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16 [1958] 1 All E.R. 91 (1958) 102 S.J. 31 (Cite as: [1958] 1 W.L.R. 16)

*16 National Coal Board v Galley 1956 N. 38 Court of Appeal L.JJ. Jenkins, Parker, and Pearce

1957 Oct. 29, 30, 31; Nov. 1, 4, 5, 27 Master and ServantContract of serviceEnforceabilityProvision that servant to work for such periods weekly as might be reasonably required. DamagesContinuing breachContinuing cause of actionRepeated breaches of contract of service R.S.C., Ord. 36, r. 58 . DamagesConcerted actionSingle defendantBreach of contract by servantServant's knowledge of similar breaches by fellow-servantsCoal-mineServant employed as deputyBreach of servant's contract resulting in loss of day's output of coalLoss attributable to individual servant. In October, 1947, a shortage of coal produced a serious crisis, and the miners, who had a five-day week agreement, agreed to work a Saturday voluntary shift, provision being made for overtime pay, and Saturday working took place at the defendant's colliery at all material times. The Saturday shift necessitated the presence of deputies on that day. In March, 1949, the defendant entered into a written contract of service with the National Coal Board as a deputy; the contract provided, inter alia, that his wages should be regulated by such national agreement and the county wages agreement for the time being in force and that this contract of service shall be subject to

those agreements and to any other agreements relating to or in connexion with or subsidiary to the wages agreement and to statutory provisions for the time being in force affecting the same. The defendant was a member of a local trade union which was itself a member of the National Association of Colliery Overmen and Deputies and Shotfirers (Nacods), an unregistered trade union that was composed of area associations and had no individual members, and which discussed and arranged with the board any alterations of the terms of the deputies' employment. Sometime before April, 1952, Nacods had put in a wage claim in respect of deputies, and subsequently, on July 29, 1952, an agreement on revised terms and conditions of employment of deputies was reached between the board and Nacods. This agreement contained a provision that deputies shall work such days or part days in each week as may reasonably be required On June 14, 1956, the deputies at the defendant's colliery gave notice to the management that they would not be turning coal on Saturdays in future and therefore no productive work was possible on Saturday, June 16, 1956. That position continued up to and including August 18, 1956. On August 25, 1956, the board arranged for substitute deputies at a cost of 3 16s 10d for each substitute for the Saturday shift, and the Saturday voluntary shift *17 was resumed. The loss of profit due to the impossibility of working the Saturday voluntary shifts on June 16, 1956, was 535, and between June 16, 1956, and August 18, 1956, it was 3,395. On June 21, 1956, the board issued a writ against the defendant claiming damages, limited to 100, for breach of contract: Held, (1) that the defendant's personal contract of service was regulated by the Nacods agreement and the defendant, by working on the terms of that agreement, had entered into an agreement which in-

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cluded the term in dispute. (2) That the Nacods agreement was intended to have binding effect and that the provision that a deputy was to work for such periods in each week as might reasonably be required did not, ipso facto, make the defendant's contract of service unenforceable. Foley v. Classique Coaches Ltd. [1934] 2 K.B. 1 applied . (3) That, in the circumstances, the hours of work required by the plaintiffs of the defendant were not unreasonable, and that, accordingly, the defendant was in breach of his contract by failing to report for duty on June 16, 1956. (4) That a continuing cause of action within the meaning of R.S.C., Ord. 36, r. 58 , 1 was not constituted by repeated breaches of recurring obligations nor by intermittent breaches of a continuing obligation, since there must be a quality of continuance both in the breach and in the obligation and, accordingly, the court in assessing damages was only entitled to take into consideration matters occurring before the issue of the writ. Hole v. Chard Union [1894] 1 Ch. 293 distinguished . (5) That the damages sustained by the plaintiffs and attributable to the defendant was the cost of a substitute on June 16, 1956, and no more, since although the defendant was undoubtedly acting in concert with others in failing to report for duty on the day in question, it was not shown that his breach of contract contributed to the loss of output of coal sustained on that day. Ebbw Vale Steel, Iron and Coal Co. v. Tew (1935) 1 L.J. N.C.C.A. 284 considered . Decision of Finnemore J. reversed in part. The following cases, in addition to those referred to in the judgment, were cited in argument:

