(In the Court of Session,
Subject_Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 1 (1) — “Out of and in the Course of the Employment” — Breach of Regulation Imposed by Employers — Miner Returning to Shot-hole Within Prohibited Time.
A miner who was working with two shot-firers in driving a stone mine in a pit retired with them, after two shots
had been lit, to a place of safety. One of the shots missed fire, and the miner, in breach of a notice issued by the employers which he had read, and which, after referring to the Explosives in Coal Mines Order of 1st September 1913, provided that if a shot missed fire no person should on any pretext approach the shot-hole before the expiry of the period mentioned in the Order, returned to the shot-hole within the prohibited time and was injured by an explosion.
Held ( aff. the judgment of the First Division) that the miner was not acting within the sphere of his employment at the time of the accident, and appeal dismissed.
The case is reported ante ut supra.
The claimant appealed to the House of Lords.
At delivering judgment—
This case arose before the making of the amending Order of August 1922, and of course before the passing of the Workmen's Compensation Act 1923, and therefore it has to be decided on the law as it stood before those enactments were passed.
The notice, which is the essential thing in this case, after referring to the Explosives in Coal Mines Order of the 1st September 1913, added these words—“And no person shall in such circumstances”—that is when an attempt has been made to fire a shot—“on any pretext return to the place before the expiry of the above-mentioned periods respectively from the attempt to light the shot.” Those words clearly added a new and substantial prohibition to the provisions of the statutory regulation. That prohibition was binding upon all the workmen at the mine, including the appellant. The appellant read it, and in breach of it, and in spite of it, he went to the place where the attempt had been made to fire a shot and was seriously injured.
On the authorities, which are really quite clear, in so doing he was going outside the scope of his employment, and therefore he did not become entitled to compensation under the Acts.
I will only mention one other point. It was suggested that the employer could not add to the statutory regulations in this way. Of course, he could not add to them in this way so as to make the addition statutory and enforceable by penalty, but clearly there was nothing to prevent him from making an additional regulation of his own, even although it dealt with the same subject-matter as that which was dealt with by the statutory regulations, and the regulations which he made were binding upon the workmen who knew of them. I see no option but to hold that the Court of Session was right and that this appeal ought to be dismissed.
Their Lordships ordered that the interlocutor appealed from be affirmed, and the appeal dismissed with costs.
Counsel for the Appellant—The Solicitor—General ( Fenton, K.C.)— Keith. Agents— Simpson & Marwick, W.S., Edinburgh— Deacon & Company, London.
Counsel for the Respondents— Graham Robertson, K.C.— Russell. Agents— W. & J. Burness, W.S., Edinburgh— Beveridge & Company, Westminster.