Scottish Court of Session Decisions

Robert Addie & Sons (Collieries) Limited, coalmasters, Rosehall Colliery, Whifflet, Coatbridge, appellants, being dissatisfied with a decision of the Sheriff-Substitute at Airdrie ( Macdiarmid) in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) brought against them by John Costello, repairer, 66 Mid Row, Rosehall, Whifflet, Coatbridge, respondent, appealed by Stated Case.

The facts admitted or proved were as follows:—“1. That the pursuer and respondent, who is a miner, was on 6th December 1917 injured by accident in No. 3 Pit, Rosehall Colliery, Whifflet, belonging to the defenders and appellants, while employed by them there, and that the said accident happened as follows:—The pursuer and respondent and his mate Alexander Fisher had in the course of and as part of their employment to prepare and fire two shots in the pavement. The pursuer and respondent prepared one and his mate the other, each with a detonator and with a fuse attached thereto. The shots were from 2 1 2 to 3 feet apart. The men then proceeded to apply a light to their respective fuses. Fisher was successful in lighting his. Both the pursuer and respondent and Fisher were of opinion that the pursuer and respondent was unsuccessful in lighting his. As, however, Fisher's fuse was burning it was necessary for them to seek a place of safety. This they accordingly did. They heard Fisher's shot go off, and waited for between thirty and forty minutes to allow the ‘reek’ to clear and to eat their ‘pieces’ and have a smoke. Thereafter, between thirty and forty minutes after they had left the place where the shots were, the pursuer and respondent returned for the purpose of lighting his own shot. This shot, the fuse of which he believed he had not lit, went off as he was in the act of approaching it and injured his left leg and foot. 2. That paragraph 3 ( a) of the Explosives in Coal Mines Order of 1st September 1913 applied to the said pit, and provided that ‘If a shot misses fire the person firing the shot shall not approach or allow anyone to approach the shot-hole until an interval has elapsed of not less than ten minutes in the case of shots fired by electricity or by a squib, and not less than an hour in the case of shots fired by other means,’ and that the shot in question was a shot ‘fired by other means,’ viz., by the application of a naked light to the fuse. 3. That the pursuer and respondent suffered serious and permanent disablement and was still totally incapacitated for work. 4. That parties were agreed that at the date of said accident pursuer's and respondent's average weekly earnings were £3, 14s. 2d.”

The Case further stated—“In these circumstances I found that the said accident arose out of and in the course of the pursuer's and respondent's employment with the defenders and appellants, that the pursuer and respondent was in breach of said paragraph of said Order and guilty of serious and wilful misconduct, but that his disablement being serious and permanent he was not barred from recovering compensation from the defenders and appellants.

I accordingly found the defenders and appellants liable to the pursuer and respondent in compensation in respect of total incapacity at the rate of £1 per week (with war additions) from the date of said accident until further order of Court, and found the former liable to the latter in expenses.”

The question of law was—“On the foregoing facts was I entitled to find that the accident to the said John Costello arose out of and in the course of his employment with the appellants?”

In a note to his award the arbitrator stated—“The main point in this case is whether or not this accident arose out of and in the course of the employment. The facts are practically identical with those in Donnelly v. A. G. Moore & Company, 1920, 57 S.L.R. 380. Since that case was decided in the Court of Session Bourton's case has been decided by the House of Lords— Bourton v. Beauchamp & Beauchamp, 1920, 13 B.W.C.C. 90—but as I understand the matter Bourton's case differed from that of Donnelly in that in the former case the workman when he met with his accident was doing an act which he was expressly prohibited from doing, whereas in the latter he was doing a permitted act carelessly or recklessly. In any event it was admitted by the agent for the employers that this case could not be distinguished from Donnelly's but that it differed from Bourton's and that accordingly an award in this Court could not be resisted.