Eshelby v. Federated European Bank Ltd.2 ; Fritz v. Hobson 3 ; Read v. Wotton4 ; Wheeler v. Keeble (1914) Ltd.5 ; Edwards v. Summerton 6 ; Young v. Canadian Northern Railway Co.7 APPEAL from Finnemore J., sitting at Nottingham Assizes. The facts are taken from the judgment of the court. The defendant, Stanley Galley, appealed from a judgment of Finnemore J., at Nottingham Assizes, awarding to the plaintiffs, the National Coal Board, 100 damages for breach of contract and costs on the High Court scale. The defendant contended that he was not liable in damages and that, even if he were liable, the damages should be only nominal. Although not strictly a test case, this was the first of 85 actions brought by the plaintiffs against other defendants raising similar issues. Probably the fate of those actions would be decided by this. The defendant was employed by the plaintiffs as a deputy in their colliery at Oxcroft in Derbyshire. The case arose out of the defendant's deliberate refusal to attend for work at the plaintiffs' mine on Saturday voluntary shifts, in breach, it was alleged, of his terms of employment. All the other deputies at the mine refused similarly and simultaneously. Deputies, like *18 overmen (who were immediately above them in status) and shotfirers (who were immediately below them), had been described as the non-commissioned officers of the industry. The deputy was in charge of the miners and had to see that various safety precautions were observed. He was first in and last out in a shift. As a result, his shift was longer than the ordinary miner's, and even when the miners were only working a five-day week the deputy had certain safety duties at the week-end. The defendant's trade union was the National Association of Colliery Overmen, Deputies and Shotfirers (Midlands Area). This body was in turn a member of the National Association of Colliery

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Overmen and Deputies and Shotfirers, an unregistered trade union that was composed of area associations and had no individual members; it was known popularly and referred to in this case as Nacods. It was Nacods who discussed and arranged with the plaintiffs any alteration of the terms of the deputies' employment. In April, 1947, following nationalization, a five-day week was introduced for miners by agreement between the plaintiffs and the National Union of Mineworkers. In May, 1947, a similar agreement in respect of deputies was made between the plaintiffs and Nacods. This agreement provided that local arrangements should be made to provide the working of additional shifts where it was necessary under statutory provisions and to ensure the safety and efficient working of the pit, and that the deputies should work reasonable overtime if required. In October, 1947, shortage of coal produced a very serious crisis. In that month the National Union of Mineworkers made an agreement with the plaintiffs that the five-day week agreement should remain in force but that a proportion of miners would voluntarily do as many Saturday shifts as possible for the next six months. Provisions were made for overtime pay. Thereafter voluntary Saturday shifts were worked at most other mines, and at this mine in particular. In April, 1948, the agreement for voluntary shifts on Saturdays was extended for a further year. Thereafter it was extended year by year up to April, 1952. The Saturday working was a serious attempt by miners and management to increase the output of coal. It necessitated each year an Order in Council under section 4 of the Coal Mines Regulations Act, 1908 , based on the existence of a great emergency or a grave economic disturbance due to the demand for coal exceeding the supply. On March 1, 1949, the defendant entered into a written contract of service with the plaintiffs. That contract was not a felicitous document and its terms were far from clear. The plaintiffs thereby agreed to

