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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Baird & Co. v. M'Monagle [1881] ScotLR 19_256 (17 December 1881)
URL: http://www.bailii.org/scot/cases/ScotCS/1881/19SLR0256.html
Cite as: [1881] ScotLR 19_256, [1881] SLR 19_256
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SCOTTISH_SLR_Court_of_Session
Page: 256↓
Court of Session Inner House Second Division.
[Sheriff-Substitute of Lanarkshire.
v.
Facts:
A miner who observed the roof of a part of the pit close to which he had to pass to be insecure, gave warning of it to the oversman, who told him to go on working and he would get it propped. The oversman had it propped insufficiently and the miner went on working, though not satisfied with the way in which it had been propped. Shortly thereafter the roof fell in at the place of the state of which the miner had complained, and he was injured. Held that he was not barred from recovering damages by the fact that he had gone on working in the knowledge of the danger.
The Employers Liability Act 1880 (43 and 44 Vict. cap. 42) provides by sec. 1—“Where after the commencement of this Act (1st January 1881) personal injury is caused to a workman” (sub-sec. 1) “by reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the employer,” … the workman … shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work. Section 2 provides—“A workman shall not be entitled under this Act to any right of compensation or remedy against the employer in any of the following cases, that is to say—(sub-sec. 1) under sub-sec. 1 of sec. 1, unless the defect arose from or had not been … remedied owing to the negligence of the employer, or of some person in the service of the employer, and entrusted by him with the duty of seeing that the ways … were in proper condition…. (Sub-sec. 3) In any case where the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer, or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence.”
The Mines (Coal) Regulation Act 1872 (35 and 36 Vict. cap. 76) by sec. 52 provides that there shall be established in every mine to which that Act applies such special rules for the conduct and guidance of the persons acting in the management of the mine as may appear best calculated to prevent dangerous accidents and to provide for the safety and proper discipline of the persons employed in or about the mine, and by the same section statutory force is given to such special rules when duly published and approved by the Secretary of State. Section 57 provides for the posting up at a conspicuous place at or near the mine of such special rules, and for the furnishing of a copy to each person employed in the mine who may apply for a copy.
This was an action raised by Conn M'Monagle, miner in Uddingston, against William Baird & Company, coal and iron masters. The pursuer concluded for £50 as damages for bodily injury sustained by him through the fall of a stone from the roof in the defenders' Bothwell Castle Pit, from the fault of the defenders.
The mine was one to which the Mines (Coal) Regulation 1872 Act applies, and the pursuer knew and had a copy of the Special Rules. He deponed—“I noticed something wrong with the roof in the morning, and went to the oversman and the roadsman about it—John Kirkpatrick and Osborne. Kirkpatrick told me to work away, and that he would get a man and get it propped up. The roadsman came afterwards and put up two props and one across, and went away leaving the rest undone. I did not think it was propped all right, but I worked away, expecting them to come back and get it finished. I had drawn sixteen hutches by this time, taking them in and out. I was going with the sixteenth when the fall took place…. I knew that the place was dangerous whenever I saw it. It was my place to warn
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if I saw it bad—to report it. There was a young man got his leg broken within two yards of the same place before that. I know special rule No. 68. [The terms of this rule are quoted in the note of the Sheriff-Substitute.] Whenever I went down I asked if all was clear. They told me all was clear. (Q.) Speaking from your own knowledge, you knew that that was a dangerous place ?—(A.) I knew that the roof was bad. I warned the oversman about it. He was standing in the same place where I got hurt. (Q.) Knowing it was a dangerous place, you went with your hutch there?—(A.) I did not know it was dangerous. I knew that the whole road was dangerous, and we had to take the chance, the one after the other. We were kind of feared for it, but not very On account of the oversman telling us, we wrought away ‘on that speculation.’ “ The proof was somewhat conflicting, but the defenders did not on appeal dispute the findings of fact contained in the following interlocutor of the Sheriff-Substitute ( Spens)—“Finds that on 25th February last the pursuer was working as a drawer in Bothwell Castle No. 2 Pit: Finds that on the morning of that day the pursuer made complaint to the witness Kirkpatrick, who was on that day acting as oversman in the said pit, that the roof of the main road in proximity to Docherty's working-place was in a bad state: Finds that Kirkpatrick told the pursuer to work away, and that he would get a man and get it propped up: Finds the roadsman did after that put up a prop or two; but finds the main road roof was not properly propped, and that when the pursuer was drawing along said main road on the said 25th February a stone fell from the roof, by which the pursuer was injured in the leg, back, and head: Finds pursuer was off work some six weeks, but he has adduced no evidence to show that his injuries were of a permanent or serious character: Finds, as matter of law, that the accident occurred through the fault or negligence of Kirkpatrick the oversman, or Osborne the roadsman: Finds also, as matter of law, that although pursuer knew that said roof was in a dangerous state, his claim is not in the circumstances defeated either at common law or by the special rules of the pit: Repels accordingly the defences, and decerns against defenders for the sum of £15 sterling, which are hereby assessed as damages,” &c.
