Scottish Court of Session Decisions

Lord M'Laren—The question in this case is whether the verdict for the pursuer should be set aside as contrary to evidence. The action is founded on the common law liability of employers of labour to make such provision for the safety of the men in their employment as is reasonable and necessary. The pursuer is a miner in the employment of the Dalmeny Oil Company. For some days before the accident, which resulted in injury to the pursuer, the defenders' workmen were engaged in removing part of a large pillar which had been left in working out the mine by stoop-and-room. This was done as part of the construction of a new underground passage which was being driven through the mine. It is not disputed that this was a necessary operation, but the removal of an old pillar is a work calling for special care and attention, because it cannot be done without weakening the support of the roof, and apart from that general consideration, the area of the exposed part of the roof is increased to the extent to which the pillar is taken away. About eight days before the accident in question a large quantity of shale fell from the roof at this place. The witness John

Bett says that the men were employed in clearing it, and that there were from 400 to 500 hutchfuls of stuff that came down and were taken away. He adds—“The fall that my son was injured by was at the same place, just above the plates. It broke right down. It was the same, but not so big a fall as the previous one; there was not such a mass of stuff.”

The pursuer was knocked down by the second fall and had his collar-bone fractured. He also sustained severe injuries on the head, from the effects of which he had not at the time of the trial fully recovered. According to the evidence of Sir Henry Littlejohn, he suffered from giddiness, and would most probably be weak for about a year.

It was not maintained that the damages awarded were excessive, if damages are due. But it was contended, on behalf of the defenders, that there was no personal fault on their part, and that they are not responsible for the fault, if any, of their manager or their oversman. On the evidence I have no doubt that there was faulty management—I mean that the fall would not have taken place if the roof of the mine had been properly supported while the operation of cutting away the pillars was in progress. Granting that the neglect to support the roof was in the beginning a mere error of judgment, the defenders were sufficiently warned by the extensive fall that took place eight days before the accident, that the roof could not be relied on, and their neglect to do anything to support the roof after this warning amounts, in my opinion, to inexcusable negligence. The weight of the engineering evidence is to this effect if such evidence were needed, but I think this is a case where the facts point plainly to negligence, because by the Coal Mines Regulation Act 1887, sec. 49, rule 21, the mine-owner is charged with the duty of making the roof safe, and it cannot be said that this duty has been discharged when after the roof had begun to give way nothing whatever was done to support it.

It follows, then, that the verdict ought not to be disturbed unless the defenders are in a position to say that this is a case falling within the rule as to common employment. Now, the principle of that rule is that it is an implied term of the contract of service that the workman takes the risk of such misfortunes as may result from the negligence of persons who are engaged in the organisation of labour of which he is a member, and that the master is only responsible for the performance of such duties as he can reasonably be supposed to undertake in person—such as the provision of a competent staff of men, adequate material, a proper system, and effective supervision. But in the case under consideration the duty of supporting the roof is a statutory duty, and stands on a different plane from those duties which a master undertakes as implied conditions of the contract of service. The duty is not merely to provide a competent underground manager and to supply him with material for supporting the roof of the mine where necessary. The statutory duty of the mine-owner is to give necessary support to the roof, and in my opinion it is not an answer to a case of neglect of that duty to say that the employer had delegated the performance of the duty to a competent manager.

I should have come to this conclusion independently of authority, but on a question of such importance we should wish, if possible, to be guided by authority, and it is satisfactory to know that this is the view of the employers' responsibility that was taken by the Court of Appeal in England in the case of Groves v. Lord Wimborne, [1898] 2 QB 402. The statutory duty then in question was that of providing fencing for dangerous machinery, and it was held that the defence of common employment was not applicable where injury was caused to a servant by the breach of that duty. Lord Justice A. L. Smith in his opinion first considers whether the statute can be founded on for any other purpose than that of rendering the employer liable to a penalty, and he comes to the conclusion that, as the statutory provision was passed, not in the interest of the public at large, but for the benefit of workers employed in particular industries, and as the penalty was not to be applied for their benefit, it could not be intended that the provision which imposes a fine as punishment should take away the prima facie right of the workman to be compensated for injury occasioned by that neglect. On this point the learned Judge quotes with approval the decision of this Court in Kelly v. Glebe Sugar Company, 20

R. 833. His Lordship then examines the authorities on the defence of common employment. He says—“In the present case, which is an action founded on the statute, there is no resort to negligence on the part of a fellow-servant or of anyone else. There being an unqualified statutory obligation imposed upon the defendant, what answer can it be to an action for breach of that duty to say that his servant was guilty of negligence, and therefore he was not liable? The defendant cannot shift his responsibility for the performance of his statutory duty on to the shoulders of another person.” The other Judges expressed themselves to the same effect.

With regard to the dictum of Lord Chelmsford in Wilson v. Merry & Cuninghame, 6 Macph. (H.L.) 92, I agree with Lord Justice Smith that the judgment of the House of Lords only decided that the law as to the effect of common employment where the fellow-servant was in a position of superintendence was the same in Scotland as in England, and that Lord Chelmsford's opinion on the question of statutory duty not being necessary to the judgment of the House of Lords is open to reconsideration.

On the whole matter I am of opinion that the rule which we granted should now be discharged.

Lord Adam and Lord Kinnear concurred.

The Lord President was absent.