Scottish Court of Session Decisions

James Campbell, miner, Uddingston, pursuer, raised an action in the Sheriff Court at Airdrie against the United Collieries, Limited, coalmasters, Bredisholm Colliery, by Uddingston, defenders, in respect of the death of his son John Campbell, miner, sometime in the defenders' employment. The claim or demand of the pursuer was “(1) for damages at common law laid at £500, in respect of the decease of the said John Campbell, aged fifteen years, who was a drawer in the employment of the defenders, and earning 25s. per week or thereby, in consequence of injuries sustained by him on 22nd February 1911 through the fault of the defenders, while working in the employment of the defenders in the Lower Drumgray seam of No. 3 Pit, Bredisholm Colliery, Nackerty, Uddingston, said accident having been caused by the said John Campbell being caught in the haulage wheel now used in said Lower Drumgray seam in said colliery through said wheel not being properly fenced, owing to fault or negligence on the part of the defenders or of those for whom they are responsible; or alternatively (2) for payment of £195 as reparation under the Employers' Liability Act 1880 in respect that said lack of fencing constituted a defect in the ways, works, machinery and plant of the defenders.”

The pursuer averred, inter alia—“(Cond. 2) On said 22nd February the said John Campbell was employed by the defenders in their No. 3 Pit, Bredisholm Colliery. A stoppage of the haulage had been caused by a fall from the roof, and the said John Campbell, along with other drawers employed by the defenders, was waiting in the pit until the haulage should be restarted. About 9·15 p.m. the haulage was restarted, and the said John Campbell went forward towards the face to see if hutches were ready for him. (Cond. 3) In going to the face the said John Campbell required to pass a fixed wheel which formed part of the machinery in use in the colliery. Said wheel was a horizontal wheel of about 42 inches diameter. It was fixed on a pivot on the level of the pavement and acted as a pulley round which travelled an endless rope which worked the haulage in the pit. (Cond. 4) Shortly before reaching the said wheel the lamp carried by the said John Campbell was extinguished, and the said John Campbell, who continued to advance towards the face, inadvertently stepped upon the said wheel, which was revolving, and sustained very severe injuries from the results of which he died the following day in the Royal Infirmary, Glasgow. (Cond. 5) The death of the said John Campbell was due to the fault of the defenders in failing to take precautions for the safety of their employees and to provide safe and suitable plant. In particular, the defenders were in fault in not providing sufficient fencing round the said wheel, whereby persons employed in the pit might be prevented from being caught in the wheel while the same was in motion. The wheel was so placed that it revolved below the level of the rails which carried the hutches and was in such a position that only one half of it was covered by the boards on which the rails were laid. The remaining half of the wheel which extended towards the side of the roadway was not covered with boards or otherwise protected. Two boards were fitted to uprights so as to act as a fence parallel to the line of rails, but no cross fencing was fitted up so as to close the passage formed by the space between the uprights and the wall within which the exposed portion of the wheel revolved, with the result that there was nothing to prevent persons who were passing along the said roadway close to said wall from stepping upon said wheel while the same was in motion. The defenders have, since the said 22nd February 1911, completely covered over the said wheel with boards and the same is now in a condition of safety. Had the said wheel been so covered over or had any cross fencing been fitted up so as to close the passage between the uprights and the said wall within which the exposed half of the wheel revolved at 22nd February, or had other sufficient fencing been provided, the said accident would not have happened and the said John Campbell would not have lost his life.”

The pursuer pleaded—“(1) The death of the said John Campbell having been occasioned by fault on the part of the defenders, the pursuer as father of the said John Campbell is entitled to reparation as concluded for. (2) In the circumstances condescended upon the sums alternatively claimed as damages are reasonable, and

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decree should be pronounced as concluded for with expenses.”

On 31st October the Sheriff-Substitute ( Glegg) dismissed the action as irrelevant.

Note—“The only averment directed to instructing liability for fault on defenders' part is condescendence 5. The pursuer there in effect avers that defenders should have fenced a certain wheel, and that it was not fenced. This is a good averment of a defect in plant, but is insufficient in regard to fault, inasmuch as it does not disclose whose fault it is that pursuer seeks to hold this limited company responsible for. The pursuer avoids a good many difficulties by taking no notice of obvious facts, and he is of course not bound to raise difficulties if he can avoid them, but he cannot withhold explanations which known circumstances require. As regards his common law case it may be asked how did this company become liable for an act of negligence of its servants, and as regards the Employers' Liability case, who was the negligent servant? Information should have been given on both heads, but instead of doing so, and distinguishing between the two grounds of claim, he simply makes the bald averment mentioned. The case seems to fall within the rule laid down in M'Grath v. Glasgow Coal Company, 1909 S.C. 1250, and I accordingly dismiss it.”

The pursuer appealed, and argued—(1) The foundation of the pursuer's case at common law and under the Employers' Liability Act depended upon the same facts, namely. a defect in the ways, works, In M'Grath v. Glasgow Coal Company, Limited, 1909 S.C. 1250, 46 S.L.R. 890, the whole averments were so confused that the defenders were not given fair notice of what the pursuer's case was. The obligation to fence was set out in the Coal Mines Regulation Act 1887 (50 and 51 Vict. cap. 58), sec. 49, rule 31. (2) Cond. 4 was not an admission of contributory negligence.

Argued for the defenders and respondents—The case was relevant. A pursuer who sued alternatively was bound to discriminate between his claim at common law and that under the Employers' Liability Act— M'Grath ( cit. sup.) The pursuer had not done so either in his condescendence or even in his pleas. To make the case relevant at common law the pursuer would have required to aver that the defenders had not used reasonable care to appoint a competent manager, or had not supplied him with adequate materials and resources— Black v. Fife Coal Company, Limited, 1909 S.C. 152, 46 S.L.R. 191; Wilson v. Merry & Cuninghame, May 29, 1868, 6 Macph. (H.L.) 84, 5 S.L.R. 568—and, to make it relevant under the Act, that the person entrusted with the duty of inspection had been negligent—Employers' Liability Act 1880 (43 and 44 Vict. cap. 42), sec. 2, sub-sec. 1. (2) The pursuer's own averments in cond. 4 disclosed contributory negligence.