Scottish Court of Session Decisions

The Employers' Liability Act 1880 (43 and 44 Vict. cap. 42) enacts—“1. Where after the commencement of this Act personal injury is caused to a workman (1) by reason of any defect in the condition of the ways, works, machinery or plant connected with or used in the business of the employer; or (2) by reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him whilst in the exercise of such superintendence, … the workman … shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work. 2. A workman shall not be entitled under this Act to any right of compensation or remedy against the employer in any of the following cases—that is to say—(1) Under sub-section (1) of section 1, unless the defect therein mentioned arose from or had not been discovered or remedied owing to the negligence of the employer, or of some person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition. 8. For the purposes of this Act, unless the context otherwise requires, the expression ‘person who has superintendence entrusted to him’ means a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour.”

George Connell, brusher, brought an action in the Sheriff Court at Glasgow against James Nimmo & Company, Limited, coalmasters, concluding for £500 damages at common law, or, alternatively, under the Employers' Liability Act 1880, for £500 or such sum as might be found due to him in respect of injuries sustained by him as the result of an explosion of gas in a pit in the defenders' colliery.

The pursuer averred, inter alia—“(Cond. 4) The explosion which occurred and the injury sustained by the pursuer thereby were due to the fault of the defenders. It was the duty of the defenders to take all precautions for the safety of their workmen, and in particular of the pursuer. In particular, it was the duty of the defenders to produce constantly in said pit, and in the section thereof in which the pursuer was working, an adequate amount of ventilation to dilute and render harmless inflammable and noxious gases, and to make the roads, levels, and workings of the mine fit for working and passing therein. … It was also the duty of the defenders to have the said pit and the parts thereof and all machinery used therein carefully inspected by persons competent to carry out such inspection. These duties the defenders failed to perform. At the time when the pursuer was injured inflammable gases had been allowed to accumulate in such a quantity as to be dangerous, and as to make the place in which the pursuer and other workmen were working unsafe. The ventilation provided by the defenders was in fact inadequate to dilute and render harmless the inflammable gases given off in said pit, and to make the roads and workings in said pit fit for passing and working therein, and the gas which accumulated exploded and caused the injuries sustained by the pursuer. No inspection, or in any event no sufficient inspection, had been or was made of the machinery used in said pit or of the section of the pit in which the pursuer was working on the occasion when he sustained injury as above set forth. In particular, the defenders failed ., . to have the section of the pit in which the pursuer was working duly inspected during the shift during which the pursuer was working on said occasion.

