres (J/MW/2; T14/87A, 168 G).
From the outset Professor Knill acknowledged the difficulty of estimating the time it
would take for gas to escape from beneath the cap and reach the tunnel in the manner he
envisaged.
*442 In his first report he wrote (J/K/19):
"What is difficult to estimate is the time scale within which such a process could be
established, and could cease. If there were to be an open connection between the spill
point of the gas reservoir and the tunnel, then this process should theoretically have been
established and completed well within the construction history of the tunnel. However,
the geological sequence involved does not contain open connection and does involve
rocks which will impede water movement. If the gas reservoir were to be at some
distance from the tunnel, then the gas spillage from the trap could take many months, or
years, to be established. By the same token, completion of drainage of gas from the trap
would be delayed over a significant period".
By "open connection", he meant a borehole where there was complete freedom of
flow from the reservoir to the surface (T11/104G). At this stage he had still been willing
to countenance the possibility of a reservoir in the Pendle Grit at a depth of about 200

metres below the tunnel, and he had thought seepage from such a reservoir to the tunnel
would take about one year (T11/105D).
17-95 Later Professor Knill put forward a calculation (J/12/91) based on an
adaptation of Darcy's Law, a well-established formula determining the flow of fluids
through rocks (J/K/91; T11/102G). He re-arranged it in order to derive time. Time apart,
the formula involved four unknown variables. The first was distance, which he took as
1,000 metres. The second was hydraulic gradient which, on grounds he explained, he
took at 0.1. The third and fourth were fracture porosity and permeability. For these he
took what he regarded as extreme cases (T11/103G), one representing fracture but tight
rock, the other faulted rock (J/K/91). The fracture porosity figures were based on what
the Professor regarded as reasonable assumption (T12/25B), the permeability figures on
the portal boreholes and his experience elsewhere (T12/24G, 25B). These figures had to
be estimated from experience elsewhere in comparable rocks (J/K/91). He said of his
calculations (T11/115F):
"They are an attempt to try to assess the types of length of time involved. I have tried
to adopt reasonably conservative figures which are defensible for the various parameters
that I have adopted, and therefore I think they do provide a sense of reality in this
particular case. The parameters are reasonable in relation to my professional
experience".
His calculations for fractured but tight rock gave a time of 1,000 years for the gas to
travel from the reservoir to the tunnel, for faulted rock five years (J/K/91). He did not
think a time much shorter than five years was a practical possibility, "because we are
dealing with a fault path which passes through both shales and mudstones and
sandstone, and if in fact one goes for a very short period, then the permeability of the
fault becomes quite unrealistic in relation to the rock types in this area". (T11/115H).
Mr Williamson was invited, in cross-examination, to discuss the question of time,
but disclaimed the expertise to do so (T1/96E, 97A). Dr Whittaker was *443 familiar
with Darcy's Law and agreed it could in principle be used to derive time (T3/106G, H),
but took his stand on the point that the calculation could only be made if all the data
were known (T3/106H, 107A, F, G, 108C).
In cross-examination of Professor Knill, his calculation was criticised on this ground
(T12/24G, 25A, B).
This criticism impressed the judge. He said (judgment, p. 25C):
"As the depth of the reservoir below the tunnel, the depth of the point of gas release
below the cap of the reservoir, the degree of pressure within the reservoir and hence the
degree of fall in the hydrostatic head necessary to permit release of the gas are all
unknown, as there are no data on the fracture porosity and the permeability of the
intervening strata, and as there may be more than one water table and will be unknown
rainfall so that the effects on the hydrostatic head will be irregular and unpredictable, it
is, in my judgment, euphemistic to describe this offering as a calculation, despite the
obvious distinction of its author. I venture to suggest that if one of Professor Knill's
pupils had produced it, he would have received high marks for ingenuity but none at all
for likely reliability".
17-96 If Professor Knill had presented his conclusion with any claim to scientific
precision, these criticisms would be unanswerable. That he was seeking to do no more
than present an order of magnitude figure is, I think, made plain by his taking of two

cases yielding markedly different answers. His theoretical approach was not criticised as
suspect. It was not suggested that the values he attached to the unknown variables were
unrealistic or inappropriate. No alternative values were suggested or put to him for
consideration. It is, of course, obvious that if the variables are altered, the time derived
may be shorter or longer, but it would require quite a radical alteration to reach the
conclusion that gas was likely to be arriving in the tunnel before hand-over, let alone
before the time at which testing for stress-relief methane would, in the ordinary course,
have ended on obtaining consistently negative results. I do not think this calculation can
be dismissed as lacking a scientific precision never claimed for it. In my view it
reinforces the conclusion that methane from a reservoir was probably not leaking into
the tunnel during the construction period.
