Scottish Court of Session Decisions

The General Regulations under the Coal Mines Act 1911 (1 and 2 Geo. 5, cap. 50), sec. 86, Regulations 4 and 9, provide—“(4) 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

Page: 617↓

the mine other than that part in which he works, or travel to and from his work by any road other than the proper travelling road. (9) No person shall without authority pass beyond any fence or danger signal or open any locked door.”

Mrs Helen Fyfe or Gordon and another, the wife and sister of the deceased Alexander Gordon, appellants, being dissatisfied with an award of the Sheriff-Substitute at Dunfermline ( Umpherston) in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) brought by them against the Fife Coal Company, Limited, respondents, appealed by Stated Case.

The Case stated—“The following facts were admitted or proved, viz.—1. The claimants were both partially dependent on Alexander Gordon at the date of his death. 2. On 28th August 1919 Alexander Gordon was in the employment of the respondents in their No. 2 pit, Valley field Colliery. 3. On said date, and for two or three months prior thereto, Joseph Gordon and Alexander Gordon were working in a heading off Gordon's level. James Lessels and David Munro were working in Lessels' level. Both these levels were driven off No. 5 heading of the east five-feet Jig Brae section, Lessels' level being immediately above Gordon's level, and both being on the side of No. 5 heading, on which was the intake of the air course. 4. The gradient of No. 5 heading was about 1 in 3 or 1 in 4, rising in the direction from Gordon's level to Lessels' level. There was a double line of rails in No. 5 heading, and brattice cloth was led up the heading between the two lines of rails, in order to direct the ventilation up one side and down the other. Brattice cloth was also led from the centre of No. 5 heading along Gordon's level and along Lessels level for the purpose of diverting the air current on the intake side of No. 5 heading into these levels in order to ventilate them. 5. Above Lessels' level No. 5 heading was fenced off on both the intake and the return air course sides of the brattice cloth. The heading had been so fenced off for five weeks prior to said date. The fencing was done on each side of the brattice-cloth in the customary manner, viz., by two crossed rails, on which was written ‘No road.’ 6. Until five or six weeks before said date James Lessels and David Munro had been driving No. 5 heading, and up till that time the top of said heading was Lessels' working place. They came on a fault or hitch in the strata, and work at the top of the heading was thus brought to an end. They then began to drive Lessels' level, and the portion of the heading above that level was fenced off as described, in consequence of it having ceased to be a part of the pit which was being worked; but it required to be ventilated, and therefore remained in the ventilating system of the said Jig Brae section of the pit. 7. At about 10.30 a.m. on said date Joseph Gordon required some brattice-nails for the purposes of his work. Miners are in the habit of using nails of different kinds frequently at their work, but it is only on odd occasions that they require brattice nails. Joseph Gordon told his brother Alexander, who was his drawer, to go and get some. Alexander Gordon went out to the plates in No. 5 heading, opposite the end of Gordon's level, where he met Lessels, who was preparing to run a rake of hutches. Alexander Gordon asked Lessels if he had any brattice-nails, and Lessels replied that there were some in the manhole below his (Lessels') working-place. After Alexander Gordon's death two nails were found in that manhole, wrapped in a piece of brattice cloth. There were manholes on the intake side of No. 5 heading the whole way from the bottom to the top. 8. Alexander Gordon went up No. 5 heading and along Lessels' level on the intake side of the brattice cloth. David Munro was working at the face at the end of that level, and Alexander Gordon asked him if he had any brattice-nails. Munro said he had none. Alexander Gordon then went out from Lessels' level into No. 5 heading by the way he had entered, viz., by the intake air-course. At the plates in No. 5 heading, opposite the end of Lessels' level, there was a moveable flap in the brattice cloth which runs up No. 5 heading. The purpose of this flap was to enable Lessels to get to the line of rails on the return air-course side of the heading. When Alexander Gordon left Lessels' level he went through this flap into the return air-course side of the heading. 9. About ten minutes or a quarter of an hour after Alexander Gordon left his working-place Joseph Gordon, becoming anxious in consequence of his brother's failure to return, went in search of him. Alexander Gordon was ultimately found in an unconscious condition on the intake side of the brattice cloth in No. 5 heading, about 90 feet above Lessel's level and about 7 or 8 yards from the top of No. 5 heading. Some distance below the place where he was found the brattice cloth was torn at the bottom. Alexander Gordon died in the pit, efforts to revive him by means of artificial respiration having been ineffectual. 10. Alexander Gordon's death was due to gas poisoning. On the morning of said date, after the fireman's inspection at 8.30 a.m., there was an outburst of gas in the said fenced-off part of No. 5 heading on the intake side. Alexander Gordon was found about 30 feet inside the gas. 11. Brattice nails for the use of men in this section of the pit were kept in a box at the head of the Jig Brae. This was known to Alexander Gordon and he had previously got nails from this box. They could also be obtained by men in the section from a roadsman or a fireman, who always carried nails with them. Alexander Gordon had previously got nails from a roadsman. From the foot of No. 5 heading there was a level road to the top of the Jig Brae, and drawers were constantly going out and in on this road. There was no mechanical haulage in this level road and Alexander Gordon was entitled to walk by it to the head of the Jig Brae for nails. He could also have asked one of the drawers working on this level road to bring nails to him. It was one of the duties of these drawers to bring