engage the defendant and the defendant agreed to serve the plaintiffs on terms and conditions set forth in the contract rules for the time being in force at the board's collieries. No one appeared to know what these rules were.*19 By clause 4 the defendant declared that he will serve the board as regularly as the state of trade and interruptions from accident or repairs to its mines and works or the non-arrival of wagons or general holidays will from time to time permit and that my wages shall be regulated by such national agreement and the county wages agreement for the time being in force and that this contract of service shall be subject to those agreements and to any other agreements relating to or in connexion with or subsidiary to the wages agreement and to statutory provisions for the time being in force affecting the same. It was contended by the plaintiffs that this contract incorporated any alteration in deputies' terms of employment that might be agreed between the plaintiffs and Nacods. From that time onward the defendant as a deputy was working at weekends, doing on an average approximately six shifts a week. But the shifts which he did on Saturday were voluntary and he received overtime pay in respect of them. In April, 1952, when the national yearly agreement for the Saturday voluntary shift ran out, it was not renewed until August 22, 1952. From that date up to the present it had continued in force with yearly renewals not merely in respect of winter months but in respect of summer months (May to August inclusive) as well. Although many collieries had worked Saturday voluntary shifts in the summer, the Oxcroft Colliery had never done so before August, 1952. Some time prior to April, 1952, Nacods had put in a wage claim in respect of deputies. During the summer of 1952, while the Saturday voluntary shift was in abeyance, there were various discussions

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between the plaintiffs and Nacods about deputies' pay and duties. The plaintiffs held the view that deputies (and overmen and shotfirers) were men of responsibility in the working of the mine who should hold a position more analogous to the management than to the miners. They suggested to Nacods that deputies should receive an upstanding weekly wage to include overtime. Minutes and transcripts of these negotiations were produced and put to the witnesses in evidence. It was clear that Nacods were afraid that the fixing of an upstanding weekly wage inclusive of overtime might result in men being put upon and being asked to work in excess of six shifts a week. (By six shifts a week the court was referring to the average produced by an alternation of five shifts in one week and seven in another.) They were trying to ensure that this would not occur. The plaintiffs were, in effect, saying that the average working week was now about six shifts a week but that deputies could not have a maximum of six shifts a week since emergencies in the pits might on occasion demand more, but that it was not the intention that the men would work more than six shifts. No one was saying that six shifts a week was unreasonable or excessive. In order to avoid the abuse of excessive unpaid overtime the *20 plaintiffs offered to keep records showing the overtime worked, and it was agreed that if the new agreement resulted in unreasonable impositions on the men, the matter should be discussed. No doubt both sides were then thinking that Saturday voluntary shifts would probably become unnecessary in a year or two, and it was said that no one at Oxcroft was anticipating summer Saturday voluntary shifts. Certainly no one was anticipating that Saturday voluntary shifts would still be worked by 1957. As a result of these discussions, an agreement on revised terms and conditions of employment of deputies between Nacods and the plaintiffs was reached on July 29, 1952. This agreement was interspersed with notes to explain what the various clauses meant. It was clear that the defendant was

at all material times aware of it, though he personally was not in favour of the change to an upstanding wage and had voted against it. The clauses relevant to this dispute were as follows: Clause 5. Deputies grade I and II shall be paid an upstanding weekly wage for each week worked without any additional payments in respect of overtime or week-end work. Clause 6. The amount of such weekly wage in respect of deputies grade I shall not be less than 14 per week, nor more than 16 10s per week. Clause 12. Except where prevented by sickness, accident or industrial disease to which the provisions of part E of this schedule apply, deputies shall work such days or part days in each week as may reasonably be required by the management in order to promote the safety and efficient working of the pit and to comply with statutory requirements. Clause 13. The management at each pit shall cause to be kept a record showing in respect of each week and each deputy grade I or grade II the number of days and part days worked by him in that week, and will so organise the work during the week as to ensure that, as far as is practicable, time worked is fairly distributed between deputies in the same grade in each pit. Clause 15. If, in any case, it is alleged that the amount of time worked by any deputy or deputies is unreasonable or is not reasonably distributed between deputies in the same grade in the pit, such matter shall be settled by discussion in such manner as the board and the association in the division shall agree. Note (i). The objects of the revised arrangements are to improve the status and quality of deputies grade I and II. The institution of an upstanding weekly wage carries with it the responsibility, on the part of the deputies, to work all such time as may be reasonably required of them by the management. It imposes upon management the responsibility of ensuring that, so far as possible, work is organised so that time to be worked is distributed fairly between deputies of the same grade in each pit. Note (ii). Both the board and the association