In his report submitted for the third defendants, Sir Alan Muir Wood expressed no
opinion on the likely mechanism or release of methane from the reservoir at depth and
its route to the tunnel. No case was accordingly put by the third defendants to any
witness on this subject. In particular, there was no challenge on their behalf to the
evidence of Professor Knill.
When he came to give oral evidence, Sir Alan expressed the opinion that methane
probably was entering the tunnel during construction (T14/86G). The Judge quite
naturally asked him to elaborate, and his reason for holding that view was that he
regarded Professor Knill's hypothesis as the least likely of all hypotheses (T14/87F), and
he could not make it work (T14/176B). He agreed on the probable existence of a
reservoir at considerable depth, perhaps 1000 metres (J/MW/2; T1487A, 168G). But he
postulated that as a result of an unloading mechanism towards the end of the Ice Age, or
a tectonic event in the *444 locality before recent historical time (T14/87E, 172A), the
gas had leaked from that deep reservoir to a secondary leaky trap around the level of the
tunnel which was then intercepted by the tunnel (T14/87B, 102G).
Counsel for the first defendants was understandably taken aback by the emergence
of this new theory, never put to his witnesses during the last throes of the evidence. He
made plain that the issue whether reservoir methane was leaking into the tunnel was
vital (T14/100A). Counsel for the third defendants described this evidence as Sir Alan's
"own personal view" (T14/101A), and made it plain he was not seeking to persuade the
Judge that this theory was the correct one and would not be inviting the judge to find on
the basis of that theory (T14/101B). Counsel for the plaintiffs remained silent. After
some cross-examination on behalf of the first defendants, the judge made it plain
(T14/173C), that he proposed to make no finding whether or not there was a secondary
reservoir. The matter appears to have been left on the basis that the question of a
secondary reservoir was irrelevant (T14/173F, 177F).
17-97 This was a difficult forensic situation. Counsel for the third defendants rightly
declined to advance the hypothesis as part of their case--to which it was strictly
irrelevant--at that stage. Counsel for the plaintiffs rightly did not attempt to adopt this
hypothesis as part of their case at that stage. The judge was quite right to conclude that
the time for opening up new areas of factual enquiry had long since passed. But Counsel
for the first defendants was also, I think, right to ask that the theory should either be
canvassed with Professor Knill or ignored. It was not put to the Professor. All, therefore,
that one can fairly do is acknowledge that the Professor's hypothesis did not command
universsl assent. That apart, the hypothesis must be considered on its merits and in the

light of all the other evidence, expert and otherwise. The correct conclusion, as a matter
of probability is in my judgment that I have already expressed.
(ii) Onus of proof
17-98 It was argued for the plaintiffs that since the first defendants had failed to
insist on adequate testing, and since the result of that failure was a lack of the
information which full testing would have yielded, there was an evidential burden on the
first defendants to show that the methane found to be leaking into the tunnel after the
explosion had not been leaking into the tunnel during construction.
It is, as I understand, correct in principle that if the party (usually the plaintiff) on
whom the general burden of proof lies establishes facts from which, in the absence of
further evidence, an inference will be drawn in his favour, there is an evidential burden
on the other party (usually the defendant) to rebut that inference, and if he does not do
so, the finding will be against him. I do not, however, think that this principle assists the
plaintiffs in this case.
It is not in dispute that methane was found to be leaking from a reservoir into this
tunnel in and after May 1984. That fact does not give rise to an inference that methane
was leaking from a reservoir into the tunnel before hand-over in June 1979. Even on the
most simple approach to this matter, one would expect there to be a delay while gas,
trapped in a reservoir for many millions of years, is released and travels through about a
kilometre (probably) of rocks. The burden *445 is on the plaintiffs to prove, on the
balance of probabilities, that it was leaking during construction, and not on the first
defendants to prove that it was not. It cannot fairly be said that the first defendants are
benefitting from their own wrongful failure to insist on proper testing, because whether
they are benefitting or not depends on what the tests (if done) would have shown. It may
well be (and in my view is) that further tests would have shown conclusively that
leaking reservoir methane was not entering the tunnel during construction; if that is so,
they are the main losers by their failure.