Page: 618↓

in nails to men working in the section if asked to do so. The distance from Gordon's level to the head of the Jig Brae was about 1350 feet, to the foot of No. 5 heading about 350 feet, and to the top of No. 5 heading about 300 feet. 12. The portion of No. 5 heading above Lessel's level was not a part of the mine in which Alexander Gordon worked, or the proper travelling road by which Alexander Gordon travelled to or from his work. 13. The General Regulations dated 10th July 1913, made by the Secretary of State under section 86 of the Goal Mines Act 1911, apply to No. 2 Pit, Valley field Colliery, and were duly posted at the pit-head.…

“On 10th March 1920 I found in fact that the death of Alexander Gordon did not result from personal injury by accident arising out of and in the course of his employment with the respondents; and therefore found that the respondents were not liable to pay compensation in respect of his death.”

The question of law was—“Was there evidence on which I was entitled to find that the death of Alexander Gordon did not result from personal injury by accident arising out of and in the course of his employment.”

The Sheriff-Substitute's note was—“Joseph and Alexander Gordon worked in a heading off Gordon's level in Valley-field Pitt. James Lessels and David Munro worked in Lessels' level. Both these levels were driven off No. 5 heading of the east five feet Jig Brae section, Lessels' level being immediately above Gordon's level, and both being on the side of No. 5 heading, on which was the intake of the aircourse. No. 5 heading, above Lessels' level, was fenced off on both the intake and the return side of the brattice cloth, which ran up the middle of the heading between the two lines of hutch rails. It had been fenced off for five weeks before Alexander Gordon met his death. Lessels and Munro had been driving the heading, but they came on a hitch and work there was stopped. They then started to drive Lessels' level, and all No. 5 heading above that level was fenced off.

On 28th August 1919 Joseph Gordon required some brattice nails. He told his brother Alexander, who was his drawer, to go and get some. Alexander went out to the plates in No. 5 heading, opposite the end of Gordon's level, where he met Lessels, who was preparing to run a rake of hutches. Alexander Gordon asked Lessels if he had any nails, and Lessels replied that there were some in the manhole below his (Lessels') working-place. (After Alexander's death nails were found in that manhole). Alexander Gordon then went to David Munro, who worked along with Lessels in the end of Lessels' level, and asked him if he had any nails. Munro said he had none. Alexander left Lessels' working-place by the way he had entered, viz., by the intake air course; but when he reached the plates, opposite Lessels' level in No. 5 heading, he passed through a flap in the brattice cloth, which had been there to allow Lessels toget to the rails on the return air course side of No. 5 heading. Some time afterwards he was found lying insensible on the the intake side of the brattice cloth in No. 5 heading, some 90 feet above Lessels' level. In spite of heroic attempts at rescue on the part of his brother Joseph, and Munro, and Lessels, Alexander Gordon died, his death being due to gas poisoning.

So far as one can surmise, the cause of Alexander Gordon's presence at the place where he was overcome by gas was as follows—He had not heard, or had misunderstood, Lessels' reference to the manhole below his working-place. After leaving Munro he passed the fence on the return air course side of No. 5 heading, and ascended it for some distance. He then forced a way through the brattice cloth to the intake side of No. 5 heading, probably because he was sensible of gas and wanted to get into fresher air. He was found about 30 feet inside the gas on the intake side.

