Scottish Court of Session Decisions

The Arden Coal Company, Limited, Lanarkshire, appellants, being dissatisfied with an award of the Sheriff-Substitute at Lanark ( Harvey) in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), between them and Thomas M'Intosh, miner, Lesmahagow, respondent, appealed by Stated Case.

The Case stated—“The following facts were established, viz.—1. On 17th March 1922 the respondent was in the employment of the appellants as a miner. 2. On said date, in the course of said employment, the respondent was along with two fellow workmen, John Gilmour and Alexander Gray, driving a stone mine in order to get at the coal seam in the appellants' Hagshaw mine, Douglas. 3. In the course of this work, in the afternoon shift beginning at 3 p.m., two shot-holes were bored, the one by Gray and the other by Gilmour, and charged by them with explosives, a detonator and fuse, in the usual manner adopted in mines, whereas in said Hagshaw mine the use of naked lights is permitted. 4. About 5 p.m. the fuse of the shot prepared by Gray was lighted by him by applying the flame of his lamp thereto. At the same time Gilmour attempted to light the fuse of his shot by the same method, and Gray also applied the flame of his lamp to Gilmour's shot. 5. The three men, believing that Gray's fuse had been successfully lighted and that Gilmour's had not, left the face and retired to a man-hole 30 or 40 fathoms from the face and the shot-holes—which it took them about three minutes to reach—in order to allow the shot fired by Gray to explode. 6. After the men had sought safety in the said manhole, the shot fired by Gray exploded, and immediately after hearing the report of this explosion the respondent and Gilmour returned to the face in order to make a second attempt to fire Gilmour's shot—the respondent going with Gilmour in case Gilmour's light should be extinguished in applying it to the fuse. 7. On arriving at the face—not more than 15 minutes after Gilmour had made his attempt to light his fuse—and when Gilmour was about to apply his naked light to the fuse, the shot exploded in the faces of the respondent and Gilmour, inflicting serious injuries on Gilmour and serious and permanent injuries on the respondent, involving the loss of his left eye and damage to the sight of his right. 8. The respondent was not the firer of the shot in question, but he was present when Gilmour and Gray attempted to light Gilmour's fuse and was aware that the attempts had been made. 9. It was not proved that the respondent as well as Gilmour and Gray applied the light of his lamp to the fuse when the first attempt was made to light it. 10. The said Hagshaw mine is one to which the Coal Mines Act 1911 applies, as also the Regulation 3 ( a) of the Explosives in Coal Mines Order of 1st September 1913, by which it is provided as follows ‘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,’ the latter being the alternative applicable to the said Hagshaw mine. 11. Along with a copy of said regulation there was posted up in said mine at its entrance and in the engine-room the following ‘Warning in case of a miss-fire shot,’ namely—‘The attention of all workers in this colliery is called to section 3 ( a) of the Explosives in Coal Mines Order of 1st September 1913 made by the Home Secretary, which provides that if a shot misses fire no person shall 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 it is hereby directed that the above-mentioned provisions shall apply to all cases where an attempt has been made to light a shot and the men have retired, and no person shall in such circumstances, on any pretext, return to the place before the expiry of the above-mentioned periods respectively from the attempt to light the shot. The management will, where allowable, found on any breach of the provisions of the section above quoted, and of this notice, as “serious and wilful misconduct” on the part of the workman, or as being outwith his employment, in the event of an accident resulting therefrom.’ The respondent had read both notices, but his special attention was not called to either. 12. Said ‘warning’ or notice was issued at their own hand by the management and had no statutory authority.”

The Case further stated—“At the hearing before me the respondent's agent objected

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to the absence in the appellants' answers of any plea founded on the special notice or warning therein referred to. I indicated that I would allow such amendment and appoint a subsequent diet of proof in regard to it if moved to do so. The respondent's agent thereupon withdrew his objection and consented to the case being dealt with on the evidence already led and on the footing that the amendment of the pleadings had been made. A copy of the special notice was to be lodged in process together with any further citation of authorities which either party desired to submit to the Court. From these facts I found in law that the said ‘warning’ was not valid as a limitation of the respondent's employment, and that in returning to the shot-hole within the interval of an hour, the respondent not being the firer of the shot did not commit a breach of said Regulation 3 ( a), and that the said accident arose out of, as well as in the course of, his employment with the appellants. I found further in fact that prior to said accident the average weekly wage earned by the respondent was £2, 14s., that as the result of said accident he was totally incapacitated for work from said 17th March 1922 till 19th January 1923, and that since said 19th January 1923 he has been, and that he still is, partially incapacitated for work, being fit only for work on the surface as a labourer in safe places, and where he will not come in contact with moving vehicles or machinery in motion, and that at such work he could earn an average weekly wage of £1, 12s. 6d. I therefore awarded the respondent compensation as for total incapacity at the rate of £1 weekly (with war additions) from 17th March 1922 till 19th January 1923, and thereafter, until further order, awarded him compensation as for partial incapacity at the rate of £1 weekly, and found him entitled to expenses.”

The questions of law were—“1. Was I right in holding that said warning or notice was not valid as a limitation of the respondent's employment with the appellants on the ground that it had no statutory authority? 2. On the foregoing facts was I entitled to find that the accident to the respondent arose out of and in the course of his employment with the appellants?”

