Scottish Court of Session Decisions

This was an appeal by way of Stated Case from a decision of the Sheriff-Substitute ( Umpherston) at Dunfermline in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) between James Smith, miner, Kelty, respondent, and the Fife Coal Company, Limited, Leven, appellants.

The Case stated—“This is an arbitration is an application to award compensation under the Workmen's Compensation Act 1906.

The facts are as follows:—1. The respondent was a miner in Benarty Pit, which belongs to the appellants, and the Explosives in Coal Mines Order of 21st February 1910, made by the Secretary of State for the Home Department, under section 6 of the Coal Mines Act 1896, applied to the pit at the date of the accident after mentioned and was duly posted at the pithead. Said Order provides, inter alia, as follows—( a) … [ quoted supra in rubric] … ( b) Every charge of the explosive shall be placed in a properly drilled shot-hole and shall have sufficient stemming, and each such charge shall consist of a cartridge or cartridges of not more than one description of explosive.… ( d) No charge shall be fired except by means of an efficient electrical apparatus so enclosed as to afford reasonable security against the ignition of inflammable gas or by a permitted igniter-fuse as hereinafter defined, ( e) … [ quoted supra in rubric].…”

“In terms of section 2 ( a) of said Order the appellants had duly appointed a man called Robert Howard to act as one of the shot-firers in the section in which pursuer worked, and at the time of the said accident Howard was so acting. The pursuer was not authorised to act as shot-firer. The shots in this pit were fired by the shot-firers by means of an electrical apparatus.

2. The method of firing a shot is (1) to place the detonator in the hole prepared by the miner and to stem it, (2) to connect the detonator wire to the cable, (3) to connect the cable to the electric battery, and (4) to turn the handle on the battery. The placing of the detonator in the hole and stemming of the charge are always done by the miner, not by the shot-firer. The rest of the operation is, under the Explosives in Coal Mines Order above mentioned, the duty of the shot-firer. It was part of the respondent's duty to bore a hole for each shot and to charge the shot-hole

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and stem the shot, and under section 2 ( e) of said Order it is the duty of the shot-firer to couple up the cable (which conveys the electric current) to the charge, and to do this before coupling the said cable to the firing apparatus. It is also his duty to himself couple the cable to the firing apparatus, and before doing so to see that all persons in the vicinity have taken proper shelter.

3. Three or four days after the respondent commenced work in the section Howard showed the respondent how to connect the detonator wire (which is a short wire running down the middle of the shot and projecting a short distance beyond the shot-hole) to the cable and asked him to do this part of the work. From that time until the date of the accident the respondent was in the habit of making this connection after the charge was stemmed, and this practice was common but not universal among the miners in that section during Howard's shift, although no such practice was proved so far as the other shot-firers in the pit were concerned, and the practice was unknown to the management. The rest of the work was done by the shot-firer. The shot-firer was, in virtue of his appointment, the person in charge of the shot-firing operations, subject to the provisions of the foresaid Order and also of the Special Rules under the Coal Mines Regulation Act of 1887, which were in force in said pit at the time of the accident.

4. There was evidence to the effect that other miners had themselves fired shots in Howard's absence, but if they did, this also was unknown to the management, and respondent never fired a shot himself. The respondent was requested by Howard on one occasion to fire a shot himself, but he did not do so.

5. On 28th June 1912 the respondent had prepared a hole for blasting (which preparation was part of his duties), and sent for Howard, who brought the detonator and firing equipment. Howard did not go forward to the face, but remained at a point about 30 feet therefrom round a corner from and out of sight of the point where the shot was. He gave the detonator and the end of the cable to the respondent and proceeded to get ready the rest of the apparatus and repair some damage which had been done to the cable. He did not ask the respondent to connect the shot with the cable, but the purpose of his giving respondent the detonator and cable was that the respondent might so connect the shot, and the respondent assumed that Howard desired him to do this.

6. The respondent put the charge in the hole, stemmed it, then connected the wire of the shot to the cable, and was proceeding to go to a place of safety when the charge was fired by Howard, and the respondent was seriously and permanently injured, his left arm as a result having to be amputated below the elbow.

7. The connecting of the detonator wire with the cable took less than a minute, and the respondent had just turned to go when the charge was fired by the shot-firer. The latter, who was at the other end of the cable about 30 feet away, heard a shout, ‘Right—fire away,’ which he thought came from the respondent, but it was in fact from a neighbouring miner, and was addressed to that miner's drawer, who had informed him that a shot was to be fired in their vicinity. The rapidity with which the explosion followed the connecting of the cable to the detonator wire showed that the cable had been connected to the battery before it was connected to the charge.

8. The respondent stated that he was unaware of said Order of 21st February 1910, and that if he had thought it was a breach of rule to connect the shot with the cable he would not have done it. It was proved that a miner may have duties to perform in his working-place after he has stemmed a charge, such as collecting his graith or setting a prop, although this was not the reason for the respondent being at the place.

9. The whole work of firing a shot takes about five or six minutes. In this section nine or ten shots per day were fired on an average. On the day of the accident only three shots were fired.