Brattice nails, for the use of men in this section of the pit, were kept in a box at the head of the Jig Brae. This was known to Alexander Gordon, and he had previously got nails from this box. They could also be got from a roadsman or a fireman, who always carried nails with them. Alexander Gordon had previously got nails from a roadsman. The distance from Gordon's level to this box, at the head of the Jig Brae, was much greater than the distance to Lessels' working-place, or even to the top of No. 5 heading. But if Alexander Gordon did not wish to go to the Jig Brae, he could have asked one of the drawers working on the level road, between the foot of No. 5 heading and the Jig Brae, to bring in some nails to him. It was one of the duties of these drawers to bring in nails to the men working in the section if asked to do so.

The question which I have to determine is whether the death of Alexander Gordon resulted from personal injury by accident arising out of and in the course of his employment with the respondents. At the outset one must notice that Alexander Gordon's death resulted from a breach of regulations 4 and 9 of the general regulations made under section 86 of the Coal Mines Act 1911. These regulations apply to this colliery, and they were duly posted at the pithead. The next observation one is bound to make is that his death occurred owing to him having gone to a place where he had neither a duty nor a right to be.

In regard to the first of these matters one can only say that the mere transgression of an order does not necessarily take a workman outwith the sphere of his employment. It has been definitely decided by the Courts of Appeal that that is not the necessary effect of doing a forbidden act, even when it is a criminal offence, as it is in the present case.

The cases are well nigh innumerable in which the ground of decision has been that a workman went to a place where he had no right to be and thus incurred the risk to which the accident was due. I may cite as

Page: 619↓

typical examples Brice v. Edward Lloyd Limited, [1909] 2 KB 804, and Revie v. Cumming, 1911 S.C. 1032, 48 S.L.R. 831.

But there are two cases in which a workman was injured through going to a place to which he was forbidden to go, and the accident was held to have arisen out of and in the course of the employment— Conway v. Pumpherston Oil Company Limited, 1911 S.C. 660, 48 S.L.R. 632; Harding v. Brynddu Colliery Company, Limited, [1911] 2 KB 747. Both were cases of a miner going to a part of the mine which was fenced off, and in both cases the workman who met his death did so through breaking one of the colliery regulations. In Harding's case the workman was boring a hole from a higher passage into the top of a heading underneath in order to release an accumulation of gas there. He had made two vain attempts to do this, and then, contrary to both a verbal order and the colliery regulations, he went into the heading to try and locate the direction of his bore. He was overcome by the gas and killed. In Conway's case the workman required a particular kind of pick for the work at which he was engaged. He knew that there was one belonging to his fellow-workman which had been left in the adjoining part of the pit that was fenced off. He went there contrary to the regulation to fetch it, was overcome by gas, and killed.

It seems to me that these two cases exemplify the limit which can be reached in this matter. In both cases the workman went to a place where he was not employed to work; he went there contrary to express orders, and contrary to regulations which have the force of statute. His action in going there was a criminal offence for which he was liable to a penalty. His breach of the regulation resulted in his death. And yet it was held that his death resulted from personal injury by accident arising out of and in the course of his employment.

The present case does not seem to me to be governed by the cases of Conway and Harding. I assume that Alexander Gordon went into this fenced-off heading to look for brattice nails. If I were to hold that that fact brought the case within the compass of these two decisions, I should equally require so to hold if he had gone past the head of the Jig Brae into another section of the pit or to the store on the surface to look for nails. It was not the mere fact that Conway was looking for a pick that kept him in the course of his employment. He was looking for one particular tool which he knew to be in the place to which he went, and that was the one tool which so far as he knew would serve the purpose for which it was required. Similarly in Harding's case there was only one place in the pit where he could locate the direction of his bore, and he went there for the purpose. In the present case, if no roadsman or fireman was at hand (as there was none), there was one place in the section of the pit where Alexander Gordon could obtain the nails he required, and he knew where that place was. I am not disposed to ascribe any motive to him in going to a different place. It is sufficient to say that in going into the fenced-off portion of No. 5 heading he went out of the course of his employment, and that any personal injury by accident which he sustained in that place did not arise out of the employment.

If it is necessary to place this case in any of the categories of decisions in which this phrase in the statute is being classified I should cite as apposite these three, viz.— Thomson v. Flemington Coal Company, Limited, 1911 S.C. 823, 48 S.L.R.740; Weighill v. South Hetton Coal Company, Limited, [1911] 2 KB 757;and Horner v. Wandsworth, Wimbledon, and Epsom Gas Company, 12 B.W.C.C. 21.”

