Scottish Court of Session Decisions

In consequence of the death of the late Joseph M'Gill. miner, his widow and children sued Bowman & Company, mine-owners, for damages. The defenders contracted with James Swan, contractor, to sink their mine to the parrot seam. The conditions provided, inter alia—“ Men.—The contractor to pay his own pitheadman, and take upon himself the responsibility of their conduct when at work, and any accident that may befall them in the execution of his orders. He must therefore satisfy himself as to the condition and strength of all materials and tackling provided for him, it being understood that he may stop work till the necessary alterations or repairs are made. Materials. — The proprietors will furnish all timber, nails, and other necessary materials, but the contractor will provide his own powder, fuze, oil, back skins, hats, and shovels, all tools furnished by the proprietors to be returned at end of contract or to be charged for same.”

The deceased was a servant of the contractor, and while working in the mine he was killed by the fall of a bogie down the shaft.

The pursuers averred—“The accident happened through the said pithead appliances being insufficient. They were of primitive construction, and had they been such as are in ordinary use the accident could not have happened. The fatal injuries sustained by the said Joseph M'Gill senior were caused by the fault and negligence of the defenders, or those for whom they are responsible, in providing insufficient appliances in connection with the sinking of said shaft. The defenders failed to provide the fencing at the top of said shaft provided for in rule 19 of the general rules contained in the Coal Mines Regulation Act 1887. Had the shaft been fenced no accident of the nature founded on could have taken place.”

The pursuers pleaded—“(1) The death of the said Joseph M'Gill senior having been caused through the insufficient appliances provided by the defenders while he was employed at their pit, the pursuers are entitled to decree. (2) The death of the said Joseph M'Gill senior having happened through the failure of the defenders to fence the shaft referred to as required by rule 19 of the general rules contained in the Coal Mines Regulation Act 1887, decree ought to be pronounced as craved.”

The defenders pleaded—“(2) The said Joseph M'Gill senior not having been in the employment of the defenders at the time of the accident, the defenders ought to be assoilzied. (3) The said accident not having been caused through the fault of the

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defenders, or of those for whom they are responsible, they should be assoilzied. (4) The pursuers' averments as to the insufficiency of the pithead appliances (including the fencing) being unfounded in fact, the defenders should be assoilzied.”

The following facts were established on a proof before the Sheriff-Substitute — The defenders supplied the pithead appliances for sinking purposes as follows—A “kettle” was suspended by a rope over a pulley above the shaft, a line of rails was laid up to the shaft-mouth, on which a bogie travelled, about a yard and a-half from the edge of the shaft there was a moveable wooden block which, when laid across the rails, prevented the bogie travelling to the shaft-mouth; the shaft-mouth was furnished with a covering-table on wheels, which could run off and on, and which moved in a different direction from the rails on which the bogie travelled; in working with these appliances, when it was desired to lower the “kettle,” it was the pithead-man's duty, after seeing that the covering table was on the mouth of the shaft, to open the block, run the bogie with the empty “kettle” on it on to the covering-table, attach it to the clevis and rope, signal to the engineman to raise the “kettle” off the bogie, that being done, to run off the bogie, close the block, remove the covering-table from the shaft-mouth, and the “kettle” was then lowered into the shaft and filled. On the night of the 7th and morning of the 8th April 1889, David Gray, who was then in the employment of Swan, was on duty as pithead-man on the night-shift. The fencing had been removed from the pit-mouth for the purposes of the work; between three and four o'clock on the morning of 8th April, while the rope was coming up the shaft empty, i.e., without the “kettle,” Gray was standing at the back of the covering-table ready to push it over the shaft-mouth, when his lamp blew out, and he had to go and light it; after he came back from lighting his lamp, forgetting that the covering-table was not on the shaft-mouth, he opened the block and ran the bogie and “kettle” on to the unprotected shaft-mouth, with the result that the bogie and “kettle” went down the shaft and killed M'Gill, who was working below.

The pursuers called Mr Atkinson, a Government Inspector, who deponed that the pithead appliances were reasonably safe. He admitted that safer appliances might have been adopted.

Upon 1st April 1890 the Sheriff-Substitute ( Gillespie) found “that the pithead appliances provided by the defenders were objectionable, in respect that the rails were laid up to the mouth of the shaft, while the covering-table moved in a different direction from the rails, and there was no sufficient protection to prevent the bogie being pushed into the shaft when the covering-table was off it; that this construction of pithead appliances has been generally superseded by other constructions which prevent the bogie being pushed down the shaft by the carelessness of the pithead-man, and are recognised by practical men as safer; that no sufficient reason has been shown for the adoption by the defenders of a method deficient in safety: Finds in law that a duty being incumbent on the defenders to provide pithead appliances, and they having provided appliances of an unnecessarily dangerous construction which allowed the accident to happen, they are liable to the pursuers in damages and solatium for M'Gill's death.”

Upon 27th June the Sheriff ( Mackay), on appeal, adhered.

The defenders appealed, and argued—They had no duty in seeing to the safety of the deceased, who was a servant of the contractor. The defenders' sole duty was to provide the necessary materials; they did so. Swan accepted them as being sufficient for his purpose, and therefore the defenders had fulfilled their contract. The pursuers had no recourse against the defenders except under contract. It was not shown that the defenders had failed in their contract. The case of Murdoch v. Mackinnon, March 7, 1885, 12 R. 810, did not apply. There the defenders were the employers of the deceased. The present case more resembled Robertson, &c., v. Russell, February 6, 1885, 12 R. 634. But assuming that the defenders were M'Gill's employers, and so liable for any fault they committed which led to his injury, the defenders had committed no fault. The materials were quite efficient. It was admitted by the witnesses, as appeared from the Sheriff's notes, that the system which was adopted here was a well-known system, and was “reasonably safe” for the protection of the men working below. It was admitted that the system used must not be of an inefficient and antiquated form, but there was no necessity laid upon employers to use the latest invented system for doing their work— Wisely v. Aberdeen Harbour Commissioners, February 2, 1887, 14 R. 445. The provisions of the Coal Mines Regulation Act 1887 did not apply in this case, as that Act was framed to protect miners working in the mine; here they were sinking a shaft, which was a different kind of operation, and required different precautions.

The respondents argued—The pursuer's husband was in the employment of Swan, but still the defenders were liable. They failed in their duty under the Coal Mines Regulation Act. It was shown by the evidence, and was held by the Sheriffs, that this system was not reasonably safe, as there were many new systems by which this accident could have been entirely avoided.

At advising—