Scottish Court of Session Decisions

In an arbitration in the Sheriff Court at Kirkcaldy under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) between James Anderson and the Fife Coal Company, Limited, the Sheriff — Substitute ( Shennan) refused compensation and at the request of the claimant stated a case for appeal.

The following facts were found proved or admitted—“(1) On 18th January 1909

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James Anderson, the pursuer, was a miner in the defenders' employment at their Mary Pit, Lochore. In going to his work that morning he sustained an injury to his left hand in the manner hereinafter described, and was totally incapacitated down to 26th February 1909, after which he was partially incapacitated down to 30th March 1909.… (3) Anderson lives in Waverley Street, Lochore, in a house belonging to the defenders. In going to his work he first crossed a branch line of railway used by defenders in connection with building operations; then he passed through a field, of which defenders are occupants, and crossed the railway belonging to the defenders, which connects the Mary Pit with the North British Railway system; thereafter he traversed ground used by the defenders for the purpose of the pit till he came to the lamp cabin near the pithead, where it was his duty to obtain and examine his safety lamp preparatory to proceeding to the pithead for the purpose of descending the shaft to his work. He had to be down the pit by 6 o'clock a.m. There were other possible roads to the pithead used by the miners and other workers, but this was the usual and recognised road. (4) On the morning of 18th January 1909 it was very dark when the pursuer went to his work. After crossing the defenders' railway line near the place where the branch line previously referred to leaves it, he tripped over the lever handle used for shifting the points, and the point of his pick pierced his left hand, causing the injuries which incapacitated him. The spot where he met with the accident is about 400 yards from the stair leading to the pithead, and about 360 yards from the lamp cabin. The accident occurred about 5·40 a.m. (5) The place of the accident is part of the mine within the meaning of the Coal Mines Regulation Act 1887, and it is possible that pursuer might have been required to work at that place under No. 2 of the general regulations and conditions of employment in force at the pit, which, inter alia, provides that in the event of an unavoidable stoppage it shall be in the power of the company to require the workmen to continue in their service subject to their orders, and liable to be employed by them in any kind of work connected with the works they may see fit to employ them in. But on the date of the accident his duties were those of a miner underground. These duties did not begin until he reached the lamp cabin and obtained the safety lamp.”

On these facts the Sheriff-Substitute found in law that the accident to the appellant did not arise out of and in the course of his employment.

The question of law for the opinion of the Court was—“Did the said accident to the appellant arise out of and in the course of his employment within the meaning of the Workmen's Compensation Act 1906?”

Argued for the appellant—The accident did arise out of and in the course of the employment. It was not necessary that the appellant should be actually in the mine at the time of the aocident. If he was on the employer's premises for the performance of his duties, that was sufficient—Cross, Tetley, & Company v. Catterall, unreported, referred to in Sharp v. Johnson & Company, Limited, [1905] 2 KB 139; Gane v. Norton Hill Colliery Company, 1909, 25 T. L. R. 640; Percy v. Donaldson Brothers, 1909 S.C. 267, 46 S.L.R. 199, per Lord Justice-Clerk. Further, the place where the accident happened was part of the mine within the meaning of the Coal Mines Regulation Act 1887 (50 and 51 Vict. cap. 58), sec. 75. The appellant was on the way to his work at the time, and that brought him within the Act— Cremins v. Guest, Keen, & Nettlefolds, Limited, [1908] 1 KB 469; Nelson v. Belfast Corporation, 1908, 42 Ir. L. T. 223; M'Kie v. Great Northern Railway Company, 1908, 42 Ir. L.T. 132. The Sheriff had, no doubt, found in fact that the appellant's duties did not begin until he reached the lamp cabin, but the Sheriff had there misdirected himself, and had failed to distinguish between the special duties of a miner and the duties of the appellant under his contract with the appellants. Jackson v. General Steam Fishing Company, Limited, 46 S.L.R. 901, was also referred to.

Argued for the respondents—The accident did not arise out of and in the course of the appellant's employment. The fact that it happened in the respondents' premises was immaterial. In point of fact the appellant was never off the respondents' premises all the way from his house to the mine. Nor did it follow that a workman was entitled to compensation because the accident happened on the way to or from his work—per Cozens-Hardy, M.R., in Cremins v. Guest, Keen, & Nettlefolds, Limited, cit. The test was whether at the time of the accident there were mutual duties on the part of the master and servant— Caton v. Summerlee and Mossend Iron and Steel Company, July 11, 1902. 4 F. 989, 39 S.L.R. 762; Gibson v. Wilson, March 12, 1901, 3 F. 661, 38 S.L.R. 450; Holness v. Mackay & Davis, [1899] 2 Q B 319; Haley v. United Collieries, Limited, 1907 S.C. 214, 44 S.L.R. 193; Benson v. Lancashire and Yorkshire Railway Company, [1904] 1 KB 242. The cases cited by the appellant were consistent with that view. In Cremins v. Guest, Keen, & Nettlefolds, Limited, cit., for instance, the master had undertaken the duty of providing a train for the conveyance of the workmen. But for that there would have been no liability— Davies v. Rhymney Iron Company, Limited, 1900, 16 T.L.R. 329. In this case there were no mutual duties at the time of the accident. The Sheriff had found in fact that the appellant's duties had not begun, and that was conclusive.