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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Nicol v. Speirs, Gibb, & Co. [1899] ScotLR 36_428 (24 February 1899) URL: http://www.bailii.org/scot/cases/ScotCS/1899/36SLR0428.html Cite as: [1899] ScotLR 36_428, [1899] SLR 36_428 |
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Page: 428↓
[Sheriff of Renfrew and Bute.
In a case stated under the Workmen's Compensation Act 1897 the facts were as follows:—The pursuer, a miner, having lighted the train in order to fire a shot, and the shot not having exploded, after an interval of six minutes returned to examine the shot-hole, and while so engaged the shot went off, whereby he suffered serious injury. One of the special rules of the mine prohibited any person from entering the place where a
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shot was lighted until after the lapse of thirty minutes, if the shot failed to explode. It was not proved that the pursuer was aware of this special rule, and it appeared from the evidence that the rule was not generally observed in the pit. Held that the pursuer was entitled to compensation, as (1) the accident had arisen out of or in the course of his employment, and (2) his ignorance of the rule did not amount to “serious and wilful misconduct.”
This was a stated case under the Workmen's Compensation Act 1897, following upon an interlocutor pronounced by the Sheriff-Substitute of Renfrew and Bute ( Henderson) in a statutory arbitration in which John M'Nicol. the respondent in the case, sued Speirs, Gibb, & Company, the appellants, for compensation at the rate of 15s. per week.
The facts held by the Sheriff-Substitute to be proved were as follows—“(1) That on 28th July 1898 the respondent was employed as a miner in the appellants' fireclay pit or mine at the Caledonia Works, Paisley, under a sub-contractor named James Hamilton, miner, 27 New Street, Paisley; (2) That about 5 o'clock A.M. on that day the respondent, in the usual course of his employment, drilled a shot-hole in the material of said pit or mine, and having charged the same with blasting powder, put a straw in the usual manner, into the powder and set fire to the wick at the end of the straw and retired to a place of safety; (3) That the straw having burned out without an explosion having taken place, the respondent, after an interval of about six minutes from the time of having set fire to the straw, thinking that the shot had missed fire, left his place of shelter and went forward to the shot-hole, and while he was examining the hole the shot went off; (4) That in consequence of this explosion the respondent was severely injured and has lost the sight of both his eyes; (5) That at the pithead of the appellants' mine a printed sheet of ‘Special Rules’ under the ‘Coal Mines Regulation Act 1887’ is exposed to the view of all the miners in a shallow case with a hinged door, which can be closed in wet weather, but which door is not and cannot be locked; (6) That rule 95 of the special rules is as follows:—‘If a shot has been lighted and does not explode, no person shall enter the place where it was lighted until thirty minutes shall have elapsed;’ (7) That it was not proved that respondent was aware of this special rule, and that it appeared fully established on the evidence that this rule was not generally observed by the miners in this pit or mine, it being their practice to return to a delayed or missed shot whenever they thought in their opinion that it was safe so to return.”
On the above facts the Sheriff-Substitute found in law that the pursuer “met with his injuries by accident arising out of or in the course of his employment in terms of section 1, sub-section (1), of the Workmen's Compensation Act 1897, and that said injuries were not attributable to such serious and wilful misconduct as is contemplated by sub-section (2) ( c) of section 1 of that Act,” and therefore found the defenders liable to the pursuer in a weekly payment of 15s.
The questions of law stated for the opinion of the Court were as follows—“(1) Was the injury to the respondent caused by an ‘accident arising out of and in the course of the employment’ in the sense and within the meaning of section 1 (1) of the Workmen's Compensation Act 1897? (2) On the facts proved as to the publication of the special rules, was the Sheriff-Substitute justified in holding that the respondent's injuries were not attributable to such serious and wilful misconduct as is contemplated by section 1, sub-section 2 ( c), of the said Workmen's Compensation Act, in returning to the shot within thirty minutes after he had lighted the straw or fuse, in contravention of said rule No. 95?”
The Workmen's Compensation Act 1897 (66 and 61 Vict. cap. 37), section 1(1), enacts that “if in any employment to which this Act applies, personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation … (2) Provided that … ( c) if it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall be disallowed.”
