Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sneddon v. Glasgow Coal Co., Ltd [1905] ScotLR 42_365_1 (14 February 1905)
URL: http://www.bailii.org/scot/cases/ScotCS/1905/42SLR0365_1.html
Cite as: [1905] ScotLR 42_365_1, [1905] SLR 42_365_1

[New search] [Printable PDF version] [Help]

SCOTTISH_SLR_Court_of_Session

Page: 365↓

Court of Session Inner House Second Division.

[Sheriff-Substitute at Hamilton.

Tuesday, February 14 1905.

42 SLR 365_1

Sneddon

v.

Glasgow Coal Company, Limited.

Subject_1Master and Servant
Subject_2Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37), sec. 1 (2)
Subject_3Injury Attributable to Serious and Wilful Misconduct
Subject_4Meaning of “Attributable.”
Facts:

A stated case in an appeal under the Workmen's Compensation Act 1897 set forth that four miners, in direct contravention of the regulations of the mine, were riding upon the top of loaded hutches in a tunnel of the mine; that in so doing they were guilty of serious and wilful misconduct; and that one of
Page: 366↓
them was killed by a stone which fell from the roof of the tunnel on the hutch upon which he was riding. There was no evidence that the fact of the men being upon the hutches caused the fall of the stone.

Held that the injury to the workman was not “attributable” to his misconduct within the meaning of sec. 1, subsec. 2 (c), of the Act, in respect that there was no causal relation between his misconduct and the injury which he suffered.

Headnote:

Section 1, sub-sec. 2 (c), of the Workmen's Compensation Act 1897 provides as follows: —“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.”

In an arbitration under the Workmen's Compensation Act 1897 between Mrs Margaret M'Lean M'Lay or Sneddon, widow of the deceased John Miller Sneddon, miner, as an individual and as tutrix-at-law of her pupil children, and the Glasgow Coal Company, Limited, the Sheriff-Substitute of Lanarkshire, at Hamilton (A. S. D. Thomson) awarded the claimant compensation for the death of her husband.

At the request of the Glasgow Coal Company, Limited, the Sheriff-Substitute stated a case for appeal, which set forth—“(1) That on 4th May 1904 the said deceased John Miller Sneddon was a miner in respondents' Kenmuirhill Colliery, and a workman in terms of the Workmen's Compensation Act 1897. (2) That on said date, at the close of their day's work, he and three other workmen, including the assistant oversman, got on top of a rake of loaded hutches drawn by a pony, for the purpose of being conveyed to the pit bottom on their way home. (3) That they had no permission from the manager to do so, and that in doing so they contravened Special Rule No. 72, which is in force in said pit, and is duly enforced in terms of the Coal Mines Regulation Act 1887. (4) That they were thereby guilty of serious and wilful misconduct. (5) That as the hutches were being drawn to the pit bottom a large stone about 15 feet in length and weighing several tons fell from the roof, with the result that he was instantaneously killed. (6) That the roof of the roadway is about 5 feet above the pavement, and the top of the coal in the hutches was about 3 feet 9 inches above the pavement, and that there was plenty of room (30 inches on one side and 24 inches on the other) between the hutches and the walls for men to walk. (7) That the deceased's wages were £1, 8s. 7d. a-week, entitling his dependants to compensation under said Act to the extent of £222, 19s. (8) That the applicant and her pupil children before mentioned were dependent upon the deceased within the meaning of said Act, and were entitled to said sum of £222, 19s. as compensation accordingly.

“In these circumstances I found that, although by lying on the hutches the deceased contravened Special Rule No. 72, and was thus guilty of serious and wilful misconduct, his death was not ‘attributable’ to such misconduct, and that the accident arose out of and in the course of deceased's employment, and I awarded the said Mrs Margaret M‘Lean M‘Lay or Sneddon as compensation £74, 6s. 4d., and as tutrix for her said children £148, 12s. 8d.”

The question of law for the opinion of the Court was—“Was the death of the said John Miller Sneddon, occurring as it did under the circumstances above set forth, ‘attributable’ within the meaning of the Act to his serious and wilful misconduct in contravening said special rule, so as to bar the claimants from recovering compensation under said Act in respect of his death?”

Argued for the appellants—There was here a question of law for the opinion of the Court, viz., what was included under the word “attributable”— Dailly v. John Watson, Limited, June 19, 1900, 2 F. 1044, 37 S.L.R. 782; Condron v. Gavin Paul & Sons, Limited, November 5, 1903, 6 F. 29, 41 S.L.R. 33. The fact that the workman could not have been killed had he not been on the hutch at the time when the stone fell was sufficient to prove that the accident was “attributable” to his misconduct in being there.

