Scottish Court of Session Decisions

This was a case stated for appeal by the Sheriff-Substitute at Hamilton, acting as arbitrator under the Workmen's Compensation Act 1897, in an arbitration at the instance of John M'Ghie, miner, Bells-hill, respondent, against the United Collieries, Limited, appellants.

The case set forth the facts as follows—“This claim is made by the respondent in consequence of the death of his son James M'Ghie, who resided at Millheugh Bridge, Larkhall, upon whom, as is alleged, he was totally dependent, and whose death took place upon 11th June 1903 from injuries received upon 10th June while in the course of his employment by falling down the shaft from the Virtuewell seam to the Kiltongue seam in Skellyton Colliery, Larkhall, belonging to the appellants. The case was heard before me upon the 23rd December 1903, when the following facts were admitted or proved—(1) That on 10th June 1903 the deceased James M'Ghie was a driver and bottomer in the Virtuewell seam of the Skellyton Colliery, Larkhall, occupied by the respondents, and as such was a ‘workman’ within the meaning of the Workmen's Compensation Act 1897; (2) that on said date the deceased drove a loaded hutch to the gate which fences off said seam from the shaft, and having unyoked the pony which drew the hutch, opened the gate without signalling for the cage to be brought to the gate; (3) that the cage at the time was not opposite the gate, but was down the shaft at the Kiltongue seam, twenty fathoms below the Virtue-well seam; (4) that the deceased, presumably through absent-mindedness, failed to notice (although there was sufficient light to enable him to do so) that the cage was not at the gate, and proceeded to push the hutch from behind till it fell down the shaft; (5) that the deceased was drawn after it, and was fatally injured by the fall; (6) that the respondent is the father of the deceased, and was partially dependent upon him, receiving from 7s. 6d. to 10s. per week out of the deceased's wages, which were at the rate of £1, 9s. 4d. per week. In these circumstances I found that the deceased had contravened rule No. 3 of the Additional Special Rules adopted in the colliery under the provisions of the Coal Mines Regulation Act 1887, but was not guilty of serious and wilful misconduct; that the accident arose out of and in the course of deceased's employment, and I awarded respondent £60 as compensation.”

The following questions of law were stated—“(1) Do the circumstances above set forth amount to serious and wilful misconduct within the meaning of said Act? (2) Deceased having contravened said rule, does the assumption that said contravention was due to absent-mindedness on his part negative the respondent's plea of serious and wilful misconduct? (3) Said rule having been contravened by deceased, does this fact amount to serious and wilful misconduct in the absence of any proved excuse for said contravention? (4) Would absence of mind alone constitute a valid excuse for the breach of said rule?”

The Workmen's Compensation Act 1897 enacts, 2 ( c)—“If it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall be disallowed.”

The Coal Mines Regulation Act 1887 provides (section 51) for the establishment of special rules in every mine, and enacts, section 51 (3)—“If any person who is bound to observe the special rules established for any mine acts in contravention or fails to comply with any of them he shall be guilty of an offence against this Act.”

Section 52 provides for the approval of such special rules by a Secretary of State.

By Rule 3 of the Additional Special Rules adopted by the United Mining Association of Scotland, approved under the provisions of section 52, and adopted in the Skellyton Colliery, it is provided—“The bottomer at a mid-working in a vertical shaft not provided with an appliance which constantly fences the shaft, being a midworking in use for the regular passage of workers or the drawing of minerals from the mine, shall not open the gate fencing the shaft until the cage is stopped at such mid-working, and he shall not signal the cage away until he has closed the gate, and shall not permit any other person to open the gate while he is on duty.”

In argument the following cases were cited;—For the Appellants— Callaghan v. Maxwell, January 23, 1900, 2 F. 420, 37 S.L.R. 313; Daily v. Watson Limited, June 19, 1900, 2 F. 1044, 37 S.L.R. 782; O'Hara v. Cadzow Colliery Company, February (6, 1903, 5 F. 439, 40 S.L.R. 355; Condro-n v. Gavin Paul & Sons, November 4, 1903, 6 F. 29, 41 S.L.R. 33. For the Respondents— MacNicol v. Speirs, Gibb &. Company, February 24, 1899, 1 F. 604, 36 S.L.R. 428; Lynch v. Baird & Company, January 16, 1904, 41 S.L.R. 214.

This interlocutor was pronounced:—

“The Lords sustain the appeal: Answer the first question of law therein stated in the affirmative: Find it unnecessary to answer the other questions: Therefore recal the award of the arbitrator and remit to him to dismiss the claim and decern.”