The Sheriff-Substitute appended this note:—“This is the only one of the five actions directed against the Messrs Baird in which it appears to me that any question of difficulty arises. Facts so far are in dispute in this case; but I believe from the evidence of Docherty and M'Monagle that it is the case that on the morning of the accident in question it was pointed out to Kirkpatrick, the acting oversman, that the roof at the site of the accident was in a dangerous state. Docherty, it appears, offered to Kirkpatrick to prop, but this offer was declined, and if pursuer and Docherty's evidence is to be believed, he directed both Docherty and pursuer to work away, saying he would get the matter put right.
…. It seems to me that for an accident caused by a fall in the roof of the main road through the neglect of the oversman to get it propped, or through the fault of the roadsman in not obeying the oversman's orders, or otherwise from his not seeing to the safety of the main road, the employers are responsible. There was either fault on the part of the oversman Kirkpatrick in not seeing that the work was done, or in the roadsman Osborne in not carrying out the orders which he received from Kirkpatrick, if it was not his duty as roadsman to see to the safety of the main road, and this being so it hardly seems open to question, under the first section of the Employers Liability Act, that for an accident caused in such circumstances the employer is liable, subject, however, to a consideration of the question of whether under the common law rule that if a workman goes into a known danger he cannot claim compensation for an injury resulting from the apprehended danger, the claim is in this case barred. The employers' position is strengthened in this case also by the special rules of the pit; for by the 68th special rule it is provided that if ‘miners, drawers, or other workmen shall meet with or see any fall from the roofs, or shall observe any dangerous places in the roofs, walls, or elsewhere, in their progress, they shall not pass the same, but shall instantly report the occurrence to the manager or roadsman, or other person known to have the maintenance of such places under his charge, and miners, drawers, and other workmen shall not return past the fall or dangerous place until the same shall have been made secure, which it shall be imperative on the manager, oversman, or other person having the charge, forthwith to do.’ The evidence, I have said, goes to show that the oversman Kirkpatrick directed the pursuer to work away and he would get the matter put right. I should be very doubtful about the answer to the question whether there was liability had it not been for the case of Macaulay v. Brownlie, March 9, 1860, 22 D. 975. In that case a labourer in the employment of a builder was ordered by the foreman to carry stones on a scaffolding after the foreman had been told of and admitted its insecurity. Although the labourer thought the scaffolding insecure he obeyed the order, and was severely injured, and for these injuries the master was held responsible. In commenting upon the question under discussion Lord Deas said—‘It is true that the pursuer doubted the safety of the gangway, but he was ordered to go upon it, and he had no alternative but to obey or run the risk of dismissal without wages, and perhaps without other employment to go to.’ If the pursuer had declined to draw, it would have stopped the working of the miners to whom he was drawing; and had he refused to work away as directed by Kirkpatrick it might have led to dismissal. With some hesitation, therefore, I am of opinion that in spite of pursuer working on in the face of a known danger the defenders are responsible, in respect he went on with his work under the orders of the oversman.”
The defenders appealed to the Court of Session, and argued—Before the Employers Liability Act a workman who went on with his work in the face of a seen danger, and was injured from the cause of danger he had seen, could not recover damages, unless, indeed, he had reason to believe that the danger was in course of being remedied and his safety provided for, and just so a stranger to the work could never claim damages from a cause he himself had seen and of which he knowingly
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Counsel for pursuer were not called upon.
At advising—
The Court affirmed the interlocutor of the Sheriff-Substitute.
Counsel for Appellant— Solicitor — General (Asher, Q.C.)— J. P. B. Robertson. Agents— Webster, Will, & Ritchie, S.S.C.
Counsel for Respondent— Brand— J. M. Gibson. Agent— Thomas Dowie, S. S.C.