Scottish Court of Session Decisions

In an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) at the instance of John Leishman ( appellant), miner, 11 Watson Street, Blantyre, against William Dixon Limited ( respondents), coalmasters, Glasgow, the Sheriff-Substitute ( Thomson) at Hamilton assoilzied the defenders, and at the request of the claimant stated a case for appeal.

The facts as stated by the Sheriff-Substitute were as follows—“(1) That the appellant on 24th November 1908 met with an accident in the course of his employment with the respondents. (2) That on said date he was acting as emergency roadsman, and that a breakdown having occurred in a blind shaft from the ell to the splint coal, he went for a screw-key to screw up certain bolts. (3) That on account of said breakdown the whole pit was temporarily kept idle, and it was a matter of some urgency to have the breakdown repaired without undue delay. (4) That in order to get the key he went across the working shaft of the pit at the splint bottom, instead of going round by the passage after mentioned provided for the purpose. (5) That there is a circular passage called the ‘Boutgate’ or by-pass from one side of the shaft bottom to the other. (6) That the said ‘Boutgate’ is not reserved exclusively for the passage of men, but is often used to accommodate the general traffic of the pit, and as empty hutches on their arrival at the pit-bottom are marshalled in the said ‘Boutgate,’ and as they accumulate are hauled off into the workings by horses, which are backed into the ‘Boutgate’ to await the completion of a rake, and to be attached to said rake. (7) That the said ‘Boutgate’ was never in practice clear of said traffic of empty hutches, and that there were frequently horses in it. (8) That there were empty hutches standing in the said ‘Boutgate’ when the appellant went for the screw-key. (9) That when there are empty hutches in the said

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‘Boutgate’ a man can quite easily pass through it. (10) That the main shaft, in crossing which appellant was injured, is 8 feet wide, and that three or four steps will take a man to the other side, and that an interval of three minutes at least, and often in practice more time, elapses between a loaded cage leaving the bottom and the return of the same cage with empty hutches, if the cage goes to the top. (11) That he waited till he saw the cage ascend from the bottom and then attempted to cross the shaft bottom, but the cage having been lowered again by the engineman at the pithead, he was caught by it and crushed against the bottom of the shaft and severely bruised. (12) That once the cage has left the bottom it is entirely under the control of the engineman, who may stop and lower it as he sometimes requires to do when the cage is caught in the shaft. (13) That the arresting of an ascending loaded cage in the shaft and the returning of it to the bottom is not of frequent occurrence, but that it sometimes happens, and that there is no appropriate bell-signal for such a set of circumstances. (14) That the cage moves rapidly and silently and gives no warning of its approaching the bottom, nor can it be seen until it is actually down. (15) That the shaft bottom is notoriously dangerous, not only on account of the possibility of the cage at any moment descending without warning, but on account of coal or material falling down the shaft, and that no one in practice crosses it unless the cage be in its seat. (16) That the appellant admitted that ordinary workmen and miners never cross the shaft bottom, but deponed that the officials of the pit and the bottomers do so regularly. (17) That it was not proved, however, that the officials or the bottomer do so, but that on the contrary it was proved that they regard it as a very rash thing to do, and avoid doing so. (18) That there is no special rule in writing or posted up prohibiting workers from crossing the shaft bottom, but that it is well recognised that the risk of doing so is always very great. (19) That there was not sufficient reason for the pursuer failing to proceed through the by-pass and preferring to cross the shaft. (20) That the appellant's injuries, although serious, were not permanent. (21) That the accident was in the above circumstances due to serious and wilful misconduct on the part of the appellant, and that he was in consequence barred from obtaining compensation in respect thereof.”

The question of law was—“In the above circumstances was the pursuer entitled to an award of compensation?”

Argued for appellant— Esto that the appellant's conduct was rash it did not amount to more than an error of judgment committed in his employers' interest, and was not serious and wilful misconduct in the sense of the Act— Todd v. Caledonian Railway Company, June 29, 1899, 1 F. 1047, 36 S.L.R. 784; Praties v. Broxburn Oil Company, Limited, 1907 S.C. 581, 44 S.L.R. 408. The onus of proving that it was so lay upon the respondents— Johnson v. Marshall, Sons, & Company, Limited, [1906 AC 409—and they had failed to discharge it.

Argued for respondents — There was ample evidence here on which the arbiter could find as he did, and that being so the Court would not interfere with his decision — George v. Glasgow Coal Company, Ltd., 1908 S.C. 846, 45 S.L.R. 686, aff. 1909 S.C. (H.L.) 1, 46 S.L.R. 28; Bist v. London and South-Western Railway, [1907] AC 209; John v. Albion Coal Company, Limited, (1901) 18 T.L.R. 27. Reference was also made to Dobson v. United Collieries, Ltd., December 16, 1905, 8 F. 241, 43 S.L.R. 260. Esto that no rule was broken, breach of a rule was not essential— Condron v. Gavin Paul & Sons, Limited, November 5, 1903, 6 F. 29, 41 S.L.R. 33. The misconduct here was serious, for it involved danger to life. It was also wilful, for what was done was notoriously dangerous.

At advising—