Scottish Court of Session Decisions

Mrs Mary Jane Queen or Lynch, widow of Daniel Lynch, Bellshill, for herself and on behalf of her pupil children, claimed compensation under the Workmen's Compensation Act 1897, from William Baird & Company, Limited, coalmasters, Bothwell, in respect of the death of her husband Daniel Lynch, who was killed while in their employment by the explosion of a shot in one of their pits.

The matter was referred to the arbitration of the Sheriff-Substitute of Lanarkshire ( Thomson) who awarded compensation. The defenders appealed and obtained a case.

The case stated—“The following facts were admitted or proved—(1) That the deceased Daniel Lynch was a brusher in the employment of Morrison Bryce, who had a contract for the brushing work of the Bothwell Park Colliery belonging to the respondents. (2) On the night of 27th May 1902 Bryce was unable to be at his work, and in his absence deceased took charge of the shift. (3) The work consisted in the making of manholes, in the course of which blasting is necessary, and the brushing squad prepare the necessary shots by boring holes and filling the holes with charges of an explosive called saxonite; the charges are then fired by the fireman, who uses a pocket electric battery for the purpose. (4) A shot had been fired in the ordinary way in No. 3 manhole, and some time afterwards a hole about 2 feet 6 inches deep was bored and a charge rammed in and stemmed, and made ready to be fired in No. 4 manhole. (5) About midnight the fireman appeared and asked whether they had a shot ready, and the deceased then stated, contrary as he well knew to the fact, and apparently in fun, that there was none ready, whereupon the fireman went away. (6) As the fireman did not return, and when sent for could not be found, the deceased left No. 3 manhole, where the squad then was, and proceeded to No. 4 manhole, distant about 20 yards. (7) Almost immediately after his arrival there the shot went off, and the deceased was found lying dead close to the shot; one of his hands had been blown off, and the other was nearly severed; his head was cut and bruised and he was otherwise in jured by the explosion. (8) Saxonite does not explode spontaneously, but requires either ignition or pressure or heat to set it off. On this occasion it had not been fired by electricity, nor exploded by heat, or any natural ‘crush’ occurring in the mine. No one else was near the spot, and no tools were found lying anywhere near it. (9) The only way in which the accident can be accounted for is, and I accordingly found in fact, that the deceased had attempted to pull out the wires which pass through the charge and are connected at the bottom of the charge with the detonator containing fulminate of mercury and chlorate of potash. These wires are designed to be connected outside the charge with the wires of the pocket electric battery before referred to. The ends of the wires within the detonator are connected by a platinum bridge, whereby a circuit for the electricity is formed. (10) The pulling out of the wires had occasioned sufficient friction in the detonator to cause the explosion, which was thus brought about by the act of deceased. (11) The general rule 12 ( e) referred to in the defences is well known to the miners, and was well known to deceased, and it is carefully enforced. (12) It is not proved that the deceased knew the mechanism of the detonator or that the pulling of the wires was in itself dangerous. (13) The parties are agreed that if compensation be due the amount is £253, 10s.

“In these circumstances I found that the pulling of the wires did not amount to a breach of the general rule No. 12 ( e) of the Coal Mines Act, which provides that ‘No explosive shall be forcibly pressed into a hole of insufficient size, and when a hole has been charged the explosion shall not be unrammed, and no hole shall be bored for a charge at a distance of less than six inches from any hole where the charge has missed fire,’ that the deceased was not guilty of serious and wilful misconduct within the meaning of said Act, and that the said accident arose out of and in the course of the deceased's employment.

The questions of law for the opinion of Court are—(1) Did the action of the deceased in pulling the wires of said shot amount to a breach of said general rule No. 12 ( e) of the Coal Mines Regulation Act 1887 to 1896? (2) Was the deceased guilty of serious and wilful misconduct within the meaning of section 1 sub-section 2 ( c) of said Act? (3) Did said accident arise out of and in the course of the deceased's employment within the meaning of section 1 of said Act?”

Argued for the appellants—(1) On the facts the deceased had been guilty of serious and wilful misconduct. He had made a false statement to the fireman, and that statement had led to the accident. Further, the pulling out of the wires was an act of gross carelessness. The wires must have been pulled in an attempt to haul out the charge, and it was therefore an act of unramming, and an infringement of special rule 12 ( e) of the Coal Mines Regulation Act 1887. (2) The accident did not arise out of and in the

Page: 216↓

course of his employment. The deceased was a brusher in the mine, and it was no part of his duty to touch the detonator.

Argued for the pursuer and respondent—(1) In this case there had been no serious or wilful misconduct. The deceased had acted neither in breach of special rule No. 12 nor in breach of an order given by a superior. All the cases in which there had been held to be serious or wilful misconduct on the part of the workman fell within one of these two categories. The deceased had not been attempting to pull out the wires in order to take out or unram the explosive. His intention was to render the explosive harmless by removing the wires. The false statement was too remote to be taken into account as a cause of the accident. (2) The accident arose out of and in the course of the employment. The deceased was performing what he considered his duty in the service of his employers when the accident happened.