By establishing the entry of leaking reservoir methane into the tunnel in 1984 the
plaintiffs have not, in my judgment, established facts which cast an evidential burden on
the first defendants to show that such leakage did not occur during construction. If,
however, an inference against the first defendants would be drawn in the absence of
rebutting evidence, there is, in my view, ample rebutting evidence, and the evidence as a
whole in my view shows that no inference should be drawn in the plaintiffs' favour, and
that the probabilities are against their contention.
It was alternatively argued for the plaintiffs that since, as a result of their failure to
insist on proper testing, the first defendants could not exclude the possibility of methane
in the tunnel during construction, they should have redesigned the system anyway so
that the contents of the tunnel would be vented direct to the atmosphere. In my opinion
this submission rests on a fallacy. If the first defendants had, or should have, foreseen
the risk of methane leaking from a reservoir into the tunnel, then they should have redesigned the system and not waited for the methane to make its appearance. But if they
only foresaw, and should have foreseen, the risk of stress-relief methane, there was no
need to re-design the system to eliminate a risk which would be cured by ample
ventilation and time. If, as I have concluded, the first defendants reasonably failed to
foresee the risk of leaking reservoir methane, they cannot be criticised for failing to re-

design the system because they had not excluded a risk of which they were reasonably
unaware.
(2) Foreseeability of voids and novus actus
The first defendants submitted that the third defendants' conduct in cracking open the
wash-out valve in time of drought when there was no pumping of water from the Lune,
allowing the void to form and persist in the tunnel without correction, and inviting a
party of spectators to the valve house when the water was below the weir and the system
was not functioning was unforeseeable and broke the chain of causation between any
negligence on their part and the plaintiff's damage. The judge rejected this argument
(judgment, p. 81C-82F), and like my Lords, I am sure that on the evidence he was right
to do so.
I have considerable sympathy with the first defendants. I have no doubt they
intended the system to be run full of water. I have no doubt that in the ordinary course it
would be good water industry practice to control any void created deliberately, and to
rectify any void which arose accidentally. The wash-out valve was designed to be just
that, not a dribble-out valve. The presence of so many spectators on an occasion when
the system was effectively out of action *446 was odd. The occurrence of this disaster
was the last in a long chain of unusual events. But it is commonplace that the best laid
plans of operation "gang aft agley". The evidence compels the conclusion that voids
were foreseeable. The cracking open of the wash-out valve played no part in the
designer's grand design, but it was just the sort of makeshift, apparently harmless
expedient, which those on the shopfloor habitually employ to overcome real, though
minor, problems. It was a tragedy that so many happened to be in the valve-house when
the explosion occurred, but the first defendants' position is in law the same as if there
had been but one employee present on that occasion, and such a presence was readily
foreseeable.
This submission must, as the judge held (judgment, p. 81G) fail on the facts. I do not
think it necessary to consider the authorities. If it were necessary, I could not accept the
Judge's ground for distinguishing Home Office v. Dorset Yacht Club (1970) A.C. 1004,
and Lamb v. London Borough of Camden (1981) 2 All E.R. 408: see judgment, p. 82C.
(i) Continuing duty
When dealing with apportionment (judgment, page 83B), the Judge held that the first
defendants "... were to some slight degree negligent in not keeping abreast with, passing
on to the third defendants and considering, in relation to design, developing knowledge
about methane between handover and 1984".
We were told that this finding had caused some concern among professional
indemnity underwriters.
I am not surprised. It has never, to my knowledge, been held that a professional man
who advises on a tax scheme or on draft trading conditions, is thereafter bound to advise
his client if, within a period of years, the statutory provisions or the relevant authorities
change. Nor has it ever to my knowledge been suggested that a retired practitioner is
bound, during his retirement, to keep in touch with developments in his profession in
this way. These would be novel and burdensome obligations. On the other hand, Counsel

for the plaintiffs was able to advance persuasive examples, involving dangers to life and
health, where some response by a professional man might well be called for.
What is plain is that if any such duty at all is to be imposed, the nature, scope and
limits of such a duty require to be very carefully and cautiously defined. The
development of the law on this point, if it ever occurs, will be gradual and analogical.
But this is not a suitable case in which to launch or embark on the process of
development, because no facts have been found to support a conclusion that ordinarily
competent engineers in the position of the first defendants would, by May 1984, have
been alerted to any risk of which they were reasonably unaware at the time of handover.
There was, in my view, no evidence to support such a conclusion. That being so, I prefer
to express no opinion on this potentially important legal question.
For these lamentably lengthy reasons I would, for my part, allow the first defendants'
appeal.