Argued for the appellants—The Sheriff-Substitute was wrong. (1) The accident had not arisen “out of or in the course of” the respondent's employment. The Coal Mines Regulation Act 1887 (50 and 51 Vict. cap. 58), section 51, enacted “(1) There shall be established in every mine such rules (referred to in this Act as special rules) for the conduct and guidance of the persons acting in the management of such mine, or employed in or about the mine, as under the particular state and circumstances of such mine may appear best calculated to prevent dangerous accidents, and to provide for the safety, convenience, and proper discipline of the persons employed in or about the mine. (2) Such special rules when established … shall be observed in and about every such mine … in the same manner as if they were enacted in this Act. (3) If any person who is bound to observe the special rules established for any mine acts in contravention of or fails to comply with any of them he shall be guilty of an offence against this Act.” Section 57 (1) of the same statute enacted that every owner, agent, or manager of the mine should cause a copy of such special rules “to be posted up in legible characters in some conspicuous place at or near the mine, where they may be conveniently read by the persons employed.” It was part of the respondent's employment to know and observe the special rules of the pit— Heaney v. Glasgow Iron and Steel Company, May 27, 1898, 25 R. 903—and rule 95 of this pit expressly forbade him to return to the shot,
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if it had not exploded, until thirty minutes had expired from the time of lighting it. The Sheriff had not found expressly whether the respondent knew of this special rule or was ignorant of it, but in either case his proceeding to examine the shot six minutes after lighting it was outwith the course of his employment— Smith v. Lancashire and Yorkshire Railway Company, L.R. (1899), 1 Q.B. 141; Higginson v. Tapley (1869). 19 L.T., N.S. 690; and Low v. Pearson, 15 Times Reports, 124, also referred to. (2) Even assuming that the accident arose out of the course of the respondent's employment, he was debarred from claiming compensation, because his injuries were attributable to his own serious and wilful misconduct either in not observing rule 95, if he knew it, or in failing to make himself acquainted with it. A miner must be presumed to know the special rules of his pit, and must take the consequences if he deliberately violated any one of them— Heaney, ut sup. It was irrelevant to found upon the practice observed in the pit when the rule was there in black and white. There was nothing mysterious about the epithet “wilful.” It meant merely that the person whose conduct was so described was a free agent— In re Young & Heirston's Contract, L.R., 31 Ch. Div. 168, per Bowen, L.J., 175. Ignorance coupled with indifference as to whether mischief would arise from a particular act or not was enough to constitute wilful misconduct— Lewis v. Great Western Railway Company, L.R., 3 Q.B.D. 195, per Bramwell, L.J., 206. On the face of the facts as stated, the statutory requirements with respect to publication of special rules had been complied with. Argued for the respondent—The Sheriff was right. (1) The respondent in going back to the shot was engaged in no business or pastime of his own, but strictly and literally in the business of his employer. It was much too strained a construction of the Act to suggest that because any one of over a hundred or more special rules of varying degrees of importance was broken the course of employment at once ceased. The course of employment continued until it could be substantially made out that when the accident occurred the person injured had forsaken his employment and devoted his attention to something else— Durham v. Brown Brothers & Company, December 13, 1898, 36 S.L.R. 190. The case of Smith v. Lancashire and Yorkshire Railway Co., ut sup., was in pointed contrast to the present, and afforded a valuable illustration of what was meant by an accident arising out of the course of employment, (2) It was said that the respondent had been guilty of serious and wilful misconduct in not making himself acquainted with the special rules. But it did not appear that these rules had been affixed and exhibited in terms of the Coal Mines Regulation Act, and they were not binding until that had been done. The respondent was justified in not knowing the rules, and it would not do to say that he must be presumed to have known them, and to charge him with wilful misconduct in not observing them. Wilful misconduct was one thing, neglect or ignorance was another.
I begin with the first question—Was the injury to the respondent caused by an “accident arising out of and in the course of the employment?”
Subject to what I shall have to say on the second question, I think it hardly admits of dispute that the injury complained of was the result of an “accident.” The respondent, rightly or wrongly, thought that the shot which he prepared had missed fire, and in that belief, and using his judgment as to the time he ought to wait, went forward to examine the shot-hole. While he was examining the hole with its charge, the charge exploded and caused the injuries for which the respondent seeks compensation. I am here repeating the facts as stated in the case, and I think that the statement is descriptive of an accidental injury.
