Scottish Court of Session Decisions

Mrs Elizabeth Buchanan or Kerr, Leggat House, Catrine, widow of the deceased Andrew Kerr, miner, Catrine, as an individual and as tutor and curator for her child Alexander Kerr, claimed compensation under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) from William Baird & Company, Limited, coalmasters, Hurlford, in respect of the death of the said Andrew Kerr. The Sheriff-Substitute ( Mackenzie), acting as arbitrator, having awarded compensation, a case for appeal was stated.

The facts were as follows:—“(1) That the deceased Andrew Kerr was a miner in the employment of the defenders in their Number One Gilminscroft Colliery; (2) that on 20th August 1910 the said Andrew Kerr was killed by the explosion of a shot in said pit in the circumstances hereinafter detailed; (3) that the said pit was unsafe, and was accordingly wrought in terms of the Explosives in Coal Mines Order of the 21st February 1910, by which, inter alia, it is ordered with regard to the explosives and the method of firing shots, section 1 ( a), that only permitted explosives shall be used, and section 2 ( a) that every charge shall be fired by a competent person appointed in writing for this duty, and section 4 ( a) and ( b) that detonators shall be under the control of some person specially appointed in writing, and shall be issued only to shot-firers or other persons specially authorised in writing, and that all detonators shall be kept in a securely locked box; (4) that the explosive used in this pit was that known as Samsonite, and that the firing was effected by means of an igniter fuse and detonator; (5) that a witness, John Rennie, pit fireman, Catrine, was appointed in writing by the defenders as the person authorised to fire shots and to have the custody of detonators; (6) that the course of proceedings in this pit was that when a miner had a shot ready for firing, the said John Rennie gave him a detonator which was affixed to the fuse, that the hole was then charged with the detonator end of the fuse among the explosive, that a portion of the fuse with the igniter end extended out of the hole, which was stemmed, these things being normally all done by the miner, and that Rennie then fired the shot by using a pair of pliers, which had the effect of breaking a small glass globe inside the igniter and so liberating a chemical substance in the tube which kindled the fuse, and travelling at a rate of from 18 inches to 2 1 2 feet per minute, caused the explosion; (7) that while miners were supplied with the explosive and with fuses, they were not allowed to have detonators, which were issued to Rennie and kept by him in a locked box, and that miners were not allowed to fire the shots, that shots could not be fired by means of explosive and fuse except with the aid of a detonator; (8) that on the said 20th August, between two and three o'clock p.m., after the shot-firer Rennie had left the mine, the deceased proceeded to bore a hole in the face for the purpose of blasting, which was part of his employment with the defenders, in making a passage in the mine through stone and metal; (9) that having bored the hole, the deceased called his fellowworkman

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Gibson to him and had at the time the shot ready for firing; that he told Gibson he was going to fire the shot, and that the two of them put up a tree, as is usual, for the protection of the roof; (10) that while the men were so engaged about 6 or 8 inches of the exposed part of the fuse and igniter were lying on the pavement; (11) that the deceased then struck the igniter with a hammer in order to fire the shot, but that instead of the usual interval of time elapsing during which it is customary for the men to seek a place of safety, viz., three to four minutes, the explosion occurred at the moment when the deceased struck the igniter; (12) that the explosion caused such injuries to the deceased that he died therefrom; (13) that there was no evidence to show where the deceased had obtained the detonator which must have been used to fire the shot, but that he did not get it from Rennie; (14) that the cause of the explosion was an accidental pressure, unknown to Kerr and Gibson, on the igniter while it was lying exposed, and not the blow with the hammer; (15) that at the time of the explosion Kerr was in his ordinary working place and in his ordinary working time; (16) that the accident arose out of and in the course of the deceased's employment with the defenders; (17) that the pursuer and her child Alexander Kerr were totally dependent on the earnings of the deceased.”

The Sheriff-Substitute further stated—“On these facts as proved I found in law that the defenders were liable to the pursuer in compensation for the death of the deceased, and assessed the same at the sum of £297, 6s. 9d. I therefore decerned against the defenders for payment to the pursuer for herself, and as tutor and curator for her child, of the said sum of £297, 6s. 9d. as craved, and found the defenders liable to the pursuer in expenses.”

The question of law was—“Was the said Andrew Kerr killed by accident arising out of and in the course of his employment with the respondents?”

Argued for appellants—The deceased at the time of the accident was acting outwith the “sphere” of his employment. There were different grades of employment in this pit, including amongst others those of shot-firer and miner. The former alone was entitled to the custody of detonators. Either by theft or otherwise the deceased obtained possession of a detonator and constituted himself a shot-firer. He was in the position of the footman on the box who arrogated to himself the duties of the driver, or of the railway guard who ventured to drive the engine. The case of Conway v. The Pumpherston Oil Company, March 9th, 1911, supra, p. 632, was distinguishable, for there the workman was not acting outwith the sphere of his employment.

Argued for respondent — The facts showed that the accident happened, not in firing the shot, but in preparation for firing it. The deceased was entitled to prepare the shot for firing. Further, he was entitled to procure a detonator from the shot-firer, and the fact that on this occasion he procured it elsewhere was a mere act of disobedience which did not deprive the respondent of her right to compensation. The case was governed by that of Conway ( cit.).