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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kirby v National Coal Board [1958] ScotCS CSIH_2 (25 July 1958)
URL: http://www.bailii.org/scot/cases/ScotCS/1958/1958_SC_514.html
Cite as: 1959 SLT 7, 1958 SC 514, [1958] ScotCS CSIH_2
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25 July 1958
| Kirby |
| v. |
| National Coal Board |
Counsel for the pursuer conceded in the course of his excellent and candid address that it was a reasonable inference from the evidence that the methane gas was set on fire by a naked light. He submitted, however, that there were two causes of the accident, for each of which the defenders were responsible. The first was that the ventilation of the North Side Main Coal Section was defective. The defenders were in breach of section 29 (1) of the Coal Mines Act, 1911, of the Coal Mines Ventilation (General) Regulations, 1947, and of the Coal Mines General Regulations (Firedamp Detectors), 1939, as amended. The second cause was the striking of a match by an unknown fellow servant of the pursuer, for whose action the defenders were vicariously liable.
Section 29 (1) of the Coal Mines Act, 1911, enacts as follows:—[His Lordship quoted from sec. 29 (1), and continued]—Counsel for the pursuer submitted that a breach of section 29 (1) by the defenders was conclusively established by the fact that various workmen at the coal face and in the roads leading from it had suffered injury from the ignition of gas. The occurrence showed that at the time of the accident inflammable gas was present in these places, and had not been diluted and rendered harmless. The statutory requirement that roads and workings should be in a fit state for working and passing was absolute. Therefore, the only possible defence open to the defenders was under section 102 (8), that it was not reasonably practicable for them to avoid the breach of section 29 (1). That defence had not been established. In my opinion, it is incorrect to say that the occurrence demonstrates a breach of section 29 (1). The section proceeds upon the assumption, the necessary assumption in view of the conditions under which work is carried on in many mines, that inflammable and noxious gases may be discharged into the air. What is required by the section is not that such gas shall never be present, but that effective steps shall be taken to deal with gas when it is present. The word "constantly," upon which counsel founded, refers to the provision of ventilation, and not to the absence of gas. It is true that the statute requires that roads and workings shall be in a fit state for working and passing therein, but, as counsel for the defenders pointed out, that means obviously the ordinary working and passing in a mine where safety lamps are required to be used. It clearly does not mean that these parts of a mine shall be clear of gas to such an extent that a match may be lit with impunity. Statutory provisions have been made requiring the use of safety lamps in such mines, because work may be carried on there safely when open flames are not used.
Several cases were cited in the course of the argument on this topic. I need only refer to Yelland v. Powell Duffryn Associated Collieries, Limited, [1941] 1 K. B. 154. The Judge of first instance had held that the coal owners were in breach of section 29 (1) when their system of ventilation was adequate for all normal requirements, but "was not adequate to disperse an abnormal, sudden and incalculable emission of gas" which occurred at the moment when an electrician negligently caused a spark which ignited it. This view was disapproved by the Court of Appeal, and in particular by McKinnon, L.J., at p. 161, and by du Parcq, L.J., at p. 163. Du Parcq, L.J., said:
"In my view the requirements of that section were satisfied. The amount of ventilation produced was adequate to dilute inflammable gases to the extent required by the section, and the intake airways were ‘normally kept free from inflammable gas’ The cause of the explosion which killed and injured men working in the mine was not any inadequacy of ventilation, but an act of negligence which caused the sudden ignition of inflammable gas. There is nothing to suggest, nor does the Judge find, that any amount of ventilation in the ordinary sense of that word would have prevented the disaster …"
The opinions of the Judges in the Court of Appeal are against the construction of section 29 (1) contended for by the pursuer in this case. I hold that the occurrence does not by itself prove a breach of section 29 (1).
It is, therefore, necessary to consider whether the pursuer has proved that the defenders failed to produce constantly an adequate amount of ventilation in the North Side Main Coal Section of their Whitrigg Colliery, and, if that failure is proved, whether it was a cause of the accident. [His Lordship referred to the evidence.] The conclusion which I have reached on this part of the case after repeated perusals of the evidence is that the pursuer has entirely failed to prove a breach of section 29 (1) by the defenders.
