“14. ‘Underground’ is a word of somewhat indefinite meaning, in ordinary usage. The primary dictionary definition meaning is ‘below the surface of the ground’; but this definition is itself ambiguous. In one sense a man who works in the basement of a building might be said to work ‘underground’; and so perhaps (although more doubtfully) might a man who works in an excavation. But, as the word is used in the regulation, its meaning is controlled by its context. The context is “in a mine”. ‘Underground in a mine’ normally connotes, in my opinion, what is colloquially referred to as ‘down the pit’…”
“The Secretary of State takes the view that a broad definition should be applied provided that the work was underground and that it involved the person in question kneeling and squatting whilst under load for prolonged periods of each day.” 42. As to the first part of this submission, and for the reasons explained above, I am entirely satisfied that a broad definition should be applied to the occupation of “coal miner”, provided, of course, that the work was underground. That approach is also consistent with the position taken by IIAC in their report. 43. As to the second part of the Secretary of State’s submission, it is much less clear that there is any separate and additional requirement to show that the claimant’s occupation “involved the person in question kneeling and squatting whilst under load for prolonged periods of each day”, as Mr Kendall submits. 44. The IIAC report explains how, between the 1940s and 1960s, “miners would normally have spent most of their working careers at the pit face, in jobs that involved kneeling and squatting whilst bearing heavy loads for a large proportion of each day” (paragraph 54). Gradually, however, with increasing mechanisation, “less time was spent by fewer workers in kneeling and squatting under load, although certain tasks still required heavy manual effort while kneeling or squatting” (paragraph 54). The justification for the distinction between pre- and post-January 1, 1986 employments was put by IIAC in the following terms: “55. Kneeling and squatting under load remained a significant feature of work for most underground miners until the mid-1980s, after which the majority of miners would not have spent prolonged parts of their working day kneeling and squatting.” 45. As indicated above (at paragraph 7), the Upper Tribunal may have regard to relevant IIAC reports as an aid to construction. However, as Mr Commissioner Goodman observed in R(I) 4/99 (at paragraph 9), if the legislation “is clear and unambiguous then the material in the Advisory Council’s Report cannot be used to qualify or alter its meaning. If, however, that wording is unclear or ambiguous the Council’s Report may be used to clarify it.” 46. Although ambiguity may lie in the eye of the beholder, I have to say that I do not regard the prescribed occupation within paragraph (a) of “Work underground in a coal mine … before1st January 1986 as a coal miner” for the requisite period as being unclear or ambiguous at all. A tribunal can use its good sense to find the facts as appropriate. Applying the “elephant test” (see paragraph 36 above), I am confident that tribunals can be trusted to recognise a pre-January 1, 1986 coal miner when they meet one. 47. Accordingly, in my view the second limb of the Secretary of State’s submission seeks to introduce an unwarranted gloss on the statutory language. As Mr Commissioner Goodman also pointed out in R(I) 4/99, “it must be borne in mind that the claimant is entitled to any benefit which the law gives him in the shape of the actual wording of [the relevant paragraph] of Schedule 1 to the Prescribed Diseases Regulations”
“56. However, such exposures are likely to have persisted for faceworkers and face salvage workers in certain non-mechanised mines until a much later period; and other categories of miner, such as development workers and conveyor belt cleaners and attendants, would have incurred such exposures through activities such as installing track, pipework and conveyor belts, carrying heavy arched supports, and cleaning coal spillages by shovel in circumstances of restricted access.” 56. IIAC does not cite any of the epidemiological evidence in support of its decision to identify these particular groups of coal miners. This was presumably because the scientific studies involved were insufficiently fine-grained to support such distinctions. For example, the study by G McMillan and L Nichols entitled “Osteoarthritis and meniscus disorders of the knee as occupational diseases of miners”, itself reviewing earlier studies, refers to coal miners as a general group and concludes that kneeling and/or squatting, especially when lifting, is casually associated with an increased risk of osteoarthritis of the knee ( Occupational and Environmental Medicine 2005; 62: 567-575). That being so, one can only assume that IIAC was satisfied by other evidence it received as to the types of actual work undertaken that these particular categories of coal miner remained at risk after January 1, 1986. 57. As noted at paragraph 9 above, there appears to be a difference between the IIAC recommendation and the implementing regulations. It is plain from the passage cited above that IIAC drew a distinction between “ faceworkers and face salvage workers in certain non-mechanised mines” on the one hand and “other categories of miner, such as development workers and conveyor belt cleaners and attendants” on the other. Their actual recommendation did not refer to face-salvage workers, but the extract above strongly suggests that they regarded that group as subsumed within the general category of face workers in non-mechanised mines. 58. However, be that as it may, the new tribunal must apply the regulations as they find them (see paragraph 47 above). For whatever reason, face-salvage workers have been separated out in the list of prescribed occupations. The result is that any face-salvage worker is covered by the prescription test for the later period, whether working on a mechanised or non-mechanised coal face. Face workers, however, only qualify after January 1, 1986 if they worked on a non-mechanised coal face, as that term is defined. 59. In this context I must note that the claimant in his further submissions on the appeal, made the following further point: “In my opinion my duties were just as arduous after 1-1-86 as they were before. In fact the more mechanised operations became, the more involvement we as electricians had, i.e. carrying heavy pieces of equipment etc whilst crawling along the face. This is just as traumatic on the knees as shovelling while kneeling.” 60. That may well be so, and of course circumstances may have varied from coalfield to coalfield and indeed from pit to pit within the same coalfield. However, the regulations plainly exclude face workers after January 1, 1986 who worked on mechanised coal faces. 61. The new tribunal will have to consider whether the claimant worked in any of the post-January 1, 1986 occupations. As explained above, the new tribunal cannot rely on the job title stated in the claimant’s contract of employment. The new tribunal also cannot simply rely on the claimant’s pay grade or the label that may appeared on the pay-slip in his wage packet. The focus, as has been explained, must be on what the claimant actually did. This must ultimately be a question of fact for the tribunal. 62. In practice a tribunal may well find it hard to accept that an electrician could ever fall within the terms of paragraphs (b)(iv) and (v), namely a conveyor belt cleaner or attendant. To be fair, the claimant in this case has never suggested as much. However, it is possible that an electrician might be, for example, a “face worker working on a non-mechanised coal face”, a “development worker” or a “face-salvage worker” within paragraphs (b)(i) to (iii). It all depends on the facts, and in particular what those occupations involved and what the claimant himself actually did. 63. The new tribunal will therefore have to make findings of fact as to whether the occupations specified in paragraphs (b)(i) to (iii) are relatively narrowly defined occupations or whether, as the claimant argues in his grounds of appeal, they are broad umbrella terms which describe a number of separate categories of worker. If the former, it may be unlikely that they encompass someone who is an electrician by training. If the latter, it is possible that an electrician might be included. 64. I note that the CES reply described the claimant as an “underground and coalface electrician” (see paragraph 10 above). If the tribunal conclude that the occupation of “face worker” is a broad enough term to include someone who is a qualified electrician, then of course that occupation will only count if the claimant was a “face worker working on a non-mechanised coal face”, which seems unlikely given what is known so far in the present case. Of course, the “non-mechanised coal face” rider does not apply to the occupations of “development worker” and “face-salvage worker”