Scottish Court of Session Decisions

John Fraser, appellant, being dissatisfied with an award of the Sheriff-Substitute at Kirkcaldy (Stuart) in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII. cap. 58) against the Lochgelly Iron and Coal Company, Ltd., respondents, appealed by Stated Case.

The Case stated—“The following facts were admitted or found proved, viz.—1. That the appellant was on said 4th December 1918 a hanger-on and pony driver in the employment of the respondents at said Dora Pit. 2. That his average weekly wages were £2, 14s. 2d. 3. That the section of the said pit in which appellant worked was the 14 feet seam in the Duddy level, situated to the west side of the pit bottom in said level; that the men working in said Duddy level are raised and lowered by a cage working in the shaft, and enter and leave said cage on the east side of said pit bottom, and that in order to reach his work the appellant had accordingly to pass from the east to the west side round the side of the shaft, and on leaving his work to return to the east side in order to reenter the cage. 4. That in said level on the west side of said pit there was no mechanical haulage; that on the east side of said pit there was a mechanical haulage operated by an engine on the surface, which also drove mechanical haulages on the other levels in said pit. Said mechanical haulage consisted of an endless wire rope passing down said pit or shaft, thence east by the main roadway to the entry to the heading after referred to in finding 6, thence up said heading and round the tension pulley situated in said heading, thence back to the main roadway, and thence eastward into said level, returning by said main roadway to said pit or shaft, up which it ran to said surface engine; and that on the east side of the shaft, where the appellant came off and re-entered the cage, the said mechanical haulage ran under a wooden platform to a point further from the pit bottom than the heading above referred to. 5. That appellant's duties consisted in hanging-on at Nos. 1 and 2 headings in said 14 feet seam and driving the hutches out from thence to a siding situated at a point at least 400 yards from and on the west side of said pit bottom. The points to which appellant was required to travel during his shift are shewn on plan No. 6 of process. 6. That on said 4th December 1918 the appellant, along with other workmen, was waiting at the end of his shift for the cage which would take him to the surface. 7. That the shaft by which the appellant would ascend the pit was the down-cast shaft, and in order to escape the cold draught which came down the shaft the appellant, with the others, although there was plenty of room to wait in the pit bottom, was waiting in an adjacent heading, situated 10 to 15 yards from and on the east side of the shaft. The appellant entered said heading a few minutes before three o'clock, at which hour his shift ended. 8. That said heading was not fenced off in any way, nor was there any notice prohibiting workmen from waiting

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there. Certain workmen had duties to perform in said heading, but appellant had not. It was a regular practice for years before said 4th December 1918 for workmen waiting to ascend the shaft to gather in said heading. This was known to the oversman of the section, and he never raised any objection to their doing so, but the practice was unknown to the manager and agent. There was a seat in the heading at the entrance thereto, where it was the custom for the fireman to sit and pass the workmen into their places, under Section 63 of the Coal Mines Act 1911; and it was also the custom for workmen to sit in the heading at breakfast time. 9. That in said heading was a tension pulley fixed horizontally upon a wheeled bogie, mounted on rails, and attached to a back balance bogie, round which pulley ran the endless haulage rope, as narrated in finding 4. The object of this contrivance was to take up any slack in the haulage rope and keep it taut. There was a flat wooden cover on the top of the pulley. 10. That when appellant entered the heading the haulage rope was stopped, and appellant believed that it would not start again. 11. That the haulage-rope usually stops for the day punctually at three o'clock, but sometimes stops at times varying between 2·5 and 3 o'clock. It also may stop for intervals throughout the shift, and does stop from time to time, as it is necessary to stop the engine on the surface when starting or stopping any of the other haulages, and this was known to the appellant. On the occasion of the accident to the appellant the stoppage was in order to disconnect the haulage in the low bottom, but this was not known to the appellant. 12. That appellant seated himself upon the wooden cover of the pulley, with his left leg close to the point where the rope entered the pulley. 13. That while he was so seated the rope started again and the appellant's leg was dragged into the pulley, and he was seriously and permanently injured. 14. That appellant's duties did not require him at any time to enter said heading, or to come in contact with the mechanical haulage of the pit. There was room to accommodate a reasonable number of men in said heading without coming into dangerous proximity to said rope, pulley, or bogie, but those who entered the heading were exposed to risk of injury from the mechanical haulage if they did not keep clear of the rope. 15. That the Coal Mines Act 1911 and the General Regulations, dated 10th July 1913, made by the Secretary of State, under section 86 thereof, apply to said pit. No. 4 of said General Regulations provides—‘Subject to any directions that may be given by any official of the mine no workman shall, except so far as may be necessary for the purpose of getting to and from his work, or in case of emergency or other justifiable cause necessarily connected with his employment, go into any part of the mine other than that part in which he works, or travel to or from his work by any road other than the proper travelling road.’ No. 28 of said General Regulations provides—‘No person employed in or about the mine shall negligently or wilfully do anything likely to endanger life or limb in the mine or negligently or wilfully omit to do anything necessary for the safety of the mine or of the persons employed therein.’ 16. That appellant in entering said heading was in breach of No. 4 of said General Regulations, and that in sitting on said wooden cover of the pulley he was in breach of No. 28 of said General Regulations, in respect that he was negligently endangering his own life or limbs. 17. That at the date of the proof appellant was totally incapacitated for work.