[His Lordship then dealt with a matter with which this report is not concerned, and continued]—The important and interesting question raised by this action is whether the defenders are vicariously responsible for the action of the culprit or culprits who ignited the firedamp on 12th April 1954 by striking a match. In order to answer this question it is necessary to consider with care the point at which, and the circumstances in which, the ignition took place. It was, as I have noted, common ground between counsel at the hearing on the evidence that the ignition took place near the boundary between Hynds' and Kirby's stints, and that from that point of origin flames spread in both directions. I have already held that the pursuer has failed to prove that the place of ignition of the gas was at the face. The inference which I have drawn from the whole evidence is that the defenders have proved that the ignition took place in the waste, that is, in the unsupported ground on the side of the conveyor belt away from the face. In the Coal Mines (Support of Roof and Sides) General Regulations, 1947, "waste" is defined as "the space outside any face working, road or roadhead and not occupied by packs, from which the coal or other material has been extracted." The pursuer, Kirby, Hynds, and Fleming all agreed that the area behind the conveyor belt from which the coal had been extracted in the North Side Main Coal Section was waste ground from which the supports had been withdrawn. It was agreed by all the witnesses in the case who mentioned the matter that a miner has no duty to go into the waste, and that he ought not to go there. It was also admitted by the witnesses for the pursuer that a miner who went into the waste in order to smoke was not performing any act on behalf of his employers, but was doing something for his own purposes, and was reckless of his own safety and that of his fellow workmen.
Now the most sinister evidence in the proof is that contraband had been placed near the pack at the boundary of the stints of Kirby and Hynds. Other contraband, consisting of smoked cigarettes and spent matches was found in the bottom road, and it is likely, as suggested by counsel for the defenders, that smoking took place there at piece time. Hynds, Kirby, Rodgers, Fleming and Moore, and possibly Blazy, took their pieces there. But the finding of the tin box with cigarettes and live matches in the waste shows that some man or men intended to use them for smoking, in the waste or elsewhere, when a suitable opportunity occurred. The discovery of the spent match near the same place by Coverdale and Forrest indicates the likely origin of the fire. The head of the match had been burnt, but the wood was barely charred, showing that the match had been lit but immediately extinguished. It is possible that it was extinguished by being dropped immediately the blast of fire scorched the striker. [His Lordship referred to the evidence, and continued]—Accordingly, in my opinion, the evidence leads to the conclusion that the ignition took place in the waste near the junction of the stints of Kirby and Hynds. In view of the absence of any signs of gas when tests were made after the ignition, it would appear that the source of the disaster was a temporary and small accumulation of gas in the waste, which, of course, being abandoned and unsupported, is outwith the area of ventilation.
Counsel for the pursuer submitted that the striking of a match was a breach of the common law duty of reasonable care towards his fellow workmen which the culprit owed to them, and that the defenders were liable for that breach of duty even although it was also a breach of statutory duty—Matuszczyk v. National Coal Board, 1953 S. C. 8; National Coal Board v. England, [1954] A. C. 403. The general rule was that a master was vicariously liable for the actions of his servant in the course of his employment. The master was liable to third parties if the workman negligently smoked in the course of his employment—Century Insurance Co. v. Northern Ireland Road Transport Board, [1942] A C 509. If the culprit was smoking when he was not actively engaged because of the stoppage of the conveyor belt, he was still in the course of his employment, because "they also serve who only stand and wait" (ibid., per Viscount Simon, L.C., at p. 514). A miner was in the course of his employment when he had descended the pit to do the work of his shift. In Robertson v. Woodilee Coal and Coke Co., 1919 S. C. 539, affirmed 1920 S. C. (H. L.) 71, Lord Skerrington said (at p. 545):
"I see difficulties in the way of holding that this man was not in the course of his employment when he entered the mine and when he hewed the coal, merely because he illegally had a box of matches in his pocket. Equally I see difficulty in holding that he was not in the course of his employment when he was resting after his work even though at the time he had a lighted pipe in his mouth. Suppose that he had met his death through an accident arising out of the employment, say, by the fall of a stone from the roof: would his claim have been defeated because he had in his possession a box of matches, or because he was smoking at the time of the fall?"
If it were held that the present accident was caused by the lighting of a match by a miner during a break in the shift, these observations of Lord Skerrington were applicable to the present case, and stated the principle on which the pursuer was entitled to succeed. The prohibition against a workman having cigarettes and matches in his possession in this colliery was not a prohibition which limited the sphere of the employment, but one which only dealt with conduct within the sphere of the employment—Plumb v. Cobden Flour Mills Co., Limited, [1914] A C 62, at p. 67, per Lord Dunedin, applied in Canadian Pacific Railway Co. v. Lockhart, [1942] A C 591, at p. 599. Therefore it was sufficient to entitle the pursuer to succeed if it were held that a servant of the defenders struck a match when he was below ground for the purpose of his employment, even if it were proved that the culprit was filling in time during a break in the actual work by smoking in the waste. The defenders were liable for his failure in these circumstances to take reasonable care for the safety of his fellow workmen when he was employed by the defenders underground in a "gassy" pit in which the striking of a match was a dangerous act. In any event, it was for the defenders to prove, in the circumstances of this case, that the culprit was at the time outwith the scope of his employment, and they had failed to do so.
