Scottish Court of Session Decisions

The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), sec. 1, enacts, subsec. 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.”

Clydeside Colliery additional special rule No. 1, framed in pursuance of the Coal Mines Regulation Act 1887 (50 and 51 Vict. cap. 58), is quoted in the rubric.

This was a stated case on appeal from the Sheriff Court of Lanarkshire at Airdrie in an arbitration under the Workmen's Compensation Act 1897, brought by William Dobson, miner, Crosshill Cottage Rows, Baillieston, against the United Collieries Limited, mine-owners, Clydesdale Collieries, Broomhouse, who appealed.

The following were the facts as given in the stated case—“(1) That on 14th November 1904 the applicant was employed as a miner at the respondents' Clydeside Colliery.

“(2) That about 1 p.m. on the said date the applicant having drilled a shothole went to his powder-box for a cartridge.

(3) That before opening his powder-box he placed his lamp on the ground at a distance of 6 feet from the box, but after getting a cartridge from the canister in said box and closing the box, he replaced his lamp on his cap and proceeded to return to his working-place with his lamp on his cap and the cartridge in his hand, the cartridge not being contained in any case or canister.

(4) That in order to get back to his working-place he had to crawl through a road about 2 feet in height, and as he was doing so the cartridge exploded and injured his hand.

(5) That the cause of the explosion was the ignition of the powder by a spark from the applicant's lamp.

(6) That in carrying the powder as he did the applicant contravened additional special rule No. 1, established for the pit under the Coal Mines Regulation Act, which special rule enacts … [the additional special rule was here given, v. stop.] …

(7) That the special rules originally established for the colliery are kept at the pithead in a wooden box with folding doors supported on a stand, but the additional special rules are not kept in that box but in a glass case which is hung in the shed at the pithead.

(8) That the applicant, although aware that there was a rule forbidding a miner to have a lamp on his cap when taking powder out of a canister or charging a shothole, did not know of the said additional special rule, or that there was any rule against a miner having his lamp on his cap while carrying in his hand a cartridge not enclosed in a case.

(9) That in carrying a cartridge as he did with his lamp on his cap the applicant acted in accordance with his usual practice, which he had followed for a number of years, and that the same practice was followed by some other miners in the pit.

(10) That although the said additional special rule has been established at the pit for about two years, it does not appear to be universally known among the miners.

(11) That as a result of the injury he sustained the applicant was off work for eight weeks, but resumed work at the end of that period.

(12) That his average weekly wage in the respondents’ service during the twelve months preceding the accident was £1, 4s. 2d.”

On these facts the Sheriff-Substitute ( Mackenzie) found in law—“(1) That the injury sustained by the applicant was received by accident arising out of and in the course of his employment, and (2) that the accident was not attributable to serious and wilful misconduct on his part in the sense of sec. 1, sub-sec. 2 (c), of the Workmen's Compensation Act 1897. I therefore awarded the applicant the sum of £7, 5s., for which I decerned against the respondents, and found him entitled to expenses.”

The question of law for the opinion of the Court was—“Was the accident to the applicant attributable to his own serious and wilful misconduct within the meaning of sec. 1, sub-sec. 2 (c), of the Workmen's Compensation Act 1897?”

On 19th May 1905 the First Division remitted to the Sheriff-Substitute to report—“(1) Whether the additional special rule No. 1, quoted in paragraph 6 of the case, was the only special rule dealing with the handling of explosives, or whether there were other rules dealing with that subject, either in the special rules originally established or in the additional special rules both alluded to in paragraph 7, and, if so, what were the terms of said rules; (2) whether the conditions of exhibition of ( a) the original special rules, and ( b) the additional special rules particularly described in paragraph 7, were sufficient to meet the requirements of sec. 57, sub-sec. (1), of the Coal Mines Regulation Act 1887; (3) whether, apart from the question of rules, the act of the applicant … was, looking to the nature of the cartridges as proved, an act of serious and wilful misconduct on his part.”