On 29th November 1919 I found that said accident, while it arose in course of appellant's employment, did not arise out of it in respect (1) that the appellant, by his actings as above described, had exposed himself to a risk which he was not required to incur, and which was outwith the sphere of his employment; (2) that he was in breach of rules 4 and 28 of the General Regulations above quoted. I held therefore that the respondents were not liable in compensation to the appellant in respect of his injuries, and dismissed the application.”

The question of law was—“Was there evidence on which I could competently find that the injury by accident to the appellant did not arise out of his employment.”

The arbitrator's note was—“The accident to the pursuer occurred while he was waiting, a few minutes before ‘lowsing time,’ for the cage to take him to the surface. The shift ended at three o'clock, and it was not said, I think, that he was not entitled to be in waiting for the cage a few minutes before the hour if he had finished his work. It appears that he had done so, and I take it therefore that he was still in the course of his employment when the accident happened. The question is, whether the accident arose out of his employment. It is proved that the division of the pit bottom in which he worked was what is called the west side, and in that area there is no mechanical haulage of any kind. The haulage system, including the pulley and rope in the heading, is situated in the east side of the bottom. The shaft by which the men are raised and lowered is in the east side, and in order to reach his work the pursuer had to pass from the east to the west side, and on leaving his work to return to the east side, and there wait for the cage. It is proved that it was the custom of the men to wait in the heading in order to be out of the draught from the down-cast shaft. This practice was known to the oversman, but not to any other official in authority in the pit. Those who waited in the heading, including the pursuer, had no duty, nor indeed any right to do so. They went there solely for their own convenience and comfort. On the day in question the pursuer entered the heading, and, the haulage-rope being at rest, he sat down upon the wooden cover of the pulley, with his left leg close to the rope at the side where it entered the pulley. He believed that the haulage had stopped for that shift, and would not start again. Unfortunately