Counsel for the defenders submitted that the onus of proof of the defenders' vicarious liability rested upon the pursuer. Accordingly, it was for the pursuer to prove the averment in the closed record at p. 15(C):
"Esto that the explosion was caused by the ignition of a match by one of the workmen in the said section other than the pursuer (which is not known and not admitted), the accident was caused by the fault and negligence of the said workman, who was acting within the scope of his employment and for whose actings the defenders are responsible."
If it was not proved which workman lit the match, or what he was doing when he lit the match, the pursuer had failed on an, essential part of his case, since the culprit might have been engaged at the time in a frolic of his own. The defenders would not, in such circumstances, be liable for his conduct. But it was admitted by the pursuer in his evidence that there was no reason for anyone to go into the waste and smoke a cigarette, and that such an act had nothing to do with his job. Evidence was also given on behalf of the defenders to the effect that there was no need for a workman to cross the conveyor to the side away from the face and to enter the waste. It was proved that the ignition had taken place in the waste. Therefore the culprit was not acting within the scope of his employment when he entered the waste and struck a match, and the defenders were not vicariously responsible for his actions. The test of the vicarious liability of an employer was whether his servant was doing something for him and did it negligently. In the present case there was no evidence that the culprit failed to do with care anything connected with his work. Accordingly, the cases founded upon by the pursuer were distinguishable. The dictum of Lord Skerrington in Robertson was obiter and had not been approved in the House of Lords—1920 S. C. (H. L.) 71. In Conway v. Pumpherston Oil Co., 1911 S. C. 660, it was held that an accident arose out of and in the course of the employment of a miner who had, in defiance of a prohibition, gone with a naked light beyond a fence barring a road, and had so caused a fatal accident. That decision was overruled in Donnelly v. Moore & Co., 1921 S. C. (H. L.) 41. In Alford v. National Coal Board, 1952 S. C. (H. L.) 17, at p. 21, Lord Normand stated the question in such cases as being whether the workman was doing what he was employed to do. Here the evidence proved that the workman was not doing what he was employed to do, and, in any event, it was not proved that he had been doing what he was employed to do. The prohibition against possession of contraband in the mine which the culprit defied was statutory, and applied to all persons and not merely to workmen. Therefore, when the culprit lit a match in the waste, so causing injuries to himself and others, he was not, in the words of Viscount Cave quoted by Lord Birkenhead, L.C., in Donnelly (at p. 46), "doing a permitted act carelessly; he was doing an act which he was prohibited from doing by statutory provisions which attached to his employment and which by those provisions was expressly excluded from his employment." Accordingly, the defenders were entitled to absolvitor.
I have set forth the main arguments of counsel at length because of the importance of the issue, and because I have been unable to accept in its entirety the submission for either side.
In my opinion, the prohibition against the possession of contraband, including matches and cigarettes, contained in the Coal Mines Act, 1911, section 35, cannot be regarded as a prohibition which limited the sphere of the employment of the men in the Whitrigg Colliery. It does not define and delimit the duties of a stripper or a brusher or a shot firer. Clearly it is a prohibition which dealt with their conduct within the sphere of their employment. While engaged in their work as strippers, brushers, or shot firers, they must not have in. their possession a prohibited article. This interpretation is an obvious conclusion from the fact that the section applies not only to miners but to all persons. Accordingly, I am unable to accept the argument for the defenders that the possession of contraband by a miner, in breach of a statutory prohibition, placed him outwith the scope of his employment, and absolved the defenders from vicarious liability for the consequences of his breach of the statute.
But the question on which the result of the present case depends is whether the use of a naked light in the waste by one of the defenders' servants was an act in the course of his employment which rendered the defenders vicariously liable for the consequences.
