Scottish Court of Session Decisions

David Rodger, miner, Kelty, appellant, claimed compensation under the Workmen's Compensation Act 1906, from The Fife Coal Company, Limited, Leven, respondents, in respect of personal injury sustained by him while in their employment on 5th September 1921.

The matter was referred to the arbitration of the Sheriff-Substitute of Fife and Kinross at Dunfermline ( Umpherston), who refused to award compensation, and at the request of the claimant stated a Case for appeal.

The Case stated—“The following facts were admitted or proved:—1. On 5th September 1921 the claimant and appellant was employed as a miner by the defenders and respondents in the Aitken Pit, Kelty. The Coal Mines Act 1911 and the Explosives in Coal Mines Order of the 1st September 1913 apply to said pit, and were duly posted at the pithead. 2. The Explosives in Coal Mines Order of the 1st September 1913, provides, inter alia—‘2 ( h) ( quoted supra in rubric).’ 3. At the place where the claimant and appellant worked, shots were fired electrically, and a shot-firer named William Jenkinson was duly appointed for the purpose. 4. The claimant's and appellant's working-place was in a heading running off a dook. On said date he had prepared a shot-hole, and William Jenkinson the shot-firer was in attendance for the purpose of firing the shot. 5. The shot-firer handed to the claimant and appellant a detonator or fuse with its attached wires, and the claimant and appellant inserted the detonator into the shot-hole which he stemmed. This was his duty as a miner. 6. The shot-firer then threw one end of the cable to the claimant and appellant. The shot-firer did not say anything, but the claimant and appellant understood that the shot-firer wished him to couple the cable to the detonator, and he proceeded to do so. He had done this on one occasion previously. 7. The shot-firer went out of the heading into the dook, where he coupled the cable to the electrical firing apparatus. He did so without having previously coupled the cable to the detonator wire. While he was thus engaged, two persons passed him, going in a direction where they would be in safety. He called to them, asking if it was all right, and one of them said ‘yes.’ The shot-firer assumed that these persons were the claimant and appellant and his drawer. He thought they were the only persons in the vicinity. The two persons were the claimant's and appellant's drawer and a boy who had been in the dook beyond the heading. 8. The shot-firer then turned the handle of the firing apparatus in order to generate the current and make the necessary contact to complete the electric circuit and thereby explode the shot. The shot did not go off. Thinking there might be something wrong at the terminals on the firing apparatus, he drew out the cable wires and examined them, but they were correct. He again attached the wires of the cable to the firing apparatus and turned the handle, when the shot exploded and the claimant and appellant was injured by the explosion. 9. The injury sustained by the claimant and appellant was not serious and permanent. 10. After the shot-firer left the claimant and

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appellant in his working-place, the latter coupled one of the wires of the cable to one of the wires of the detonator or fuse. He did this in the usual and recognised manner of twisting the two wires together. He was in the act of coupling the other wire of the cable to the corresponding wire of the detonator or fuse by holding the wires in conjunction and twisting them together, when the shot-firer made his second attempt to explode the shot. Had the second pair of wires not been in conjunction there would not have been an electrical circuit, and the shot would not have exploded. 11. The firing apparatus used by the shot-firer was operated by turning a handle sharply. The effect of turning the handle was (1) to generate a current of electricity, and (2) to make firing contact automatically at the end of its travel. On release of the handle the firing contact was automatically broken. In order that a shot may go off it is essential ( a) that the two cable wires shall have been connected at one end to the detonator wires, and at the other to the terminals of the firing apparatus, and ( b) that the handle should be turned to the end of its travel. There must be a complete electrical circuit before any current will flow from the firing apparatus by the turning of the handle to the end of its travel, and this is made by having the wires of the cable in contact simultaneously with the terminals of the firing apparatus at one end and the wires of the detonator at the other end. If only one cable wire is connected with one detonator wire and the handle of the firing apparatus is turned to the end of its travel and then released there will be no circuit and no explosion. If the second cable wire is then put in contact with the second detonator wire and the handle of the firing apparatus is turned to the end of its travel there will be a circuit.

On 28th January 1922 I held (1) that the personal injury by accident which the claimant and appellant sustained on 5th September 1921 did not arise out of his employment, and (2) that it was attributable to his serious and wilful misconduct; and I refused to award compensation.”

