Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 1 (2) (c), provides—“If it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and permanent disablement, be disallowed.”

Hugh Waddell, miner, Forth, claimed compensation under the Workmen's Compensation Act 1906 from the Coltness Iron Company, Limited, Climpy Colliery, Climpy, Forth, in respect of injuries sustained by him while employed in one of the defenders' pits.

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The matter was referred to the arbitration of the Sheriff-Substitute at Lanark ( Scott Moncrieff), who refused the claim for compensation, and at the request of the pursuer stated a Case.

The facts proved, as stated by the Sheriff-Substitute, were—“1.That upon the 26th day of January 1912 the appellant, a miner in the respondents' employment at Climpy Colliery, Forth, and who had been in said employment for a period of four years, was preparing for a blasting operation, and was dealing with two cartridges of gunpowder, to each of which he had attached a fuse or ‘strum.’ 2. That he lit one of the fuses and attempted to light the other, and then retired to a safe distance, but remained only until he heard one shot take effect, when he returned about three minutes after the explosion under the impression that the attempt he had made to light the fuse attached to the second cartridge had failed. That the reason for this impression was the appearance of the strum after applying the light, said strum not having ‘fizzed out.’ He admitted, however, that the light might catch on although the strum had not fizzed out, and therefore there was a risk in going back as he did. 3. That when the appellant got into his place he saw at once that smoke was proceeding from the second fuse and attempted to retire, but before he could do so the second shot exploded. 4. That appellant admitted being acquainted with No. 95 of the Special Rules of the Coal Mines Regulation Act, which provides that ‘if a shot has been lighted and does not explode, no person shall enter the place where it was lighted until thirty minutes shall have elapsed,’ but did not admit that he knew that by a notice printed in large type and hung in a glass case along with the rules made under the Coal Mines Act at the pithead for four years prior to the accident this rule had been made by the respondents applicable to all cases where the lighting of a shot had been attempted and the men had retired. The attention of the appellant had not been specially called to this notice. 5.That as a result of the second shot exploding the appellant sustained severe injury to his head and other parts of his body, and has practically lost the sight of his right eye, but that he has otherwise now recovered and is not seriously and permanently disabled.”

The Sheriff-Substitute further stated—“I found in law that the accident to the appellant was directly attributable to his serious and wilful misconduct, in having committed a breach of a rule duly intimated and with which it was his duty to be acquainted, and I accordingly refused his claim for compensation, and in the circumstances found no expenses due to or by either party.”

The question of law was—“In the circumstances stated was I right in holding that the appellant had been guilty of ‘serious and wilful misconduct?”

Argued for the appellant—In the view of the Sheriff it was not rule 95 itself that the appellant had contravened, but only the respondents' notice making rule 95 applicable to all cases where the lighting of a shot had been attempted and the men had retired. Breach of a mere local rule such as this would not amount to serious and wilful misconduct where, as here, the rule was not known to the workman. The judgment of the Sheriff was therefore wrong. The case should accordingly be remitted back to him, as it was not for the Court, but for the arbiter, to consider in the first instance whether there had been a breach of rule 95. In any event there had been no breach. A shot was not “lighted” within the meaning of rule 95 unless there had been successful ignition of the fuse. In view of the behaviour of one of the fuses the pursuer had reasonable grounds for believing that there had not been successful ignition thereof. His premature return was therefore due to a mere error of judgment, and did not constitute serious and wilful misconduct.

Counsel for the respondents was not called on.