Scottish Court of Session Decisions

In an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) between Mrs Catherine Docherty or Lyons, widow of the deceased Denis Lyons, appellant, and the Woodilee Coal and Coke Company, Limited, respondents, the Sheriff-Substitute ( Macdiarmid), at Dumbarton, decided against the appellant, and stated a Case for appeal at her request.

The Case stated—“I found the following facts were either admitted or proved—(1) That the said deceased Denis Lyons was employed as a brusher by the respondents in their Woodilee Pit; (2) That his average weekly earnings exceeded £2; (3) That he was a healthy man, and on the evening of Thursday 11th November 1915 in his usual good health; (4) That on said night and the early morning of 12th November he was on the night-shift in said pit; (5) That about 4·30 a.m. he finished his work, and proceeded to the bottom of the said shaft to be taken to the surface; (6) That there was no stated time for on the night-shift to leave off work, and that, except during the inspection after mentioned, the practice

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was for them to be taken to the surface when they arrived at the shaft bottom; (7) That the daily statutory inspection of the shaft began about 5 a.m. every morning; (8) That the inspection was made in order to ascertain that the shaft was in working order, that repairs had frequently to be made, and that the time which the inspection would take on any particular morning could not be calculated, depending, as it did, inter alia, on the extent of the repairs found to be necessary, but that generally speaking it took an hour—half-an-hour going down and half-an-hour going up; (9) That during the inspection miners had as a rule one chance of being taken to the surface, i.e., when the cage was about to begin its upward journey; (10) That these facts were known to the deceased workman; (11) That on said 12th November he arrived at the bottom of the shaft about 5 a.m.; (12) That owing to a breakdown of the bell wire the repairs on that morning took longer than usual, the cage taking about an hour to descend; (13) That during that time the deceased workman was at the bottom of the shaft in a cold current of air; (14) That owing to said exposure he contracted a chill, upon which tonsilitis, kidney trouble, and pneumonia supervened, with the result that on 26th November 1915 he died of the latter disease.”

The question of law for the opinion of the Court was—“On the facts stated could I competently find that the deceased workman was not injured by accident arising out of and in the course of his employment?”

The Sheriff-Substitute's note was in the following terms:—

Note.—“There is, I think, no doubt that the death of the workman in this case was the result of an injury due to an event arising out of and in the course of his employment. The main point argued was as to whether that event was or was not an accident. The pursuer's agent contended that the case was not distinguishable from Coyle or Brown, 1914 S.C. (H.L.) 44, and Drylie, 1913 S.O. 549, and the recent House of Lords decision in Welsh, 1916, 53 S.L.R. 311, was also relied on. It humbly appears to me that the case falls rather into the category of cases of which M'Luckie v. John Watson, Limited, 1913 S.C. 975, is an example. It was known to the deceased workman that the daily inspection of the shaft took place between 5 and 6 a.m., and, although it was quite unnecessary for him to do so, he left off work and came to the bottom of the shaft at 5 a.m. He had accordingly to wait until the inspection of the down shaft was finished. On that particular morning it admittedly took longer than usual, and he had to wait an hour instead of half-an-hour. But just exactly how long the inspection would take on any particular morning could not be calculated, and a man who came to the shaft about the time when the inspection was due or in progress must, it appears to me, be held to have taken the risk of having to wait for a longer or shorter time. How long or how short a time the inspection would take depended upon the repairs which proved necessary, and the very raison d'etre of the inspection was to repair the shaft where and when necessary.

It is said that the breakdown of the bell wire was the accident which led to the exposure and the consequent injury. That seems to me fallacious. If anything can be said to have been ‘an unlooked-for mishap or untoward event which was not expected or designed,’ the delay in the descent of the cage would appear to have been the accident, but that delay was, as it seems to me, neither unlooked-for nor untoward, for it was, I think, merely a normal event, sometimes of longer, at other times of shorter duration, in the working of the mine.

Then, again, it is said, on the analogy of Welsh's case, that the accident was, in any event, the miscalculated effect of the prolonged exposure to the draught of cold air. It does not appear to me that there is room for that argument in a case where the man exposes himself not at the command of his superior but of his own free will and choice.

I am therefore of opinion that the deceased workman was not injured by accident.”

Argued for the appellant—The workman was injured by accident. He had not elected to put himself in the position which exposed him to the cold air, and that distinguished the case from M'Luckie v. John Watson, Limited, 1913 S.C. 975, 50 S.L.R. 770, for there the workman on his own initiative immersed himself in cold water for his own purposes. When the surrounding circumstances of the man's illness were known, and disclosed such facts as the present, the proper inference was that the illness was due to accident— Coyle or Brown v. John Watson, Limited, 1914 S.C. (H.L.) 44, per Lord Dunedin at p. 45, Lord Atkinson at p. 48, Lord Shaw at p. 51, Lord Parmoor at p. 53, 51 S.L.R. 492. The breakdown of the bell wire was an interference with the normal conditions. If it was not the accident, then the abnormal delay resulting was— Glasgow Coal Company v. Welsh, 1915 S.C. 1020, 52 S.L.R. 798, 1916, 53 S.L.R. 311, [1916] 2 A.C. 1, for it was an unlooked for mishap. If neither of the foregoing was the accident, the unlooked for result of the exposure upon the workman's power of resistance, together with the abnormality in the working of the mine, was the accident— Ismay, Imrie, & Company v. Williamson, [1908] AC 437; Kelly v. Auchenlea Coal Company, Limited, 1911 S.C. 864, per Lord Kinnear at p. 869, 48 S.L.R. 768; Coyle or Brown v. John Watson, Limited ( cit. sup.).

Argued for the respondents—The appellant was not injured by accident. There was nothing abnormal here; the usual inspection of the shaft was taking place, and the cage for which the workman was waiting was performing its functions normally. In Doyle v. Alloa Coal Company, 1913 S.C. 549, 50 S.L.R. 350, and Brown's case ( cit. sup.), there were abnormal circumstances. In any event the question was one of fact for the arbiter.