(ii) The plaintiffs' claim against the second defendants
17-100 In the case of the second defendants, the first and major question which
arises is whether the accumulation of methane in the tunnel and valve-house in a *447
quantity potentially dangerous to life or health ought reasonably to have been foreseen
by ordinarily competent tunnelling contractors in the position of the second defendants
during construction (judgment, p. 3F). In my view the answer must plainly be No, for all
the reasons already given in the case of the first defendants. But the second defendants'
position is, on any showing, even stronger, because they played no part in designing the
scheme or investigating the site of the tunnel. They were simply employed to build the
tunnel, and while they were bound to do that in a competent, professional and safe way,
they were not bound to do more than that.
The question may be posed more narrowly: ought ordinarily competent tunnelling
contractors in the position of the second defendants to have foreseen the risk of injury to
persons, such as the plaintiffs, if they (the second defendants) did not test the
atmosphere of the tunnel as directed by the first defendants? Again, the answer must be
plainly No. Again, the reasons are those already given in the case of the first defendants.
But again, those reasons have even greater weight in the case of the second defendants.
Like the first defendants, the second defendants could reasonably be expected to
foresee a risk, however remote, of stress-relief methane during construction. Adequate
ventilation could prevent that becoming a source of danger, and in the space of weeks or
months it would dissipate. The evidence does not justify the conclusion that an
ordinarily competent tunnelling contractor would foresee the risk of a continuing inflow
of methane from an underground reservoir, nor did anything occur during construction
to suggest such an extraordinary phenomenon.
I shall not elaborate my reasons for holding that the second defendants' appeal
should succeed on this ground, since to a large extent I agree with the reasons which
Russell L.J. has given.
The second defendants adopted the first defendants' submission that methane had
probably not leaked into the tunnel from an underground reservoir during construction. I
have accepted that submission, and would allow the second defendants' appeal on that
ground also: no matter how meticulously they had tested, they would not have found

methane which was not there and would therefore not have been alerted to the danger
which caused this disaster.
17-101 The second defendants advanced a further argument, that even if they had
tested, as instructed, such testing would probably not have detected an inflow of
methane leaking from a reservoir into the tunnel (if, contrary to their contention, such
leakage occurred during construction). Therefore, they contended, their failure to test
was not causative of damage to the plaintiffs. The judge did not accept this contention.
He held (judgment, p. 68D):
"(3) Would methane probably have been detected by proper testing? In my judgment,
having regard to the evidence of Mr Edwards, Mr Tough and Sir Alan Muir Wood in
particular, it would. With Draeger equipment alone it is not certain that it would have
been detected and it is possible that it might have gone undetected. But, as a matter of
probability, testing with the ventilation switched off at weekends, or on commissioning
before handover, or re-testing, particularly at the places where 10 millimetres or longer
*448 stains were found when there had been no recent blasting, would all have been
likely to discover methane; and with methanometers, which measure down to .05%,
discovery would have been certain at these and other places.
Both Mr Eastaff and Mr Wheeler agreed that if monitoring showed an inflow of
methane when the tunnel was not in the coal measures, this would have been a matter of
concern meriting further investigation and consideration. In my judgment, this concern
must have been increased if, as was likely, re-testing had established the presence of
methane on 24th May, 9th June and 22nd August (when the longest stains were found).
Such a presence would have been inexplicable merely on the basis of stress relief".
The first defendants did not challenge this conclusion. The second defendants did.
Since we are agreed that the second defendants' appeal should be allowed, I shall not
review the evidence, on this point, which was extensive. I would, however, make three
points:
1. If (as one must assume for this purpose) there was a continuing inflow of leaking
reservoir methane into the tunnel during construction, it must follow that the negative
results of the match-test of Mr Boyd on 20th October in the unventilated dead-end, of
Mr Wild's test on 24th October in the scarcely ventilated dead-end, of the tests done by
Mr Wardle in the anticline area before and after break-through, and of the test done by
Mr Wild in response to Mr Kluczynski's complaint failed to detect any trace of such
inflow. That indicates, in my opinion, that the inflow (if it existed) would in all
probability not have been detected by Draeger equipment in ordinary working
conditions. By referring to testing with the ventilation switched off at week-ends and use
of methanemeters, the Judge, I think, accepts this. There was a mass of evidence to that
effect.