But then in order to entitle the respondent to compensation, the accident must be one “arising out of and in the course of the employment,” and this condition is negatived if it appears that the injury was sustained when the workman was not engaged upon his master's business, but was going about the premises on some business or pastime of his own. On the facts of the present case it is clear that when the respondent went to examine the shot-hole he had no motive or purpose other than that of attending to his master's business. This would of course be true if he had waited for the period of thirty minutes prescribed by the rules of the mine, and I think it is not the less true because the respondent, without intending to break any rule, returned to his work without waiting thirty minutes. It may be granted that the respondent ought not to have proceeded to examine the shot-hole after so short an interval as six minutes, yet as it results from the statement of facts in the case that the respondent did not know the rule, and that he acted according to the best of his judgment in the matter, it appears to me that the accident was one arising out of the employment which the respondent was exercising, not perhaps in the right way, but according to his own understanding and belief as to the nature of his duties.
If a workman, in the knowledge of a rule framed for the protection of himself and his fellow-workman, disregards the rule and is injured, a different question would
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Coming now to the second question, I notice that in sub-sec. ( c) the word “accident” is not used—the expression used is “that the injury to a workman is attributable to the serious and wilful misconduct of that workman.” I conclude from this that according to the theory of the statute the injury is not regarded as accidental if it is attributable to the serious and wilful misconduct of the person injured, and that the case considered in sub-section ( c) is rather an alternative to the principal enactment than an exception from it. Of course there may be misconduct having no relation to the employment, but resulting in bodily injury, and with such cases it is easy to deal. There is more difficulty in a case such as this, where the alleged misconduct consists in a breach of a material condition of the contract of employment, to which breach the injury is attributable. As already said, I consider that the respondent committed a breach of his contract in going to examine the shot-hole only six minutes after the fuse had failed to take effect, because he ought to have known the rule, and his omission to inform himself in a matter affecting his own safety, and probably the safety of other workmen, was in a sense misconduct. But in my judgment it was not serious and wilful misconduct, because it is consistent with all the facts stated in the case that the respondent believed it was left to his own judgment as a miner to determine how long it was necessary to wait before examining the shot-hole. In this connection I am disposed to give some weight to the finding that the rule in question was not generally observed in the mine, and that it was the practice of the miners “to return to a a delayed or a missed shot whenever they thought in their opinion that it was safe so to return.” Now, this general neglect of the rule rather suggests the absence of proper supervision. In any view,’ the respondent was not put on his inquiry as to the existence of a definite rule, and if he only followed the practice which he found existing in the establishment, his fault would not, even by a strict disciplinarian, be classed as serious and wilful misconduct.
I therefore propose that we should answer both questions in the affirmative, and remit to the Sheriff to make an award of compensation in terms of the findings set forth in the case.
Upon the second question I think it might very well be that a miner's disobedience to the special rules of the mine might amount to serious and wilful misconduct, and it may be that if he were in fact ignorant of the particular rule which he had broken, the case might come under that definition, if his ignorance of the rule were owing to serious and wilful misconduct. But then I do not think that any such case is raised upon the facts stated by the Sheriff. All that appears from what the Sheriff has found is that this man's ignorance of the rules may have been innocent, or may have been due merely to negligence, and in neither case would it in my opinion be wilful misconduct. The Sheriff says that as matter of fact he did not know the rule. He says also, as Lord M'Laren has pointed out, that the rule was not generally observed by the miners in this pit; and then he makes a statement as to the method in which the rules were made public, from which I think it impossible to infer that any ignorance on the part of the miner must necessarily have been owing to his misconduct. I think if the question were whether the respondent in this appeal were negligent or not in failing to inform himself of the rules, we should not be in a position to determine it without more specific information than the Sheriff has
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The Court answered both questions in the affirmative and remitted to the Sheriff to make an award of compensation in terms of the findings set forth in the case.
Counsel for the Appellants— D-F. Asher, Q.C.— J. Wilson. Agents— Anderson & Chisholm, Solicitors.
Counsel for the Respondents— Shaw, Q.C— Scott Brown. Agents— Mitchell & Baxter, W. S.