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(Cond. 5) The said pit in which the pursuer was employed was naturally gaseous or ‘fiery,’ and inflammable gas was likely to be present in such quantity as to be dangerous to the workmen, and to cause risk of explosion. This condition of the pit was well known to the defenders, and was such as made it necessary for the defenders to make special provision for adequate ventilation and to take special precautions to protect their workmen, of whom the pursuer was one, from danger, and to carry out careful inspection of the pit itself and of the machinery therein. The pursuer believes and avers that within a short period prior to the explosion occurring gas had been found in said section of the pit in such quantity as to be dangerous, and that the men working therein had to be removed owing to the danger arising therefrom. The existence of gas in such dangerous quantity had been reported to the defenders. The defenders, however, failed to take any steps to increase the amount of ventilation as they could and ought to have done, and to take adequate precautions to protect their employees from danger, and in particular from the danger of explosion of gas. (Cond. 6) By section 29 (1) of the Coal Mines Act 1911, to which reference is made, the obligation is imposed upon the defenders of providing an adequate amount of ventilation to render harmless inflammable gases, and to make the levels and workings safe for the workmen employed therein. As above stated, the defenders failed to provide an adequate amount of ventilation to render the gases harmless and to make the pit safe for the workmen, and were thus in breach of their statutory obligation. Had the defenders provided an adequate amount of ventilation the said explosion would not have occurred and the pursuer would not have sustained injury. Further, by section 65 of the said Act, it is provided that all parts of the mine beyond the station or each of the stations provided for in section 63 of the Act, and in which workmen are working or pass during that shift, shall be twice inspected during the shift by the persons appointed to inspect, and that in the case of a mine worked by a succession of shifts no place shall remain uninspected for an interval of more than five hours. At the period when the pursuer sustained injury, the mine in which he was working was being worked by a succession of shifts, and the pursuer was working beyond the station contemplated and provided for by section 53 of the Act. On the occasion when the said explosion occurred the place in which the pursuer was then working had not been inspected for an interval of more than five hours. The defenders were thus in breach of the obligation imposed upon them by said section of the statute. Had an inspection been carried out as provided for by the said section, the pursuer believes and avers that the presence of the inflammable gas which caused the explosion would have been detected, and that the explosion and the injuries to the pursuer would have been avoided. The provisions of the said Coal Mines Act 1911 apply to the defenders' said colliery.… (Cond. 7) In the section of the pit in which the pursuer was working on the occasion referred to a coal-cutting machine, driven by electric power, was being used to cut the coal. Owing to the likelihood of the presence of gas in dangerous quantity in said section, keeping in view the amount of ventilation actually provided by the defenders, it was necessary that precautions should have been taken to ensure that every part of the said machine was in proper order, and that there was no open sparking which could cause gas to ignite, and that the said machine should have been carefully examined and inspected by competent persons with electrical training. It was also necessary that careful inspection should have been made in the vicinity of the machine in order to ascertain whether gas was actually present in quantity likely to be dangerous. No precautions, however, were taken by the defenders, and no sufficient examination was made of the machine, and no sufficient inspection of the pit in the vicinity thereof. By section 66 of said Coal Mines Act 1911 it is provided that competent persons appointed by the manager for the purpose shall once at least in every week examine all machinery, gear, and appliances of the mine which are actually in use whether above or below ground. The said coal-cutting machine had been in use for a period much longer than a week, and no such examination as is provided for by said section had been made for a period of at least eleven days prior to the occurrence of the explosion. The defenders were thus in breach of the duty imposed upon them by the terms of said section of the statute. The pursuer believes and avers that if the said machine had been inspected by the defenders in accordance with the above provisions the defective condition of the machine would have been detected, and if the inspection had been carried out by a competent person the defect would have been remedied.… (Cond. 9) The force of the explosion was greatest at said coal-cutting machine, and the two men working therewith were killed. The pursuer believes and avers that the explosion took place at said machine, and was caused by the presence of inflammable gas in dangerous quantity there, and that said gas was ignited by an electric spark from said machine. Had the defenders fulfilled the duty they owe to their workmen, and in particular to the pursuer, and had they taken the usual and proper precautions, the pursuer believes and avers that the injuries he sustained would have been avoided. In particular, if the defenders had not been in breach of the statutory obligation imposed upon them as above set forth, and if the duties of inspection of the place at which the pursuer was working and of examination of the coal-cutting machine had been carried out, … the pursuer believes and avers that inflammable gas would not have accumulated in dangerous quantity, or, in any event, that the presence of the inflammable gas which caused the explosion and of open sparking of the said machine would have been discovered prior

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to the explosion taking place, and that the explosion and the injuries to the pursuer would have been avoided.… (Cond. 10) Further, the coal-cutting machine was in a defective condition owing to the cover of the switch box not being securely attached. In consequence thereof there was open sparking in the machine which caused ignition of the accumulated gas. Said defect was a defect in the condition of the machinery and plant used in the defenders' business in the sense of the Employers' Liability Act 1880. The said machine, as above set forth, had not been duly examined, and the defect was not discovered or remedied in consequence of such failure to examine. John Hoey, the fireman of the shift in which the pursuer was working, was guilty of negligence in failing to inspect the place and the section in which the pursuer was working as above set forth. Said fireman was entrusted with superintendence, and on the occasion in question was in the exercise of superintendence in said pit. Further, the defenders' manager, William Dick, was guilty of negligence in not providing sufficient ventilation in the said pit and in the section thereof in which the pursuer was working, in failing to see that the machinery in the mine was duly inspected in accordance with the terms of the Coal Mines Act 1911. The pursuer's injuries were thus caused by the fault of the defenders or of those entrusted by the defenders with superintendence, and with the duty of seeing that the working-places of the defenders' workmen were safe, and that the plant was maintained in proper condition.”

