Scottish Court of Session Decisions

Archibald Russell, owner or lessee of the Barncleuth Colliery at Hamilton, contracted with Robert and Hugh Muir, pit-sinkers, Blantyre, to sink a shaft for him in No. 1 pit Barncleuth Colliery, from the main to the splint coal, of a certain size, at £8 per fathom. By the contract, which was in writing, the Muirs were bound to put in all necessary wood that might be required during the sinking of the shaft, and to provide powder and fuse and a “hillman,” while Russell was bound to supply them with all the tools required for that purpose, and to provide an engineman. The Muirs undertook liability for any accidents that might occur through the sinking operations.

Wood was supplied by Russell, and put in by the Muirs where they thought it necessary. The Muirs worked themselves, and employed 12 or 13 workmen in various “shifts.” These men were engaged and paid by the Muirs. They were not entered in Russell's books. They did not sign the colliery rules. No “off-takes” were made from their wages for sharpening picks and the like, such as Russell's miners had to pay. The Muirs paid a chargeman or gaffer to take charge when they were not there. Russell's oversman was daily in the shaft which the Muirs were sinking, to see and to report that it was sunk according to the contract size, and was well done. Russell's fireman was also sent down by him to watch against fire and attend to the lamps. An explosion in the shaft which was being sunk would have been dangerous to the other workings, and to the miners in Russell's employment there.

On the 19th of May a large stone or stones fell from the side of the shaft upon James Robertson, one of the Muirs' men, while he was working at sinking the shaft, and killed him.

His widow (along with his minor and pupil children) raised this action in the Sheriff Court at Hamilton, against Russell, at common law and under the Employers Liability Act, for compensation for his death, alleging that he had been “employed by the defender, or those for whom he is responsible.”

She averred that the cause of the accident was insufficient “wooding” of the shaft. “(Cond. 6) It was the duty of the defender, or of his overseer, or of some other person having superintendence within the meaning of the Employers Liability Act 1880, and for whom the defender is responsible within the meaning of said Act, to see that there was sufficient wood or other propping or supports at the sides of said shaft, or, at all events, it was the duty of the defender or his overseer, or some other person having superintendence as aforesaid, and for whom the defender is responsible, to see that sufficient wood or other propping was supplied to the workmen engaged in sinking shafts when so engaged. (Cond. 7) Specially it was the duty of the defender or his overseer, or some other person having superintendence as aforesaid, and for whom the defender is responsible, or otherwise, to see not only that the said James Robertson was supplied with a sufficient quantity of wood or other propping for the sides of said shaft, but also to put in said wood or propping so as to effectually support the sides of said shaft and prevent the sides from falling in, and it was their duty not to allow the said James Robertson to work at said shaft while the sides thereof remained unsecured by propping.”

The defender admitted that the accident was caused by insufficiency of wood or other propping at the part of the shaft from which the stone fell. He maintained that the deceased was then working in the employment of the Muirs, and was not and never had been in his (defender's) employment.

He pleaded—“(2) The deceased James Robertson not having been in the employment of the defender at the time when the accident occurred, the pursuers have no claim against the defender.”

The Sheriff-Substitute ( Birnie) pronounced this interlocutor—“Finds (1) that on 19th May 1883 the deceased James Robertson was killed by a fall of stones or other material from the side of a shaft which he was sinking at No. 1 pit, Barncleuth Colliery, belonging to the defender, and that the pursuers are his widow and children; (2) that he was in the employment of Robert and Hugh Muir, the contractors for sinking said shaft: Finds in law that he was not killed through the fault of the defender; assoilzies the defender from the conclusions of the action; finds him entitled to expenses,” &c.

“ Note.—The Muirs were the contractors for sinking the shaft, the defender or his manager having no right to interfere except to see that the contract was carried out. The defender

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therefore is not liable— Murray v. Currie, L.R., 6 C.P., '24; Milligan v. Wedge, L.R., 1 Q.B. 714.

The pursuer founded on the recent Scotch case of Morrison v. Baird & Co., Dec. 2, 1882, 10 R. 271, but all that was decided in that case was that an injured party may, under the Employers Liability Act of 1880, claim damages if employed indirectly, and that it was matter for inquiry whether the injured party was employed by the Messrs Baird or by the contractor.

It will be observed in the present case that the accident occurred through the want of lining in a weak part of the shaft—a matter expressly within the contract with the Muirs.”

The Sheriff ( Clark) on appeal adhered.

“ Note.—The real question here is, whether or not the deceased was the servant of the defenders, or whether he was the servant of the parties Muir only? and this involves the further consideration in what relation the Muirs stood to the defenders. Now, it seems to me on the evidence that the deceased was the servant of the Muirs and not of the defenders. He was engaged by the Muirs; it was their orders he was bound to obey; he could be dismissed by them; he was paid by them. In none of these respects had the defender anything to do with him. Again, as regards the Muirs—as appears from their written contract with the defender and from their mode of procedure—they were not the defender's servants, but his contractors to do a special piece of work. They were entitled to do it after their own fashion; he could not control them, or say you shall do it in this way or in that way; all that he could demand of them was that they should adhere to their undertaking, and all the control he could exercise over them was to see that they did adhere to their undertaking. If I am right in thus construing the evidence, I fail to see any ground on which liability could be established against the defender as regards the unfortunate accident which has taken place.

This is not a case in which the defender can be said to have sought to relieve himself of liabilities imposed on him in the ordinary course of his business by devolving them on some man of straw clothed with the qualification of a con tractor. There is no reason to doubt that the Muirs were bona fide contractors with the defenders—indeed, it is proved that their contract was one well known and recognised in the trade, and that such contracts are of quite usual occurrence.”

The pursuers appealed to the Court of Session, and argued—The relation of master and servant existed between the defender and all the men working in his mine. There was therefore at common law personal fault on the defender's part in not providing a proper organisation, by efficient superintendence or otherwise, for the protection of all men working in the mine.— Sadler v. Henlock, 24 L.J., Q.B. 138; Weems v. Mathieson, 4 Macq. 215. It did not affect the application of the rule respondeat superior that the workmen was engaged and paid by the pit-sinker. He was working for the benefit of the mine-owner. — Woodhead v. Gartness Mineral Co., Feb. 10, 1877, 4 R. 469. (2) Fault was attributable also under the Employers Liability Act, for it was held applicable to a servant not directly engaged by the master in the case of Morrison v. Baird & Co., Dec. 2, 1882, 10 R. 271, the circumstances of which were parallel with those of the present case.

Counsel for the defender was not called upon.

At advising—