Argued for the appellants—The case contained no finding that the deceased workman was in the place where he was found for the purpose of obtaining the nails required for his own and his brother's work. But there was no suggestion of any other reason why he was there, and the Sheriff-Substitute's note proceeded on the footing that that was his purpose in being at that place. It was not necessary to have an express finding as to that when such a finding was fairly to be inferred from the whole case— Sneddon v. Greenfield Coal and Brick Company, Limited, 1910 S.C. 362, 47 S.L.R. 337. Accordingly the case must be taken on the footing that the deceased when he was overcome by the gas was searching for nails, i.e., was engaged in his own proper work. That distinguished the case from such cases as Brice v. Edward Lloyd Limited, [1909] 2 KB 804, and Revie v. Cumming, [1911] S.C. 1032, 48 S.L.R. 831, where purposes of his own took the man to a place where he had no business to be. The present case was ruled by Conway v. Pumpherston Oil Company, Limited, 1911 S.C. 660, 48 S.L.R. 632, and Harding v. Brynddu Colliery Company, Limited, [1911] 2 KB 747. In both those cases the workman for the purposes of his work broke a statutory prohibition. The Sheriff-Substitute's distinction between the present and those cases was too fine and had no substance. Those cases had not been overruled by Bourton v. Beauchamp & Beauchamp, 1919, 12 B.W.C.C. 118, 1920 (H.L.) 13 B.W.C.C. 70. Bourton's case did not decide that the mere breach of any statutory rule necessarily took the employee outwith the scope of his employment. In George v. Glasgow Coal Company, Limited, 1909 S.C. (H.L.) 1, 46 S.L.R. 28, where breach of a statutory rule was involved, no such suggestion was made. In Robertson v. Woodilee Coal and Coke Company, 1920, 57 S.L.R. 343, that ground of decision was again open, but the House of Lords proceeded upon added peril. Fairly read, the opinions in Bourton's case did not support that proposition. If so, Bourton's case left Conway's case and Harding's case still authoritative. Further, Bourton's case was distinguished from the present, for in it the workman ( a) removed the stemming of a shot ( b) to place another in the same hole. His act and his object were both prohibited by statute. Here the employee's purpose was legitimate. His action to effect it was forbidden. Harding's case had been followed in Foulkes v. Roberts,

Page: 620↓

1919, 12 B.W.C.C. 370, per Atkin, L.J., at p. 378, and with Conway's case had been followed in Moore & Company v. Donnelly, 1920, 57 S.L.R. 380. Matthews v. Pomeroy, 1919, 12 B.W.C.C. 134; the Coal Mines Act 1911 (1 and 2 Geo. V, cap. 50), section 37 (1); and Elliot on the Workmen's Compensation Act (7th ed.), p. 55, were referred to.

Argued for the respondents—The Sheriff-Substitute was right. He was entitled to withhold the finding that the deceased met his accident when looking for nails, for there was nothing to show that the workman knew there were nails in the place where he was when overcome by the gas. That distinguished the case from Conway's case, for in it the workman knew that the tool he required was behind the barrier. There was also the further distinction that the nails could have been obtained elsewhere, where the workman was legitimately entitled to be. But if not, Conway's case was overruled by Bourton's case, the opinions in which supported the proposition that any breach of a statutory prohibition was fatal to a workman's claim, at least if they did not go that length they certainly did lay down that such was the effect of statutory prohibitions imposed directly on the workman as a person employed in a certain occupation. That type of statutory prohibition was distinguished from ( a) prohibitions emanating from the master, where there was always room for implied relaxation, and from ( b) statutory prohibitions reaching the employee only through the master. In those two cases the prohibition might or might not limit the sphere of the employment. The prohibition in Conway's case applied directly to the workman, but the Court had wrongly assigned it to the other class of prohibitions. The prohibition in the present case applied directly to the workman. Herbert v. Samuel Fox & Company, Limited, [1916] 1 A.C. 405, per Lord Wrenbury at p. 420, 53 S.L.R. 810; Plumb v. Cobden Flour Mills Company, Limited, [1914] AC 62, per Lord Dunedin at p. 67, 51 S.L.R. 861; Lancashire and Yorkshire Railway Company v. Highley, [1917] A.C. 352, 55 S.L.R. 509; Weighill v. South Hetton Coal Company, Limited, [1911] 2 KB 757, per Fletcher Moulton and Buckley, L.JJ., at p. 758; Whitehead v. Reader, [1901] 2 KB 48, per Collins, L.J., at p. 51; and the Workmen's Compensation (Illegal Employment) Act 1918 (8 and 9 Geo. V, cap. 8), section 1, were referred to.

At advising—