Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 1 (1), enacts—“If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall … be liable to pay compensation. …”

Simon Kane, Motherwell, having claimed compensation under the Workmen's Compensation Act 1906 from his employers Merry & Cuninghame, Limited, coal-masters, Glasgow, the matter was referred to the arbitration of the Sheriff-Substitute at Hamilton (A. S. D. Thomson), who assoilzied the defenders, and at the request of the appellant stated a case for appeal.

The following facts were admitted or proved—“(1) That the pursuer on 30th October 1909 was employed in the respondents' pit as a brusher, and on said date, having finished his work for the day about 10·30 p.m., came with the other workmen to a lie on his way to the pit bottom. (2) That the pony-driver at this time was proceeding to draw three hutches of dirt from the lie to the pit bottom, and the appellant seeing the rake of hutches going off jumped on the rearmost hutch for the purpose of getting a ride to the pit bottom. (3) That in getting on to the hutch his lamp in some way went out, and the pony-driver failed to notice that he was riding on the hutch. (4) That on the way to the pit bottom the appellant was knocked off the hutch by his head coming in contact with two crowns which were considerably below the ordinary pit level, and that he in consequence sustained a fracture of the spine which involves a serious and permanent injury. (5) That it is one of the special rules in said pit (and notices thereof are duly posted up in the pit) that miners are forbidden to ride on hutches, and that this rule is well known to the miners and was well known to the appellant. (6) That in these circumstances the accident did not arise out of and in the course of the appellant's employment, and that he is not entitled to compensation. I therefore assoilzied the defenders and found them entitled to expenses.”

The questions of law were—“(1) In the circumstances was the arbiter right in holding that the appellant was guilty of a breach of the special rules of said pit? (2) Assuming that the appellant was guilty of such breach, was the arbiter right in deciding that in the circumstances above stated the appellant was not injured by accident arising out of and in the course of his employment?”

Argued for appellant—The first question was clearly one of fact, and the arbiter's finding in regard to it was not challenged, but he had erred in his finding on the second question. Breach of a special rule, even in the circumstances here found proved, did not take a man out of his employment. “Employment” was not limited to the period of effective work. Even if he adopted a wrong and dangerous method of doing his work he was not thereby taken outside his employment— Durham v. Brown Brothers & Company, Limited, December 13, 1898, 1 F. 279, 36 S.L.R. 190. Breach of a rule might be serious and wilful misconduct— Dobson v. United Collieries, Limited, December 16, 1905, 8 F. 241, 43 S.L.R. 260—but that was not the question at issue here. The present case came very near the case of Glasgow Coal Company, Limited v. Sneddon, February

Page: 431↓

14, 1905, 7 F. 485, 42 S.L.R. 365, where breach of a rule had been held not to bar the widow of a miner from claiming compensation. Reference was also made to M'Lauchlan v. Anderson, February 1, 1911, supra, p. 349.

Counsel for the respondents were not called on.