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have given assurances that these responsibilities will *21 be accepted and implemented in the spirit in which they are intended. Note (iii). Except when prevented from working due to sickness, accident, or industrial disease, deputies will be required to work all reasonable time required of them and will be expected not to absent themselves without the prior approval of the manager. Note (iv). The agreement does not make any provision, and no such provision is intended, in relation to financial penalties or deductions from the weekly wage in cases where a deputy is voluntarily absent from work. No deductions are to be made from the weekly wage in such circumstances otherwise than as provided in the arrangements for sickness, accident, and industrial disease provisions of the agreement. It will be the responsibility of management to deal with such circumstances by disciplinary measures, including, where appropriate, downgrading or dismissal. A more formal agreement in similar terms (omitting the notes) was signed by the plaintiffs and Nacods on August 25, 1952, by which date Saturday voluntary shifts had once more come into force. This agreement expressly rescinded the five-day week agreement of May 20, 1947. Wages were then fixed at divisional level, as envisaged by the agreement, at an upstanding weekly wage of 16 10s; and thereafter the defendant worked for the plaintiffs on the basis of the Nacods agreement. He continued to work about six shifts. Between 1952 and 1956 the miners received substantial increases of pay, whereas the defendant and other deputies received only two small increases. As the differential between themselves and the miners decreased they became more conscious of the hardship of the long hours that they worked without any overtime pay. Finally, as a result of dissatisfaction with the treatment of a wage claim, all the deputies at the Oxcroft Colliery refused to work the Saturday voluntary shift. The plaintiffs did not accept this refusal as a repudiation of the contract of service, but continued to employ him.

On April 23 the manager of the Oxcroft mine received a letter saying that at a branch meeting of the deputies they had decided to take no further part in coal turning on Saturdays. At the same time they informed him that they were very upset at the smallness of the increase in wages that they had just received. As a result the plaintiffs were unable to do any coal turning on Saturday, April 28, and a notice had to be posted cancelling the ordinary work for that day. The same thing happened on the next three Saturdays. But on May 26 the deputies returned to normal Saturday work, and it was possible to work a Saturday voluntary shift on that day and on the next two Saturdays. On June 14 the deputies gave notice that they would not be turning coal on Saturdays in future and therefore no productive work was possible on Saturday, June 16. That position continued up to and including August 18. On August 25 the plaintiffs arranged for substitute deputies at a cost of 3 18s 10d for each *22 substitute for the Saturday shift, and the Saturday voluntary shift was resumed. From that date the deputies refused to do work of any kind on Saturdays. In February, 1957, the deputies returned to their normal Saturday work. The loss of production on June 16, 1956, was 535, and between June 16 and August 18 it was 3,395. On June 21, 1956, the plaintiffs issued a writ against the defendant (and others) claiming damages for breach of contract. They alleged that the defendant was directly bound by agreement between the plaintiffs and Nacods of August 25, 1952 (the Nacods agreement), since he impliedly authorized them to conclude it on his behalf. Alternatively, by the defendant's individual contract of employment of March 1, 1949, his terms of service were expressed to be subject to any national agreements that might be entered into, and, since the Nacods agreement was a national agreement, it became incorporated in the defendant's contract of employment. Further, the defendant, by working on Saturday voluntary shifts from and after August 25,

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1952, recognized that that was one of the duties of his employment. Such duty was a reasonable requirement of the plaintiffs, and by refusing to do it he was in breach of his contract. The defendant, by his defence, denied that Nacods had any right to bind him by the Nacods agreement of August 25, 1952, but he admitted and asserted that from the beginning of August, 1952, he was employed on the basis of the earlier, less formal, agreement between Nacods and the plaintiffs of July 29, 1952. The term in that document as to doing such work as might be required by the management was too vague and uncertain to have any contractual effect. Alternatively, by reason of a number of circumstances, the requirement for Saturday working was not a reasonable requirement. He counterclaimed for a declaration that the plaintiffs were not entitled to require him to work at week-ends in excess of about 8 hours on one Saturday (or Sunday) once in every four weeks, or to work for more than 42hours in each week save in an emergency. Finnemore J. gave judgment for the plaintiffs. The defendant appealed. Representation Gerald Gardiner Q.C. and J. R. Bickford Smith for the defendant. Sir David Cairns Q.C. and Michael Harrison-Hall for the plaintiffs. Cur. adv. vult.*23 JENKINS L.J. November 27, 1957. The judgment about to be read by Pearce L.J. is the judgment of the court. PEARCE L.J. stated the facts and continued: The judge heard a considerable volume of evidence and was referred to a number of documents. It was made clear at the