In a note to his award the arbitrator stated—“In the view I take of this case it seems unnecessary to involve the parties in the expenses of a further hearing or of an amendment of the defenders' pleadings. An amendment specifically founding their defence on the ‘warning’ posted at the mine along with the statutory regulation, of which it bears to be exegetical, would as matter of course be allowed, and I am dealing with the case on the footing that such an amendment has been made. In fact I understand that the case was left with me on that footing at the close of the hearing, subject to a note of authorities being submitted to me by the agents for the parties along with a copy of the exact terms of the ‘warning.’

Where a mine is worked under statutory rules or rules having the force of statute, it has been laid down that these rules cannot be abrogated, waived, or informally modified by the employer— Colville v. Fife Coal Company, 1921 S.C. (H.L.) 41, at pp. 44, 46, 50, and 52. In Colville's case there was a ‘notice’ in the same terms as the ‘warning’ in this case, but in the view of the Lord President (Clyde) the judgment in Colville's case did not turn on this notice, which in the Lord President's opinion was (as regards the question raised in Colville's case) exegetical merely of the statutory prohibition and added nothing to it— Smith v. Archibald Russell, Limited, 1921 S.C. 335, at pp. 338, 339. Having regard to the decision in the case of Baillie v. Coltness Iron Company ( 1922 S.C. (H.L.) 76, 79) it cannot be said that the ‘warning’ founded on by the defenders is with reference to the question raised in this case merely exegetical of the statutory rule, for if it were binding on the pursuer as a limitation of his employment it would conclude the case against him. In Baillie's case Lord Dunedin says of the statutory rule—‘Prohibition is laid on one man only, namely, the shot-firer’; and he adds—‘It would be easy to frame the order in such terms as “No one shall approach,” &c. It is not so framed, and until it is so I do not think we can find a universal prohibition.’ It seems to follow that the construction of the rule rejected in Baillie's case cannot be enforced against a workman by such a notice as was posted up in this case, and that the meaning which the defenders desire to attach to the statutory rule can only be given to it by a modification of its terms having statutory authority. If it were open to the employer to enforce against the workman the employer's construction of a statutory rule, it ought to be equally open to the workman to insist that he shall be bound only by his (the workman's) construction of it. Both are equally bound by the construction put upon it by the Court.

I accordingly find, following the case of Baillie, that the pursuer not being the firer of the shot committed no breach of the statutory rule, and that he was bound by no other. It was not argued before me that apart from any express prohibition he added a risk by what he did to the risks properly incidental to his employment.”

Argued for the appellants—The respondent when injured was acting in breach of a prohibition which the appellants had validly imposed, without statutory authority, so as to limit the sphere of his employment. The accident therefore did not arise out of and in the course of the respondent's employment. Accordingly he was not entitled to compensation— Donelly v. Moore & Company; Colville v. Fife Coal Company; Gordon v. Fife Coal Company, 1921 S.C. (H.L.) 41, per Lord Chancellor at p. 46, Viscount Finlay at p. 48, Lord Dunedin at p. 49, and Lord Shaw at pp. 51 and 52, 57 S.L.R. 380. No statutory procedure was required for such a notice unless it was intended to impose penalties. All that was required was that the attention of the workman should have been drawn to the notice, and this was not always necessary— Wardle v. Enthoven & Sons, Limited,

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1916, 10 B.W.C.C. 79, per Cozens-Hardy, M.R., at p. 84. The notice was quite unambiguous, and clearly applied to all persons and not merely to shot-firers, and “attempt” to light was equivalent to lighted— Smith v. Archibald Russell, Limited, 1921 S.C. 335, 58 S.L.R. 284. In Bstler Bros. v. Phillips, 1922, 15 B.W.C.C. 291, where the prohibition related to the conduct of the work only, there was no departure from the principle of Donelly v. Moore & Company, &c. ( cit.), per Lord Buckmaster at p. 294. The case of Herbert v. Samuel Fox & Company, Limited, [1916] 1 A.C. 405, per Lord Shaw at p. 416, was also referred to.

Argued for the respondent—The notice was merely exegetical of the statutory regulation along with which it was posted and added nothing to the regulation. It therefore only applied to shot-firers— Baillie v. Coltness Iron Company, Limited, 1922 S.C. (H.L.) 76, 59 S.L.R. 118; Costello v. Addie & Sons' Collieries, 1922 S.C. (H.L.) 72, per Lord Dunedin at p. 75, 59 S.L.R. 116—and could not limit the employment of the respondent. In Colville v. Fife Coal Company ( cit.), where there was a notice in similar terms, it was not thought that the notice added to the statutory regulation, and the same view was taken in Smith v. Archibald Russell, Limited ( cit.). If, however, it was intended to do so, the requisite statutory procedure had not been followed and the notice was of no effect—Coal Mines Act 1911 (1 and 2 Geo. V, cap. 50), secs. 86 to 89; Waddell v. Coltness Iron Company, 1912, 50 S.L.R. 29. In any event the notice was too vague in its terms to limit the sphere of the respondent's employment.