2. Testing with the ventilation switched off would have had nothing whatever to do
with the purpose for which testing was being done, namely, the protection of those
working in and visiting the tunnel. It would also, because ventilation, once stopped,
cannot be instantly resumed, have undermined the principal means relied on for
protecting those workers and visitors. Such a procedure would not therefore have
reflected the intent of Clause 2.8.102 of the specification, or the first and second
defendants' practical objectives in testing.

17-102 What is in truth being suggested is that more elaborate testing for a different
purpose should have been carried out, not for the purpose of protecting workers and
visitors, but for the purpose of ascertaining whether the tunnel was experiencing an
inflow of something other than ordinary stress-relief methane. Testing with the
ventilation switched off, or on commissioning before hand-over, could have no other
purpose. This would no doubt have been a prudent precaution if the first defendants (or
ordinarily competent engineers in their position) were or should have been alerted to the
possibility of this extraordinary and almost unheard of phenomenon. In the event they
were not alerted, and I do not think they should have been. It follows that in my opinion
the conditions for detecting this continuing inflow if (contrary to my view) it occurred,
would never in the ordinary course have obtained.
3. I see no basis for the finding that discovery of methane on re-testing on *449 May
24, June 9 and August 22 would have been inexplicable on the basis of stress-relief.
Those tests were made close to the recently excavated face. To anyone considering the
question at the time, stress-relief would have been the obvious, and the only obvious,
answer.
I would allow the second defendants' appeal.
(iii) The Plaintiffs' claim against the third defendants
17-103 In the case of the third defendants, the first and major question which arises
is whether the accumulation of methane in the tunnel and valve-house in a quantity
dangerous to life or health ought reasonably to have been foreseen by an ordinarily
competent water authority in the position of the third defendants during the period of
operation (judgment, p. 3F). Until then, the third defendants are protected by section
2(4)(b) of the Occupiers' Liability Act 1957, as the judge rightly held (judgment, p.
76G). The only possible answer to the question is negative. There was no evidence that
such a water authority would have foreseen such an event. There was a very great deal
of evidence that it would not.
The plaintiffs' case against the third defendants could not recover from this
weakness. Reliance was placed on "messages" to be derived from a number of
broadsheets, but Mr Haswell, the plaintiffs' only witness qualified to speak of good
practice among water authorities, initially regarded all the broadsheets, save one, as
irrelevant (T5/35H), and later agreed that even that one should not have alerted the third
defendants (T5/37D). The judge was in error in regarding it as significant (judgment,
page 80C) that Sir Alan Muir Wood did not deal with the broadsheets in his careful
report and evidence-in-chief. He did not deal with them in his report because the
plaintiffs' case on the subject had not, at that stage, been fully employed. He did, in his
evidence-in-chief, consider each broadsheet in turn (T14/91C passim) and said of each
that it would not alert a water authority to this risk.
It is furthermore significant to note the evidence of Sir Alan, which the judge
summarises at p. 80D of his judgment, and accepts at p. 80G:
"Q. Having reviewed those broadsheets, their cumulative effect is this, is it not,
whether a well or a tunnel, that holes in the ground that carry water involve a potential
risk of dangerous atmospheres, is that not correct? (A) Yes, certainly this is the general
import of those broadsheets, drawing attention to the particular risks that may be
involved in particular circumstances.

Q. Let us take the tunnel by itself for a moment, not the valve house. The Water
Authority, totally ignorant as it has said, of the methane risk, entering the tunnel on an
inspection and following these guidelines, would have tested for the presence of an
explosive gas, would they not? (A) Following these broadsheets, and my expectation is
that in those circumstances they would not have detected anything, but nevertheless they
should have doubtless been measuring for it if they had been following the broadsheets".
(T14/153F-154A).
It is plain that Sir Alan was not speaking of the valve-house, and was not *450
suggesting that the methane was foreseeable by the third defendants in the tunnel, which
he consistently denied.
The judge accepted (judgment, p. 76F), that methane was the only specific gas which
needed to be considered by the third defendants. There was no evidence that an
ordinarily competent water authority in the third defendants' position would, in these
circumstances, have considered it. In the absence of evidence, no inference in the
plaintiffs' favour could properly be drawn.
For these reasons, and for those given by Russell L.J. (with which I broadly agree) I
conclude that the third defendants' appeal should be allowed.
FOX L.J.:
I have had the advantage of reading in draft the judgment of Russell L.J. I agree with
it, and would order accordingly.
Order: Appeal of the first defendants dismissed with costs; appeals of the second and
third defendants allowed, with costs against the first defendants in the Court of Appeal,
and below. Leave to appeal to the House of Lords refused.