On 9th June 1905 the Sheriff-Substitute ( Mackenzie) reported —“(1) Additional special rule No. 1, quoted in paragraph 6 of the stated case, was the only special rule dealing with the handling of explosives established for the pit. In this connection, and in explanation of my findings in paragraph 8 of the case, I should add that the conclusion I came to on the evidence was that the applicant's knowledge that there was a rule against a miner having a lamp on his cap when taking powder out of a canister or charging a shothole, had been obtained from other miners or from officials in the pit, and that he had no knowledge of the special rule itself, or, except to the

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extent stated, of the regulations embodied in it. (2) The original special rules and the additional special rules were both exhibited in conspicuous places near the pithead, where they might conveniently be read by the persons employed in the mine, and in my opinion the conditions of exhibition were in each case sufficient to satisfy the requirements of sub-sec. 1 of sec. 57 of the Coal Mines Regulation Act 1887. (3) The cartridge carried by the applicant was a two ounce cartridge of compressed gunpowder. It was proved that such cartridges are covered with a paper wrapper. There was no further evidence as to its nature. In my opinion the act of the applicant, as described in the case, exposed him to considerable danger, but I was satisfied that he did not appreciate the danger or think that he was incurring any serious risk. In these circumstances, and apart from the question arising on the special rule, his act did not in my opinion amount to serious and wilful misconduct.”

Thereafter, on 13th July, the First Division remitted the case to Seven Judges, and it was heard on 24th November 1905.

Argued for appellants—A mine-owner was bound to have the special rules for the mine posted up in such a way as to be easily read by those employed in the mine (Coal Mines Regulation Act 1887, 50 and 51 Vict. c. 58, secs. 51, 52, 54, 57, and 58). That had been done at this mine, and the Sheriff's findings and the statements in his report showed that the respondent was aware of the existence of the regulations as to naked lights, though he may not have actually read them. That being so, his failure to observe them was “misconduct” in the sense of the Act— Dailly v. John Watson, Limited, June 19, 1900, 2 F. 1044, 37 S.L.R. 782; O'Hara v. Cadzow Coal Company, Limited, February 6, 1903, 5 F. 439, 40 S.L.R. 355; Condron v. Gavin Paul & Sons, Limited, November 5, 1903, 6 F. 29, 41 S.L.R. 33; United Collieries, Limited, v. M'Ghie, June 7,1904, 6 F. 808, 41 S.L.R. 705. In M'Nicol v. Speirs, Gibb, & Company, February 24, 1899, 1 F. 604, 36 S.L.R. 428, the rule did not appear to have been properly published, but that was not so here, for the appellants had taken the best available means of making it known. [ Lord President—There are dicta in M'Nicol's case which seem to indicate that even if the rules were properly published a workman who failed to observe them might only be guilty of negligence, as distinguished from serious and wilful misconduct.] If the rules were published the workman was bound to know them, and it was enough if he contravened them. The breaking of a statutory rule could not be anything else than wilful. De facto ignorance was no excuse for failure to obey a statutory rule. The breach of a statutory rule was different from the failure to obey the ordinary regulations of the employment. The workman must have known there was danger in doing what he did. That made his misconduct “wilful,” and as the rule violated was a statutory one that made it “serious.”

Argued for respondent—The purpose of the Workmen's Compensation Act was to give compensation for the ordinary risks of the employment. Mere negligencetherefore was not a bar to relief. Whether the negligence was excusable or not was a question of circumstances in each case. It was therefore a question of fact. The arbiter had found (1) that the respondent did not in point of fact know the rule, and (2) that he did not appreciate the risk. [ Lord M'Laren—“Serious” depends on the quality of the act, not on what the workman may think of it.] The respondent did not know the rule, and therefore could not be guilty of wilful misconduct. The mere fact that the rule was broken did not make his offence serious and wilful misconduct— M'Nicol v. Speirs, Gibb, & Company (cit. sup.). Whether misconduct was wilful or not was a personal matter, for it required a conscious act, as distinquished from the mere following of the customary practice— Todd v. Caledonian Railway Company, June 29, 1899, 1 F. 1047, 36 S.L.R. 784; Lewis v. Great Western Railway Company, 1877, L.R. 3 Q.B.D. 195, per L. J. Bram-well, at p. 206; in re Young & Harston's Contract, L.R., 31 ChD 168, at p. 175, Bowen L.J.; Smith v. Baker & Sons, [1891] AC 325. In all the earlier cases (except that of M'Nicol, cit. supra) actual knowledge was either proved or implied, and in all the cases (except that of Dailly, cit. supra) the risk was obvious.

At advising—