Argued for the respondent—The question stated by the Sheriff was one of fact and not of law and should not therefore be considered by the Court. In any event, however, the accident was not “attributable” to the deceased's misconduct, as the fact of his being on the hutch was in no way the cause of the stone falling from the roof. There was no causal relation between the misconduct and the accident.

Judgment:

Lord M'Laren—The case relates to an accident which occurred to a miner when he was on his way homewards in an underground passage of the mine. According to one of the rules, No. 72, which is in force in the pit, and which is found to be a lawful rule in terms of the Coal Mines Regulation Act 1887, miners are prohibited from riding on the hutches employed for carrying coal along the underground passages. In this case the miner, whose death resulted from the fall of a stone, was along with other miners riding on one of the hutches indisputably in contravention of the rule. While the “rake” of hutches was on its way a large stone fell from the roof and instantaneously killed the miner, whose family are now suing for compensation. The Sheriff has found as matter of fact that riding on the hutch was serious misconduct on the art of the workman—not simple misconduct but serious misconduct. I take it that means that he was exposing either himself or his master's property to danger, and that this was not a trivial contravention of a rule. Then he conies to the conclusion that although by lying on the hutches the deceased contravened Special Rule No. 72, and was thus guilty of serious and wilful misconduct, his death was not “attributable” to such misconduct, and that the accident arose out and in the course of deceased's employment.

Page: 367↓

I think the question whether the death of Sneddon was attributable within the meaning of the Act to his own misconduct is a proper question for the consideration of a court of appeal. It has been held in both Divisions of this Court, and also in the English judicatories; that every question of the construction of a statute is a proper subject of appeal to the higher court, and I think the question of law which the Sheriff here puts to us is neither more or less than this—What is included under the word “attributable?” I think that under that word there must be some causal relation between the misconduct of a workman and the injury which he suffers. It would not do to say that he was carrying a naked light on his person at the time when the stone came down, because although that would be a very serious act of misconduct in a mine where naked lights are not permitted, it has nothing to do with the accident or the consequent injury. It does not follow, however, that we are to interpret the word “attributable” as meaning that misconduct is the sole and only cause of the man's death or injury. It is enough that it is a material cause that in some way contributes to the unfortunate result. Therefore I think that the question to be considered under the word “attributable” is very much the same as we have to consider in cases at common law where there is fault on the part of the employer or his servant, and the question is, whether the word means that the injury was either caused solely by the workman's own fault, or was contributed to materially by his act or fault.

Now, in this case the Sheriff has come to the conclusion that the fall of the roof was not attributable to the miner's contravention of the rule by mounting the waggon, and it is, or at least includes, a question of fact, because I can well believe that there might be cases where if a considerable number of men, for example, got into a train of empty hutches, and in the opinion of experts the total weight upon the train of hutches and the consequent vibration was the cause of dislodging loose stones in the roof at the moment when the train was passing, if that were proved or inferred from sound scientific and technical evidence, then the conclusion would be irresistible that the injury was attributable to the contravention of the rule. But then in the present case the Sheriff has found that the fall of stone and the consequent death of the workman were not attributable to his having mounted the waggon, and apparently his view is that the man might have met his death just the same if he had been walking behind the waggon instead of lying on the top of it. In the absence of scientific evidence to establish that additional weight put on this waggon was the cause of the stone coming down I am unable to differ from the Sheriff. I do not know that on the matter of fact it would have signified whether I differed or not, for we are only a Court of Appeal as to matters of law, but so far as I understand the facts I think the Sheriff was perfectly justified in coming to the conclusion he did and if he was of opinion that there was no connection between the falling of the stone that caused the accident and the men mounting on the hutch, I think he rightly decided that this was an accident in the course of the workman's employment, and for which his wife and children are entitled to compensation.

Lord Kyllachy—I entirely concur. As I read the case, the Sheriff has not found himself on the evidence able to affirm that the misconduct of the deceased was either the sole or a materially contributing cause of the accident. Upon the statement in the case I find myself in the same position; and therefore I am unable to hold that in the sense of the statute the deceased's death was “attributable” to his own misconduct.

Lord Justice-Clerk—I am of the same opinion and having nothing to add.

The Court answered the question of law in the negative, and affirmed the award of the arbitrator.

Counsel:

Counsel for the Appellants— Wilson, K.C.— Horne. Agents— W. & J. Burness, W.S.

Counsel for the Respondent— G. Watt, K.C.— A. Moncrieff. Agents— Simpson & Marwick, W.S.
1905