hearing that there is no personal feeling in this action that they have brought against the defendant. They regard him as a faithful servant and a good worker, but as a matter of principle they wish to establish that men in responsible positions must honour their contracts. The case has been fought throughout on that note. The judge thought that, since one of the objects of Nacods was to negotiate the wages and conditions of all members and the defendant was a member of the local trade union which was itself a member of Nacods, the defendant was individually bound by the Nacods agreement. But in any event, by the defendant's personal contract his wages were to be regulated by national agreements for the time being in force and the contract was to be subject to those agreements; and therefore, since the Nacods agreement was a national agreement, the defendant was bound by it. He has, continued the judge, in fact accepted it and worked under it. He has taken the advantages of it and accepted the responsibilities of it for a period of some four years before this particular trouble arose. On the point that the agreement itself was not properly made, I think the complete answer would be that it is expressly admitted in the defence that the Coal Board, the plaintiffs, and the union did enter into an agreement which in fact contains the vital matters which are in dispute here. Mr. Gardiner contends that the judge was wrong in holding that the defendant was personally bound by the Nacods agreement. If that point fell to be decided it might well be a matter of some difficulty. But, as the judge said, it is clear that the defendant's personal contract of service is regulated by the Nacods agreement, and the defendant by working on the terms of the Nacods agreement has entered into an agreement which contains the term now in dispute. The defendant next contends that, even though the Nacods agreement was applicable to the defendant's employment, yet it had no contractual force, be-

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cause it was too vague. It is an industrial agreement, he argues, covering a wide area, with no intention that it shall have a specific or enforceable effect. *24 Collieries differ, and what is reasonable in one will be unreasonable in another. The court has no yardstick to measure what are reasonable requirements. For instance, the stringency of those requirements depends on the number of deputies employed. It is a case within the principle of May and Butcher v. The King 8 rather than Foley v. Classique Coaches Ltd.9 But it seems to us, on a consideration of the Nacods agreement, that it was meant to have a binding effect. Realising the difficulties inherent in the situation, it provided for discussions, if it appeared to be working out unfairly for the deputies. To define with exactitude what are the duties of a servant is no easy task. The court will supply an implied condition as to reasonableness in many contracts where duties are not fully defined, as in Hillas & Co. Ltd. v. Arcos Ltd.10 and Foley v. Classique Coaches Ltd.11 Mr. Gardiner also relies on the provision in clause 15 for discussion in the event of complaints. He contends that this is typical of an industrial agreement not intended to be enforceable in the courts. We do not, however, see how in principle such a provision differs from that in Foley v. Classique Coaches Ltd. , 12 which provided for the price to be agreed between the parties. It may be that discussion is a condition precedent to action, but once discussion is repudiated or fails the matter falls to be determined by the courts. Moreover, the defendant is in this further difficulty. He is asserting that the agreement as a whole exists, while seeking to deny the enforceability of clause 12. If clause 12 is too vague to be enforceable the whole agreement is not legally binding on either side: see Bishop & Baxter Ltd. v. Anglo-Eastern Trading Co. Ltd.13 In this contract the parties have expressly provided that reasonableness shall be the test. The fact that it is difficult to decide in a given case, should not deter the court from deciding what is a reasonable re-