The pursuer pleaded, inter alia—“1. The pursuer having been injured in his person through the fault of the defenders is entitled to reparation from the defenders therefor. 2. Or otherwise, the pursuer having been injured through the negligence of persons in the employment of the defenders for whom the defenders are responsible under the Employers' Liability Act 1880, the pursuer is entitled to compensation therefor. 3. The pursuer having been injured through a defect in the condition of the machinery and plant connected with and used in the business of defenders, and said defect not having been discovered or remedied owing to the negligence of the defenders or of those in their employment and entrusted by the defenders with the duty of seeing that said machinery and plant were in proper condition under the Employers' Liability Act 1880, is entitled to compensation therefor.”

The defenders pleaded, inter alia—“1. The pursuer's statements are irrelevant and insufficient to support his pleas-in-law. 2. The pursuer not having been injured through the fault of the defenders or of those for whom they are responsible, the defenders should be assoilzied, with expenses. 3. Pursuer not having been injured through the negligence of persons in the employment of the defenders for whom they are responsible under the Employers' Liability Act 1880, the defenders should be assoilzied, with expenses. 4. The accident to the pursuer having been caused through the fault or negligence of fellow-servants in a common employment, the defenders should be assoilzied, with expenses. 5. Pursuer not having been injured by reason of any defect in the condition of the defenders' said machinery or plant, defenders are entitled to decree of absolvitor, with expenses.”

On 27th January 1922 the Sheriff-Substitute ( Fyfe) after a proof dismissed the action.

The pursuer appealed to the Sheriff ( Mackenzie), who on 9th August 1922 sustained the appeal, found that the defenders were liable to the pursuer under the Employers' Liability Act 1880 but not at common law, and assessed the damages at £325.

The defenders appealed by Stated Case under section 14 of the Workmen's Compensation Act 1906 to the First Division of the Court of Session.

The Case set forth, inter alia—“On 9th August 1922, after having considered the cause, I sustained the appeal, recalled the interlocutor of the Sheriff-Substitute dated 27th January 1922, and found the following facts proved, viz.—1. That about 4 a.m. on 1st June 1920 the respondent, while employed as a brusher in No. 3 section of No. 2 pit of the Auchengeich Colliery belonging to the appellants, was injured by an explosion of gas. That at the time of the accident the respondent was working at a place known as the ‘Lye’ in the intake airway of said section; 2. that Auchengeich Colliery is ordinarily a gassy mine in which naked lights are not used; 3. that the appellants had extended an old working by cutting through a whin intrusion and opening up the area beyond said intrusion and to the north thereof; 4. that prior to the explosion this area had been opened up by a cutting to the left known as the left cross cut, and a cutting to the right known as the right cross cut, and by a third cutting in line with the intake airway known as ‘the heading’ (a sketch which formed part of the Case was referred to); 5. that the air which ventilated the section passed along the intake airway through the whin intrusion, then along the right cross cut and round the face, and returned by another cutting through the whin intrusion. That the ‘lye’ at which the respondent was working was to the south of the said intrusion; 6. that within a fortnight prior to the explosion gas had been discovered in ‘the heading’ on several occasions, and on two of these occasions the gas had been found in such quantity as to lead to the withdrawal of the workmen from the heading; 7. that on the said two occasions the machinemen after referred to were working beyond the intrusion and were allowed to remain at their work; 8. that the mine was worked in a succession of shifts; 9. that the ignition of the gas was caused by a spark from an electric coal-cutting machine which was being used in the section; 10. that the coal-cutting machine was fitted with a switch box cover intended to prevent open sparking and the emission of flame to the outer air from the ignition of gas in the switch box, and effectual for that purpose if properly bolted

