Scottish Court of Session Decisions

This was an appeal in an arbitration under the Workmen's Compensation Act 1897, between James Daily, Clyde Place, Mother-well, claimant and respondent, and John Watson, Limited, coalmasters, carrying on business at Watsonville Colliery, Mother-well, appellants.

The claimant and respondent claimed compensation under the Workmen's Compensation Act 1897 from the appellants in respect of the death of his son Joseph Daily.

The Sheriff-Substitute ( Davidson) found the following facts to be admitted or proved: “(1) That the said Joseph Daily was in the employment of the appellants on 25th October 1899 as a miner at No. 2 Pit, Watsonville Colliery aforesaid, when he met with an accident, from the effects of which he died on 3rd November 1899 in the Royal Infirmary, Glasgow; (2) that at the time of the accident the said Joseph Daily was carrying several cartridges of gunpowder in his hand for firing shots, and had at the same time a lighted naked lamp in his cap; (3) that a spark from said lamp ignited the cartridges and caused an explosion which resulted in the accident; (4) that he was not directly told not to carry the cartridges in the manner he did, but that the officials did not know that the deceased and those working with him carried cartridges in this way; (5) that a special canister was provided to carry cartridges from the place where the principal supply was kept to the coal face, but the men, outside of the officials' knowledge, did not always make use of it, and this practice was common among miners; and (6) that the management of the pit did not consider it necessary to place such a canister in any other part of the section.”

The Sheriff-Substitute decided that the said Joseph Daily “in so acting had infringed Additional Special Rule No. 1 in force at said colliery, which rule is to the following effect:—‘While charging shot-holes or handling any explosive not contained in a securely closed case or canister, a workman should not smoke or permit a naked light to remain on his cap, or in such a position that it could ignite the explosive;’ that it must be assumed he knew the special rules; that he was thus guilty of a contravention of said Special Rule No. 1; that such a breach of the rule referred to, however, was not serious and wilful misconduct in the sense of the Workmen's Compensation Act, and that therefore the respondent was entitled to £49, 8s. as compensation.”

The question of law for the opinion of the Court was as follows:— “The injury to the said Joseph Daily, from which he died, being due to the explosion before referred to, by his having permitted a naked light to remain in his cap while carrying in his hand several cartridges of gunpowder for firing shots, not enclosed in a securely closed case or canister, in breach of No. 1 Additional Special Rules, of which he must be presumed to have known— Whether said injury was attributable to serious and wilful misconduct on the part of the deceased within the meaning of section 1, sub-section (2) ( c) of the Workmen's Compensation Act 1897?”

Argued for the appellants—The facts disclosed a case of “serious and wilful misconduct” — Callaghan v. Maxwell, Jan. 23, 1900, 37 S.L.R. 313. The special rule infringed by the deceased was such as any man of prudence would observe. The neglect of it might endanger the lives of others, and was thus clearly “serious” misconduct. It was also “wilful.” In re Young (1885), 31 Ch D 168, per Bowen, L.J.; Lewis v. Great Western Railway Company (1877), 3 Q.B.D. 195, per Bramwell, L.J.; M'Nicol v. Speirs & Gibb, February 24, 1899, 1.F. 604.

Argued for the respondent—The question determined by the Sheriff-Substitute was a question of fact, not of law, and appeal under the Act was competent only on a question of law. But if it was a question of law the Sheriff had rightly decided it. It was not disputed that the deceased's violation of the special rule amounted to negligence; but it was not necessarily serious and wilful misconduct. The rule was merely a recommendation that a workman “should not carry a naked light;” not an imperative prohibition. As to whether it was “wilful,” the deceased was not directly told of the rule; and in any case, it was neglected by the other workmen in the mine—See Rumball v. Nunnery Colliery Company (1899), 80 L.T. 42.