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it did start, and his leg was dragged in by the rope and seriously injured. It seems to me to be clear—apart from the question of breach of rules—that it cannot be said that the accident arose out of the pursuer's employment. He had, as I have said, no duty which took him into the heading, nor had he any right to enter it. It was, territorially, outside the sphere of his employment. (L.P. Dunedin in Conway v. Pumpherston Oil Company, 1911 S.C. 660.) His duties, moreover, did not require him at any time to come in contact with the mechanical haulage of the pit. Still less did his duty require him to incur the risk of sitting in dangerous proximity to part of the haulage system. In short he exposed himself quite needlessly to a danger which should have been obvious to any pit worker, and which had nothing to do with the work he was required to perform. My conclusion therefore is that the pursuer's accident did not arise out of his employment. I was favoured at the debate with a copious citation of authority. I refer only to a few of the cases which seem to be closely in point— O'Brien, 1908 S.C. 1258; Miller, 1909 S.C. 698; Thomson, 1911 S.C. 823; and Brice, 1909, 2 K.B. 804. The last-named seems to be in its essential features not distinguishable from the present. If my opinion is well founded the pursuer's case fails. But the defence is further fortified by the argument arising out of the pursuer's breach of the General Regulations. Rule 4 provides that ‘no workman shall, except so far as may be necessary for the purpose of getting to and from his work, or in case of emergency or other justifiable cause necessarily connected with his employment, go into any part of the mine other than that part in which he works.’ I think the pursuer in entering the heading was in breach of this rule. I am unable to hold that his reason for doing so, viz., to avoid the draught, was a justifiable cause necessarily connected with his employment. But be that as it may, it seems clear that the pursuer contravened rule 28, which forbids the doing of anything likely to endanger life or limb, whether negligently or wilfully. The pursuer's act was certainly negligent, and not less certainly dangerous. It is none the less a breach of the rule that the danger involved only his own safety, and not the safety of others. But a breach of the General Regulations which have the force of statute has this result, that the act committed in breach is excluded from the sphere of employment of the party in fault— Maydew, 1917, 2 K.B. 742, p. Bankes, L.J. Upon this ground also I think the defence falls to be sustained.”

Argued for the appellant—The appellant was within the sphere of his employment in being where he was when the accident took place. He was following a long-established practice whereby workmen were allowed to expose themselves to the dangers that were to be found in the place in question. He had added no risk. The breach of statutory rules might be serious and wilful misconduct, but where, as here, the statutory rule did not limit the sphere of the employment mere breach of it did not deprive the workman of compensation. Statutory rules were like rules emanating from the master, divisible into those which limited the sphere of the employment and those which did not. The following cases were referred to— Simpson v. Sinclair, 1917 S.C. (H.L.) 35, 54 S.L.R. 267; M'Graw v. William Baird & Company, 1920, 57 S.L.R. 114 and (H.L.) 491; Foulkes v. Roberts, 1919, 12 B.W.C.C. 370; Brice v. Edward Lloyd, Limited, [1909] 2 KB 804; Moore v. Donnelly, 1920, 57 S.L.R. 380; M'Kenna v. Niddrie and Benhar Coal Company, 1916 S.C. 1, 53 S.L.R. 1; Gibbins v. British Dyes, Limited, 1918, 11 B.W.C.C. 180; Conway v. Pumpherston Oil Company, 1911 S.C. 660, 48 S.L.R. 632; Harding v. Brynddu Colliery Company [1911] 2 KB 747; Robertson v. Woodilee Coal and Coke Company, Limited, 1919 S.C. 539, 56 S.L.R. 498, 57 S.L.R. 343; O'Brien v. Star Line, Limited, 1908 S.C. 1258, 45 S.L.R. 935; Maydew v. Chatterley-Whitfield Collieries, [1917] 2 K.B. 742.

Argued for the respondents—The appellant was territorially outwith the scope of his employment; he was not doing anything for his master's purposes, and he added a risk. Further, he was acting in breach of a statutory rule, which necessarily took him outwith the scope of his employment, or, if not, the statutory rule limited the sphere of his employment and in breaking it he travelled outwith the sphere of his employment. The following authorities were referred to— Plumb v. Cobden Flour Mills, [1914] AC 62, 57 S.L.R. 861; Barnes v. Nunnery Colliery Company, [1912] AC 44, 49 S.L.R. 688; Highley v. Lancashire and Yorkshire Railway Company, [1917] A.C. 351, 55 S.L.R. 509; Bourton v. Beauchamp & Beauchamp, [1920] W.N. (H.L.) 214, 1920, 13 B.W.C.C. 90.

At advising—