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down; 11. that at the time of the explosion the ventilation provided failed to dilute and render harmless inflammable gas to such an extent as to make the working-place in the vicinity of the top of the heading fit for working; 12. that the men operating the coal-cutting machine had negligently failed to screw down the cover properly, having used only one of the eight studs provided for that purpose; 13. that during the shift the machinemen had worked the coal-cutting machine, following the direction of the air from the right cross cut round the face to the top of the heading, at which point the explosion occurred; 14. that the fireman employed by the appellants to inspect the section on the respondent's shift negligently and without sufficient excuse failed to inspect the section, as required by the Coal Mines Act, within five hours of the previous inspection; 15. that it was a reasonable inference that if the fireman had fulfilled his duty in regard to inspection he would have discovered that there was a dangerous accumulation of gas, and could either have taken steps to clear it away or have withdrawn the workmen from the neighbourhood; and (16) that the said fireman was charged with the duties applicable to firemen laid down in the said Coal Mines Act and the general regulations thereunder.

I found further on the evidence relative to the respondent's claim at common law that the respondent had failed to prove that his injuries had been caused by fault on the part of the appellants.

I found in law in these circumstances that the accumulation of gas referred to was a defect in the condition of the ways and works connected with or used in the business of the appellants, that it had not been discovered or remedied owing to the negligence of a person in the service of the appellants entrusted by them with the duty of seeing that the ways and works were in proper condition, and that the respondent's injuries were caused by reason of said defect.”

The questions in law for the opinion of the Court were—“1. Was I entitled, on the respondent's pleadings, to consider whether or not the presence of gas at the working-place constituted a defect in the ways and works connected with or used in the business of the appellants in the sense of subsection 1 of section 1 of the Employers' Liability Act 1880? 2. In the event of question 1 being answered in the affirmative, was I justified in holding that the presence of gas at the working-place constituted a defect?”

The Sheriff's note was in the following terms:—… “Before discussing the alleged grounds of liability it will be convenient to consider first how the explosion occurred.

Now it is not matter of dispute that the explosion was caused by flame being brought in contact with explosive gas. Two factors were therefore necessary to produce it—first, a dangerous accumulation of gas, and second, a flame brought in contact with it. As regards the first factor, the section where the pursuer was working was known to be gassy. The presence of gas had been detected on several occasions during the fortnight preceding the accident, and on two occasions in such quantity as to lead to the miners being temporarily withdrawn from the face. Two days, however, before the accident, the ventilation had been improved by the completion of a tunnel through an intrusion of whinstone to provide a passage for the return air, and how gas came to accumulate in dangerous quantity on the night of the accident must be more or less a matter of conjecture. After the accident the return air passage was found to be obstructed by a fall of debris, and if this fall occurred before the explosion it might quite well account for the accumulation of gas. Another explanation might be that for some reason or other an increased quantity of gas had been released from the workings. With regard to the cause of ignition, it is not matter of dispute that the ignition of the gas resulted from the coal-cutting machine being operated without having the cover of the switch box securely belted down over the switch box. Sparking commonly occurs at the switch fingers when the electric current is switched on or off, and the cover of the switch box is provided for the express purpose of preventing explosions being caused by the ignition of gas by such sparking. Gas apparently cannot be prevented from finding its way into the switch box, but if the cover is properly screwed down the flame resulting from the ignition of gas in the switch box cannot escape into the outside air so as to cause an explosion. After the accident it was discovered that only one of the eight studs provided for securing the cover of the switch box was in position. As it was one of the unfortunate results of the accident that the men operating the coal-cutting machine were killed, there is no direct evidence as to how this happened, but there is evidence that the switch fingers occasionally required to be cleaned, and that it was within the scope of the machinemen's duty to remove the cover in order to get access to the switch box for that purpose, and it is a reasonable inference that the men, having had occasion to remove the cover, had not, on replacing it, taken the trouble to bolt it securely down. That this was the cause of the ignition of the gas is, as I have already said, not matter of dispute, and I may add that marks discovered on the machine after the accident indicated that flame had passed under the cover from the switch box to the outer air.