quirement by a master in the light of the surrounding circumstances. In our view, therefore, the judge was right in deciding that the term as to working was legally binding. We come now to the central point in this appeal, namely, whether the defendant became in breach of his contract of employment when he refused to obey his employer's request to work the Saturday voluntary shift on June 16, 1956. He had already worked 11 shifts on the preceding 11 days. Could he reasonably be required to work a twelfth day before having two days off? In other words, was it reasonable to require him to work 12 days in the fortnight? It is, of course, clear that the court is in no way concerned with what are reasonable hours in the abstract. Its task is to consider the agreement made in 1952 *25 and to determine on the evidence whether or not the defendant was being required to work in breach of that agreement. The only yardstick stated in the agreement is what is reasonably required by the management in order to promote the safety and efficient work of the pit and to comply with statutory requirements. But this clearly is not the only yardstick, since the hours of work a deputy could reasonably be required to work for these purposes would depend on the number of deputies employed. Ultimately the question must be whether the defendant himself was being required to work reasonable hours. If, of course, he was being required to work longer hours than other deputies, that, in the absence of some exceptional circumstances, would be evidence that the requirement made on him was unreasonable. There is, however, no suggestion of that in this case. [His Lordship reviewed the evidence and said that the court had come to the conclusion that there was no evidence to justify the contentions that the defendant was being required to work in breach of the 1952 agreement. He continued:] Two points arise on damages. The first is the question of whether in assessing damage the court can take into account matters that occurred after the issue of the writ. The judge held

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himself entitled to do so under R.S.C., Ord. 36, r. 58 , and therefore he took into consideration the continued abstention of the defendant from the Saturday shifts from June 16, 1956, until February, 1957. If he was not entitled to do so, the only Saturday that falls to be considered on the case as pleaded is Saturday, June 16, since there is no reference to earlier Saturdays in the statement of claim, and the writ was issued on June 21. It is not contended that apart from the provisions of R.S.C., Ord. 36, r. 58, there would be power to take account of the breaches of contract on Saturdays subsequent to the writ. The terms of the rule are: Where damages are to be assessed in respect of any continuing cause of action they shall be assessed down to the time of the assessment. The judge relied on Hole v. Chard Union , 14 where damages for nuisance by pollution of a stream were assessed subsequent to the writ by virtue of R.S.C., Ord. 36, r. 58. Lindley L.J. said 15 : What is a continuing cause of action? Speaking accurately, there is no such thing; but what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought. In my opinion, that is a continuing cause of action within the meaning of the rule. The cause of action complained of and existing in the present case appears to me precisely the kind of mischief at which rule 58 was aimed, its object being to prevent the necessity of bringing repeated actions in respect of repeated nuisances of the same kind. To adopt the argument *26 of the Defendants would be to render the rule altogether a nullity. I feel no doubt that the present case is a continuing cause of action within the rule. It is a repetition of acts of the same kind as those which had been investigated at the trial, and had been decided to constitute a nuisance.

A. L. Smith L.J. said 16 : The principal question in this appeal turns upon the construction of R.S.C., Ord. 36, r. 58. It is contended by the appellants, that when the act on which an action is brought is established the cause of action can have reference to that one act and to no other. In my opinion, that is not necessarily so. If once a cause of action arises, and the acts complained of are continuously repeated, the cause of action continues and goes on de die in diem. It seems to me that there was a connexion in the present case between the series of acts before and after the action was brought; they were repeated in succession, and became a continuing cause of action. They were an assertion of the same claim namely, a claim to continue to pour sewage into the stream and a continuance of the same alleged right. In my opinion, there was here a continuing cause of action within the meaning of the rule. Other cases were cited to us, but none was on all fours with this case or threw any real light on it. It must, we think, be a question of degree as to whether separate acts are so knit up together, so close in time and quality, as to be properly described in the words a continuing cause of action. The general proposition that persistence in tortious conduct of particular kinds such as trespass or nuisance constitutes a continuing cause of action must be regarded as established. It also must be accepted that in contract also, breaches of obligation of various kinds may amount to continuing breaches. But that must depend on the nature of the particular obligation broken. For example, a contract of service for a specified term might contain a stipulation that the employee should not during the period of his service carry on or be concerned in any other business of the same kind as the employer's business. If the employee, in breach of such a stipulation, did proceed to carry out some other business of the kind in question, the breach would, we think, clearly be a continuing one, in that the employee would de die in diem be continuously in breach of the stipulation so long as the prohibitive business