10. The respondent was entitled to be at his working-place at the moment when Howard fired the shot, and the cause of the accident was Howard's connecting the cable to the battery before the cable was connected to the charge, and before seeing that all persons in the vicinity had taken proper shelter (which act was in breach of said Explosives in Coal Mines Order), and firing the shot without ascertaining that all persons in the vicinity had taken proper shelter. The act of Howard in allowing the respondent to connect the cable to the charge was also a breach of said Order, and the respondent was not acting in the course of his employment in doing so, but this was not the cause of the accident, although the shot would not have gone off unless the cable had been connected to the charge either by the respondent or Howard.

On the foregoing facts I found that the pursuer sustained personal injury by accident arising out of and in the course of his employment with the defenders and appellants, and that the respondent was entitled to compensation at the rate of 20s. per week.”

The question of law for the opinion of the Court was—“Whether there was evidence upon which it could be competently found that the respondent sustained an accident arising out of and in the course of his employment on 28th June 1912?”

Argued for the appellants—The accident to the respondent did not arise out of and in the course of his employment, because the respondent, without having the excuse of an emergency, (1) had disobeyed one of the statutory pit orders which limited the sphere of his employment, and (2) had arrogated to himself a duty which he was neither engaged nor entitled to perform—

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Kerr v. William Baird & Company, Limited, 1911 S.C. 701, per Lord President (Dunedin) at p. 704, 48 S.L.R. 646, at p. 647; Lowe v. Pearson, [1899] 1 QB 261; M'Allan v. Perthshire County Council (Western District), May 12, 1906, 8 F. 783, 43 S.L.R. 592. The respondent was not doing what it was reasonable for him to do in the course of his employment— Moore v. Manchester Liners, Limited, [1910] AC 498, per Lord Loreburn, L.C., at p. 500; Barnes v. Nunnery Colliery Company, Limited, [1912] AC 44, per Lord Atkinson at p. 49. There was no finding in fact by the arbiter that the respondent was unaware of the rule, but, in any event, since the rule had statutory effect the state of knowledge of the respondent was irrelevant— Dobson v. United Collieries, Limited, December 16, 1905, 8 F. 241, 43 S.L.R. 260. Even if the proximate cause of the accident was the action of the shot-firer, such a consideration was irrelevant, because the question was not as to whose the fault was, but simply did the accident arise out of and in the course of the respondent's employment?— Dunham v. Clare, [1902] 2 KB 292, per Collins, M.R., at p. 296. The question in the present case was not a pure question of fact. Moreover, in Kerr v. William Baird & Company, Limited, cit., findings in fact by the arbiter were overturned by the Court of Session. Conway v. Pumpherston Oil Company, Limited, 1911 S.C. 660, 48 S.L.R. 632, was different from the present case, because there the workman was engaged within the sphere of his employment ( per Lord Kinnear, 1911 S.C. at p. 667, 48 S.L.R. at p. 636), but in the present case the respondent had arrogated to himself another person's duties.

Argued for the respondent—The accident arose out of and in the course of the respondent's employment. The arbiter had so decided, and as the question in the present case was one of fact and not of law the Court could not disturb his finding— Barnes v. Nunnery Colliery Company, Limited, cit., per Earl Loreburn, L.C., at p. 46; Mackinnon v. Miller, 1909 S.C. 373, per Lord President (Dunedin) at p. 378, 46 S.L.R. 299, at p. 302; Kane v. Merry & Cuninghame, Limited, 1911 S.C. 533, 48 S.L.R. 430. In Kerr v. William Baird & Company, Limited, cit., the workman committed a direct breach of an order which caused the accident, but in the present case the respondent in assisting the shot-firer was not doing what was absolutely forbidden, for the order was addressed to and singled out the shot-firer, and the appellants could have been convicted of a breach of the statutory rules on account of his action—Coal Mines Regulation Act 1887 (50 and 51 Vict. cap. 58), sec. 50. The respondent's action was not the proximate cause of the accident. The proximate cause was the action of the shot-firer. The respondent was entitled to rely on the appellants' employees observing the statutory orders, and if they had done so the accident would not have happened, and even if the respondent was guilty of contributory negligence that would not void his claim— Radley v. London & North-Western Railway Company, 1876, 1 App. Cas. 754, per Lord Penzance at p. 759; Bett v. Dalmeny Oil Company, Limited, June 17, 1905, 7 F. 787, 42 S.L.R. 638; Black v. Fife Coal Company, Limited, 1909 S.C. 152, 46 S.L.R. 191, rev. 1912 SC (HL) 33, 49 S.L.R. 228, [1912] AC 149; Watkins v. Naval Colliery Company (1897), Limited, [1912] A C 693; Conway v. Pumpherston Oil Company, Limited, cit.; Harding v. Brynddu Colliery Company, Limited, [1911] 2 KB 747; Mawdesley v. West Leigh Colliery Company, Limited, October 18, 1911, 5 B WCC 80. In any event, even if the respondent had acted outwith the sphere of his employment he must be held to have reverted to his employment at the moment of the accident, because it was his duty to be on the spot at the time the shot was fired.