I proceed to consider the grounds on which it is said that the defenders are responsible for the accident at common law.…

[ After dealing with the various grounds of common law liability alleged against the defenders, and finding that the evidence was insufficient to support them, the Sheriff proceeded:—]

I pass now to the grounds on which it is said that the defenders are liable under the Employers' Liability Act, and take first the averment that the acccident was caused by the fault of the fireman on the

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shift—the witness Hoey—in failing to fulfil his statutory duty of inspecting section 3 within five hours of the previous inspection. The fact that he did so fail is, I think, prima facie evidence of negligence on his part, and the burden accordingly is on the defenders to prove that Hoey was prevented from fulfilling his statutory duty in the matter of inspection by causes beyond his control and which could not have been foreseen or provided against. In my opinion they have failed to discharge this burden. The evidence bearing on the point is that of Hoey himself. He acted as fireman and shot-firer, and the sphere of his duties was in sections 3 and 5 of the colliery. On the night of 31st May 1920, after testing the lamps, Hoey went to No. 5 section where he had some shots to fire. Before firing any shot he inspected the section. As a result he detected a ‘sniff’ of gas in a crosscut at the wallhead, and he renewed some screens. He then, at about 12·45 a.m. on 1st June, fired a shot. He observed that after the shot the ‘reek’ travelled slowly, but he did not at the time think that there was anything wrong, and went down to start the pump at the lye in No. 5 section. On his return, it being then nearly 2 a.m., he fired a second shot, and after this shot the smoke hung about half-an-hour so thickly that he could not examine its effect. He then became convinced that something was wrong with the air supply of No. 5 section, and suspecting that the regulating door at No. 3 section was not in position went to examine it. He reached the door of No. 3 section at about 2·45a.m., found it much wider open than it should have been with the result that No. 3 section was getting air intended for No. 5, restored the door to its proper position, and returned to No. 5 where he found the air much clearer. The time was then about 3·15 a.m., and Hoey proceeded to fire another shot in No. 5 section, and after firing it to inspect No. 5 section before proceeding to No. 3. He was on his way to No. 3 to inspect it when he heard of the accident. I cannot, on this evidence, hold that Hoey had any reasonable excuse for failing to inspect No. 3 section before the time at which the explosion occurred. It cannot, I think, be too emphatically laid down that when a fireman is also employed as a shot-firer his duty as fireman comes first, seeing that it concerns the safety of the men working in the mine, and that it must have precedence of his duty as shot firer which concerns only the progress of the work. Keeping that consideration in mind I think that Hoey ought to have proceeded to inspect No. 3 section after he fired the first shot in No. 5, in which case he would have complied with the statutory requirement, as the last inspection in the preceding shift had been made at 9·10 p.m., and there seems to me to be no sufficient excuse for his failure to do so. He suggests, at one part of his cross-examination, that after firing his first shot he noticed that something was wrong with the air current, but if so, his duty was to discover the cause of the defect in the air current and not to fire a second shot. In any case there seems to be no possible excuse for his failure to make the inspection at 3·15 a.m. after he found the air in No. 5 section to be clear. His explanation of his failure to do so amounts merely to this, that he was already too late to fulfil his duty of inspection under the statute and therefore made up his mind to miss out his first inspection of No. 3 section altogether, but his failure to comply with the statutory rule afforded no reason why he should delay still longer to perform a duty prescribed for the safety of the men.