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was carried on. But where a contract requires payments to be made on stated dates (for example, a contract to pay an annuity of 1,000 per annum in equal monthly instalments on the first day of each calendar month) failure to pay the instalment due on February 1 is not, we should have thought, a continuance of the cause of action constituted by failure to pay the instalment due on January 1, but a distinct cause of action arising for the first time on February 1 and at no earlier date.*27 Here the obligation broken by the defendant was the obligation to work the Saturday voluntary shift every other Saturday. The defendant having failed to perform this obligation on Saturday, June 16, 1956, the writ in the action was issued on June 21. Can it be said that the defendant's failure thereafter to work the Saturday voluntary shift on each of the alternate Saturdays on which it was his turn to do so was a continuation of the cause of action constituted by his failure to work the Saturday voluntary shift on June 16? We cannot see that it was. It cannot to our minds rightly be said that during the period between June 16, 1956, and the next Saturday on which it was his turn to work the Saturday voluntary shift the defendant was in continuing breach of his obligation to work it on June 16. The breach constituted by that failure was complete, over and done with on June 16, and could not be continued thereafter. If and when the defendant failed to work the shift on any subsequent Saturday when it was his turn to do so, a distinct cause of action in respect of that failure would arise on that day and not before. The fact that the defendant prior to June 16 manifested an intention not to work the Saturday voluntary shift any more, coupled with his actual failure to do so on June 16, might have entitled the plaintiffs to treat the contract as repudiated and to claim damages on that footing, but they did not do so. They chose to allow the contract to remain in force, and while it stood their cause of action in respect of his failure to work the Saturday voluntary shift on any given Saturday when it was his turn to do so arose if and when he failed to work the shift on that day and not otherwise. A continuing cause

of action is not in our view constituted by repeated breaches of recurring obligations nor by intermittent breaches of a continuing obligation. There must be a quality of continuance both in the breach and in the obligation. We sympathize with the judge's view that convenience and common sense are in favour of dealing with the damages under R.S.C., Ord. 36, r. 58. But the defendant is entitled to insist on this point if he properly can. We reluctantly come to the conclusion that these Saturday breaches of contract cannot be dealt with as a continuing cause of action and that if the plaintiffs wish to pursue their remedy in respect of them they must issue a fresh writ. The last point which arises concerns the measure of damages. The judge found that the plaintiffs had proved a loss of profit of 535 due to the impossibility of working the Saturday voluntary shift on June 16, 1956. He then went on to hold that the defendant and others namely, all the deputies and shotfirers concerned with the loss should be treated as being responsible for that loss and that the defendant was liable to the plaintiffs for his share. Having regard to the view he took on the first point in connexion with damages, it became unnecessary for him to fix the number of those responsible. For the defendant it is contended that the judge was wrong in assessing the damage in this way. In contract, as opposed to *28 tort, it is argued, a defendant is only liable for the damage caused by his own breach, not that caused by others even if they have all acted in concert. The mere failure of the defendant to work on June 16 would not have prevented the working of the shift, and accordingly he is only liable for a proportion of his wages or for the cost of a substitute. In our judgment, it is going too far to say that in no circumstances can A be liable for a share of the loss caused by A and B acting in concert. Indeed, were this not so it would in many cases be impossible to compensate a plaintiff for his real loss. This was recognized in Ebbw Vale Steel, Iron and Coal Co. v.