In a note the Sheriff-Substitute, inter alia, stated—“… Coming to the application of the statutory provisions to the facts, two preliminary observations may be made. The pursuer was entitled to be where he was at the time of the explosion, and one of the risks incident to his employment as a miner was that of injury by shot-firing. On the other hand his action in coupling the cable to the detonator was serious and wilful misconduct— Smith v. Archibald Russell, Limited, 1921 S.C. 335, and many other decisions—and any injury which he sustained through doing the work of a shot-firer did not arise out of his employment as a miner— Kerr v. William Baird & Company, Limited, 1911 S.C. 701; Burns v. Summerlee Iron Company, Limited, 1913 S.C. 227.

The pursuer's claim was based on the decision in Smith v. Fife Coal Company, Limited, 1913 S.C. 662, rev. 1914 S.C. (H.L.) 40. And the facts in that case are in all relevant particulars identical with those in the present case, with one exception. In Smith's case the miner had completed the coupling of the cable to the detonator, and was in course of making his way to a place of safety when the shot-firer exploded the charge and injured the pursuer. And it was held that although the miner had gone out-with the sphere of his employment, and thereby incurred an additional risk which did not arise out of that employment, this act was concluded, and the cause of the injury which he sustained was the shot having been fired before the pursuer had taken proper shelter.

The difference between this case and Smith's case is the smallest conceivable. Measured by time, one or two seconds would have put the pursuer in the same position as Smith. The cause of the pursuer's injury was the double contravention of the Explosives Order by the shot-firer, just as it was in the case of Smith. But here there is added the fact that what the shot-firer did would have had no ill effect had not the pursuer been at the moment assisting him by pressing together the wires of the cable and detonator, thereby completing an electrical circuit, and taking an active and essential part in the shot-firing. I am therefore of opinion that this case should be decided on the ratio of Kerr v. William Baird & Company, Limited ( cit. supra), and not on that of Smith v. Fife Coal Company, Limited ( cit. supra). The difference in the results between Smith's case and the present seems artificial in the extreme, and entirely lacking any human element or reason in common sense. But as the whole Workmen's Compensation Act is artificial in conception, it is inevitable that similar results should follow in its interpretation.

There is, however, one important difference between this case and that of Smith. Smith sustained serious and permanent injury, and the defence of serious and wilful misconduct by breach of the Explosives Order was therefore not open to his employers. The present pursuer's injury was, in the circumstances, remarkably slight, and he has now practically recovered. The hardship in refusing him compensation, if it can be called a hardship, when he brought it on himself, is by no means what it would have been in the case of Smith.”

The questions of law were—“1. Was there evidence on which I was entitled to hold that the personal injury by accident sustained by the claimant and appellant on 5th September 1921 did not arise out of his employment as a miner by the defenders and respondents? 2. Was there evidence on which I was entitled to hold that the personal injury by accident sustained by the claimant and appellant on 5th September 1921 was attributable to his serious and wilful misconduct?”

Argued for the appellant—The appellant was only doing a part of the shot-firer's work. He was entitled to be at the spot where he was until the shot-firer had satisfied himself that no one was near the danger zone. The shot-firer, thinking that he had done so, exploded the charge, thus causing

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the injury to the appellant. The shot-firer's negligence resulting in the explosion and consequent injury was the only fault proved. The present case was ruled by Smith v. Fife Coal Company, 1914 S.C. (H.L.) 40, (1914) AC 723, 51 S.L.R. 496. Counsel also referred to Phillips v. Estler Brothers, 1922, 91 L.J., K.B. 470, 127 L.T. 73; Sneddon v. Glasgow Coal Company, (1905) 7 F. 485, 42 S.L.R. 365.

Argued for the respondents—The Explosives in Coal Mines Order, 1st September 1913, clearly provided that the shot-firer should himself couple up the cables to the fuse-wires. The appellant had contravened these regulations in arrogating to himself duties which he should not have performed. The fact that the appellant here was in the act of coupling up the wires when the explosion took place sufficed to distinguish the present case from that of Smith ( cit.). He was therefore outwith his employment. Further, the appellant was guilty of serious and wilful misconduct, and on that ground also he was disentitled to compensation. The following cases were also referred to:— Donnelly v. A. G. Moore & Company, 1921 S.C. (H.L.) 41, (1921) 1 A.C. 329, 58 S.L.R. 85; Kerr v. William Baird & Company, 1911 S.C. 701, 48 S.L.R. 646; Smith v. Archibald Bussell, Limited, 1921 S.C. 335, 58 S.L.R. 284; George v. Glasgow Coal Company, 1909 S.C. (H.L.) 1, 46 S.L.R. 28.