As the case will no doubt go further it is right that I should note the argument put forward by the agent for the workman on paragraph 3 ( a) of the Order of 1st September 1913 as applied to the facts of this case. It was argued in the first place that it was proved that the fuse was not lit and that therefore the shot could not be said to have missed fire; and secondly, that assuming the fuse was lit the shot could not have missed fire because in point of fact it exploded. It does not appear to me to be of much moment whether or not the fuse was lit but I am unable to find it proved that it was not. It seems to me clearly proved that both the pursuer and his mate thought that the former had failed to light his fuse but I do not think it is possible to go further than that. And while without doubt the shot exploded, I do not think that really helps the pursuer. I would refer to the remarks made by Lord Dunedin when Lord President in the case of Waddell v. Coltness Iron Company, 1912, 50 S.L.R. 29. The phraseology of the rule then in force differs slightly from that of the rule now under consideration, but it seems to me that those remarks are directly in point, and if that be so then the pursuer having attempted to fire this shot, was not entitled under the rule to return to the place until an hour had elapsed. He returned in between thirty to forty minutes and was therefore in breach of the rule and

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guilty of ‘serious and wilful misconduct’ in the sense of the Act. I see no reason to doubt the pursuer, who although a man of fifty-two enlisted in the army in August 1914 and had just returned when this accident happened in December 1917, when he says that he had no very clear recollection of the rule but thought that thirty minutes was the time within which he must not return to the place where the shot-hole was.”

On 4th January 1921 the Second Division, having considered the Stated Case on appeal and heard counsel for the parties, hoc statu remitted to the Sheriff-Substitute as arbitrator to state whether he found it proved as a fact in the case that Costello's fuse was lighted by Costello.

On 19th January 1921 the Sheriff-Substitute reported as follows:—“The evidence led in this case was, on behalf of the workman, that of himself and of his mate Alexander Fisher, who were the only persons present when the shots were about to be fired; of the fireman, to whom the accident was reported; and, on behalf of the employers, the manager of the colliery.

Costello and Fisher both deponed that the former was not successful in his attempt to light the fuse of his shot. The fireman, who came on the scene immediately after the accident, deponed that Costello and Fisher had both said to him then that Costello had not lighted his fuse. I had no difficulty in reaching the conclusion that Costello and Fisher honestly believed what they said, and that Costello returned to the place where his shot was in the belief that he had not been successful in lighting the fuse. The difficulty was on this evidence to account for the explosion of the shot. The shots were placed in the pavement 2 1 2 to 3 feet apart with their strums or fuses inclining towards one another. The suggestion was made by Costello and Fisher that the flame from the explosion of Fisher's shot might have lit the fuse of Costello's, and this suggestion was concurred in by the manager of the colliery, who said that it was possible when shots were so placed for the flame from the explosion of one to ignite the fuse of the other.

It humbly appeared to me at the time when I issued my award that it was immaterial whether or not Costello was successful in his attempt to light the fuse of his shot, but my view on the evidence of Costello and Fisher, two experienced shot firers, and of the manager of the colliery, who supports the theory that Costello's fuse might have been lit by the explosion of Fisher's shot, is that he was unsuccessful. On reconsideration therefore I find in fact that Costello attempted to light but did not succeed in lighting the fuse attached to his shot.”

On 28th January 1921 the case was again heard before the Second Division.

Argued for appellants—The shot had “missed fire” within the meaning of the statutory rule, because it had failed to explode within the normal time, and accordingly the pursuer had contravened the rule by returning to the shot before an interval of an hour had elapsed. The pursuer had thus placed himself outside the sphere of his employment— Smith v. Archibald Russell, Limited, 1921, supra, p. 284, per Lord President (Clyde) at 286; Waddell v. Coltness Iron Company, Limited, 1912, 50 S.L.R. 29. The former of these cases was indistinguishable from the present and should be followed.

Argued for respondent—The pursuer had not succeeded in lighting the fuse of his shot, and the explosion of his shot may have been caused by the fuse having been ignited by the explosion of Fisher's shot. The pursuer's shot could not be said to have “missed fire.” Accordingly the pursuer had not contravened the statutory rule. The accident therefore arose out of and in the course of the employment— Smith v. Archibald Russell, Limited, per Lord President (Clyde), cit.; A. G. Moore & Company v. Donnelly, 1920, 58 S.L.R. 85, per Viscount Finlay at 90; Lynch v. Baird & Company, Limited, 1904, 6 F. 271, 41 S.L.R. 214. Fife Coal Company, Limited v. Colville and Others, 1920, 58 S.L.R. 85, was distinguishable. In that case there was no finding in fact that the fuse had not been lit. When there was any doubt as to the meaning of a rule the rule ought to be construed favourably to the workman.