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Tew . 17 In that case the court was concerned with the measure of damages where a face-worker broke his contract. Having stated that the correct measure was the value of the output lost less the expenses which would have been incurred in obtaining it, Roche L.J. said 18 : In the case of a hewer such as Tew, the application of these principles is not difficult. It may be more difficult with another class of workman not so directly concerned in getting coal from the seam. But with another class of workman, a tribunal must do its best either to assess the contribution of the workman in question to output and arrive at a figure representing his notional output during the period of default, or if it cannot do that, it must decide upon the evidence what would have been the value to the employer of the services he did not give. It will be observed that in this judgment the output of or referable to the particular workman or workmen who are defendants in the proceedings has been throughout treated as the output which is material to be considered and dealt with by the trial judge. Apart from allegation and proof of a case of conspiracy or some clear allegation and proof of other good ground in fact and in law for connecting further and consequential loss of output, such as loss of output due to the cessation of work by men other than the defendant, with the particular workman's breach of contract, that further and consequential loss of output does not constitute a head of damage recoverable from a defendant. Where the breaches of contract by A and B acting in concert each contribute to the loss, then, we think, it would prima facie be right to value the loss of services of each as half the loss. Here the defendant is charged with breach of his contract of service in that he failed to work the Saturday voluntary shift on June 16, 1956, when it was his turn to do so. It is said that he took this course in concert with his fellow deputies. But he is not charged with the tort of inducing his fellow deputies to break their contracts or of the tort of conspiracy which might be constituted by the defendant

and his fellow deputies mutually inducing each other to break their contracts in this respect. *29 Therefore the matter must be dealt with as being simply a matter of breach of contract, albeit the defendant knew when he committed the breach that his fellow deputies intended to do the same. What, then, is the measure of damages in this particular case? If the defendant alone and on his own initiative had failed to work the Saturday voluntary shift on June 16, the measure of damages would, we apprehend, have been the net value to the plaintiffs of the work which he would have performed if he had worked that shift as he ought to have done. Prima facie, the measure of damages cannot be different because when he broke his contract in this respect he knew that his fellow deputies intended to commit similar breaches, except in so far as it would then be apparent that any damage likely to flow from the breach could not be avoided or lessened by their presence. Suppose that no question of supervision entered into the matter and that five face-workers were obliged by the terms of their contracts of service to work a special shift. Suppose further that if they did work it they would produce between them coal of the net value to their employers of 500, each contributing equally to the total. Suppose further that one of these face-workers failed, in breach of his contract, to work the special shift. The damages resulting from the breach would, we should have thought, be 100, whether or not the other four face-workers intended, to his knowledge, to absent themselves as well. There would be no question of charging him with the whole loss of 500. The present case only differs from that hypothetical one in that deputies exercise supervisory functions, so that the absence of any one of them may entail a far greater loss of output than the absence of one more face-worker. The question still is: what loss of output did the absence of the particular deputy charged with breach of his contract entail? The question in each case must be: what would his services have contributed to the net value of the output

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of the shift if the deputy concerned had duly worked it? That is in each case a question of fact. In the present case, though the defendant was undoubtedly acting in concert with others, it is not shown that his breach contributed to the loss. He would not, as we understand it, have worked at a coal face, but would have been doing safety work. How, then, can it be said that loss of output is any measure of his liability? In these circumstances we do not think it can be said that any damage has been proved against him beyond the cost of a substitute, say 3 18s 2d For these reasons we would allow the appeal to the extent of varying the amount of the judgment from 100 to 3 18s 2dAppeal allowed in part.

14. [1894] 1 Ch. 293 . 15. Ibid. 295. 16. [1894] 1 Ch. 293 , 296. 17. [1935] 1 L.J.N.C.C.A. 284. 18. 11 Ibid. 288. END OF DOCUMENT

1. R.S.C., Ord. 36, r. 58 : Where damages are to be assessed in respect of any continuing cause of action they shall be assessed down to the time of the assessment. 2. [1932] 1 K.B. 254; 423 (C.A. ). 3. (1880) 14 Ch.D. 542 . 4. [1893] 2 Ch. 171 . 5. [1920] 1 Ch. 57 . 6. [1899] W.N. 120; 34 L.J.N.C. 418 . 7. [1931] A.C. 83 . 8. [1934] 2 K.B. 17n . 9. [1934] 2 K.B. 1 . 10. (1932) 147 L.T. 503 . 11. [1934] 2 K.B. 1 . 12. Ibid. 13. [1944] K.B. 12; 60 T.L.R. 37; [1943] 2 All E.R. 598 .

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