The next question is whether, if Hoey had inspected No. 3 section in accordance with his duty, the accident would have been prevented. The answer is that this can only be matter of inference, but in considering the question it must be kept in mind that one of the main reasons for requiring the regular inspection of mines by firemen is to provide a safeguard for the men employed against the danger of gas accumulating in dangerous quantities. And if a precaution provided against a particular danger has not been taken and an accident results by reason of that danger, it is not enough for the person responsible for taking the precaution to say that it is not proved that had he done his duty the danger would have been averted. The burden is on him to prove the contrary, and in the present case it cannot be said to be proved that if Hoey had performed his duty in the matter of inspecting No. 3 section the presence of gas in the heading would not have been detected and the accident prevented by steps being taken either to clear the gas away or to withdraw the men working at the coal cutter. On the contrary, I think it may be reasonably inferred that had Hoey made the inspection which he should have made, the presence of the gas would have been detected and the necessary steps taken to prevent untoward consequences.

Another question then arises, whether Hoey's negligence can be regarded as the cause of the pursuer's injuries. It was argued that it could not, in respect that the presence of the gas would not have resulted in an explosion but for the interposition of another factor, namely, the communication of flame to the gas, and therefore, that the proximate cause of the accident was the negligence of the men operating the coalcutting machine without securely bolting down the cover of the switch box. I cannot sustain this contention. I agree so far with the argument as to hold that the men operating the machine were in fault. They were bound to have known the danger to be apprehended from gas in a gassy mine and also the object for which the switch box cover was provided, and that it was their duty to keep the cover securely fastened, but I dissent from the contention that their negligence is alone to be regarded as the proximate cause of the accident. If it can be said that the gas would not have exploded without the flame, equally can it be said that the flame would not have caused the explosion had it not been for the accumulation of gas, and that but for the presence of the gas the spark of the switch fingers of the electric coal cutter would

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have produced no flame. In my opinion both flame and gas were essential factors in causing the explosion, and I am therefore of opinion that the injuries sustained by the pursuer resulted from the combined negligence of Hoey and the men operating the coal-cutting machine.

The next question is whether the defenders are responsible for Hoey's negligence under the Employers' Liability Act, and this question, I think, must be answered in the affirmative. In my opinion the accumulation of gas in the workings was a defect in the condition of the ways and works of the mine within the meaning of sub-section (1) of section 1 of the Act— Black v. Fife Coal Company, 1909 S.C. 152, especially per Lord Justice-Clerk Kingsburgh at page 162, 1912 S.C. (H.L.), per Lord Kinnear at page 40. I think also that the condition imposed by sub-section 1 of section 2 of the Act is satisfied in respect that the defect was not discovered or remedied owing to the negligence of the fireman Hoey, who was the person entrusted with the duty of seeing that the ways and works were in proper condition. It is argued that the accumulation of gas was not a defect of so permanent a character as to be a defect in the condition of the ways and works within the meaning of sub-section 1 of section 1. I am unable to accept that view. The presence of gas in the ways or works of a mine does not resemble a casual obstruction affecting the safety of ways, or a chance of escape of gas causing danger in a factory, for in the case of a mine, or at all events a gassy mine, gas is one of the dangers which requires to be provided against by special precautions, and I think it impossible to hold that the presence of gas in the ways or works is not a defect in the condition of the ways and works. I also refer to Black's case as an authority supporting my view.

It was further contended that I was not entitled to entertain this ground of action, in respect that there was no foundation for it on record, and that additional evidence might possibly have been led by the defenders if notice that the question was going to be raised had been given. In my opinion this argument is not well founded. It is averred on record that Hoey was the person whose duty it was to inspect the section, and it is also averred that if he had carried out that duty the presence of gas would have been detected and the injuries to the pursuer prevented. All the averments, therefore, necessary to bring the case within sub-section 1 of section 1 of the Employers' Liability Act were made on record, and at the time proof was taken the record contained only a general plea under the Employers' Liability Act, and therefore the defenders' advisers cannot say that their attention was diverted from these averments by the special plea relative to the coal cutter, which was not inserted until after proof was taken.

If I am right in the opinions I have expressed in the two preceding paragraphs, I think it follows that the defenders are liable to the pursuer in damages under the Employers' Liability Act. I cannot hold it to be a good ground of defence that the negligence of fellow servants of the pursuer for whom the defenders are not answerable contributed to the accident. The negligence of the fireman, for whose failure of duty the defenders are in the circumstances responsible, was also a contributory cause, and the right of the pursuer to claim from the defenders compensation for the injury resulting from the fireman's negligence is the same as if he had not been in their employment. The case appears to me to be one in which personal injury has been caused by the joint delinquency of two wrongdoers, and the rule in such a case is that the injured person may seek redress from either— Matthews v. M'Donald, 3 Macph. 506, per Lord President M'Neill at page 507.

Having reached this conclusion, I do not find it necessary to consider whether Hoey was a superintendent within the meaning of the Employers' Liability Act, or to consider the other grounds on which it is maintained that the defenders are liable under the Act. It therefore remains only to consider the question of damages. …”

Argued for appellants—The pursuer had not relevantly averred nor proved a defect in the condition of the ways and works in the sense of the Employers' Liability Act 1880. This being a gassy mine, the accumulation of gas was not in itself a defect. If pursuer founded on section 2 (1), the averment that the fireman who had failed to inspect was entrusted with superintendence was clearly irrelevant; if he founded on section 1 (2), he should also have averred, following the definition in section 8, that the fireman “was not ordinarily engaged in manual labour.” The following authorities were referred to—Beven on Negligence, vol. i, p. 690; Black v. Fife Coal Company, 1909 S.C. 152, 46 S.L.R. 191, 1912 SC (HL 33, 49 S.L.R. 228; M'Giffin v. Palmer's Shipbuilding Company, 1882, 10 QBD 5; Mitchell v. Coats Iron and Steel Company, 1885, 23 S.L.R. 108; M'Quade v. Wm. Dixon, Limited, 14 R. 1039, 24 S.L.R. 727; Willetts v. Watt & Company, [1892] 2 QB 92, per Lord Esher, M.R., at p. 97, and Fry, L. J., at p. 100.

Argued for respondents—A dangerous accumulation of gas even in a gassy mine was rightly described as a defect in the condition of the ways and works within the meaning of the Employers' Liability Act 1880. This view was supported by the terms of the Coal Mines Act 1911 (1 and 2 Geo. V, cap. 50). Section 29 provided that “an adequate amount of ventilation shall be constantly produced… to dilute… noxious gases to such an extent that all shafts, roads, … shall be in a fit state for working and passing therein.” The pursuer had clearly averred that Hoey was the person whose duty it was to inspect the section, and that if he had carried out that duty the defect would have been discovered and the accident avoided. These averments brought the action within section 2 (1). As regards section 1 (2), the objection taken that pursuer had omitted to state that Hoey was “not ordinarily engaged in manual labour”

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was purely technical and should be disregarded. The following cases were referred to:— Campbell v. United Collieries, Limited, 1912 S.C. 182, 49 S.L.R. 140; Ferris v. Cowdenbeath Coal Company, 24 R. 615, 34 S.L.R 492; Smith v. Baker & Sons, [1891] App. Cas. 325; Matthews v.M'Donald, 1865, 3 Macph. 506; Farnham v. New Bank Coal Company, 23 R. 722, 33 S.L.R. 555; Black v. Fife Coal Company ( cit.); M'Quade v. Wm. Dixon, Limited ( cit.); Willetts v. Watt & Company ( cit.).