In several cases it has been held that, when a servant has caused damage or injury by lighting a match in order to smoke while engaged at his work, his master is vicariously responsible for his conduct, e.g., Jefferson v. Derbyshire Farmers Limited, [1921] 2 K. B. 281; Century Insurance Co. v. Northern Ireland Road Transport Board, [1942] A C 509. In Jefferson a youth employed in a garage lit a cigarette and threw the match on the floor while he was drawing motor spirit from a drum. The match set light to petrol and oil on the floor, and the result was that the garage was burned down. His employers had the use of the garage, and were sued for damages by the owners and tenants. It was held that the youth had been negligent while engaged in the act of drawing motor spirit from a drum within the scope of his employment, and that his employers were consequently liable in damages. Atkin, L.J., said (at p. 289):
"It is irrelevant to consider whether he was authorised by his employers to smoke. He was authorised to draw the benzol, and he was doing that act negligently …"
In Century Insurance Co. a lorry driver caused a conflagration by striking a match to light a cigarette while transferring petrol from a lorry to an underground tank. It was held that his employers were liable for the damage. Lord Wright said (at p. 519):
"The act of a workman in lighting his pipe or cigarette is an act done for his own comfort and convenience and, at least generally speaking, not for his employer's benefit, but that last condition is no longer essential to fix liability on the employer—Lloyd v. Grace Smith & Co., [1912] A C 716. Nor is such an act prima facie negligent. It is in itself both innocent and harmless. The negligence is to be found by considering the time when and the circumstances in which the match is struck and thrown down. The duty of the workman to his employer is so to conduct himself in doing his work as not negligently to cause damage either to the employer himself or his property or to third persons or their property, and thus to impose the same liability on the employer as if he had been doing the work himself and committed the negligent act."
In such cases the liability of the employer has been affirmed on the ground that the lighting and throwing away of a match for the purpose of smoking were not separate acts from the work upon which the servant was engaged at the time on behalf of his master, but were negligent conduct in the performance of his job. The circumstances are, however, essentially different when a servant is not at the time doing any work on behalf of his master, and, in order to smoke, has gone to a portion of his master's premises which he is not authorised to enter, has there lit a match, and has thus caused injury or damage. In these circumstances the ratio decidendi of Jefferson and Century Insurance Co.does not apply. The lighting of the match for the purpose of smoking, in such circumstances, is not misconduct in doing the servant's work for the master, but it is an independent act unauthorised by the employer. Counsel for the pursuer, as I have noted, argued that if the servant was smoking during an interruption of his active work caused by a breakdown of machinery, he was still engaged on his master's business, since "they also serve who only stand and wait." But Milton's line expresses a religious truth and is not a legal maxim. Viscount Simon's quotation of it in Century Insurance Co., at p. 514, was carefully qualified by the words "in circumstances like these," the circumstances being that it was the duty of the waiting servant to watch over and attend to the delivery of petrol into a tank. In the circumstances of the present action, it appears to me that the statement of the law contained in Salmond on Torts, (9th ed.) p. 95, approved by Lord Thankerton in Canadian Pacific Railway Co. v. Lockhart, [1942] A C 591, at p. 599, is applicable. The statement is:
"On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible; for in such a case the servant is not acting in the course of his employment, but has gone outside of it."
Counsel for the defenders, in the course of his admirable speech, suggested a useful test of liability of an employer based upon the opinion of Lord Sands in the Central Motors (Glasgow) Ltd. v. Cessnock Garage and Motor Co., 1925 S. C. 796, at p. 806, namely to inquire in what respect has the employee failed to do carefully what he was employed to do. If one applies that test, the answer is that in Jefferson and Century Insurance Co. the workman failed to transfer inflammable spirit with reasonable care, and, therefore, the master was liable. In London County Council v. Cattermoles (Garages) Limited, [1953] 2 All E R 582, a garage hand whose duty was to move cars in a garage, but who had no driving licence and was forbidden to drive vehicles, having been asked to move a van, drove it on to the highway, intending to turn it there so as to move it more conveniently into the garage, and was involved in a collision on the road. His employer was held liable in damages. That case is an extreme example of the doctrine of the vicarious responsibility of a master for his servant's negligence, but it was decided on the ground that the driving by the garage hand of the car, and his driving it on to the highway, was not independent of the job of moving the car, but was an unauthorised or prohibited mode of doing his authorised job. The argument of counsel for the pursuer would result in the master being held liable for every act of his servant on the master's premises and during working hours. The law, as I understand it, does not go so far. In the present case, the workman who lit the match did not fail to perform his work with reasonable care for his fellow workmen, but he injured them when engaged, in counsel's words, upon a frolic of his own. The facts that the frolic took place on the defenders' premises and during his working shift are not, in my opinion, sufficient to impose liability upon the defenders. The decision in Dempster v. Road Haulage Executive, 8th October 1952 (unreported), seems to me to be a useful precedent. In that case the pursuer's son was seriously injured when he was a licensee on garage premises belonging to the defenders at Kinross. A driver's mate, Fotheringham, employed by the defenders, tried to light a stove to boil water to make tea. To stimulate the fire he sprinkled paraffin from a can over it. The paraffin in the can caught fire, and Fotheringham dropped the can and kicked it away from him. Burning liquid from the can splashed over the pursuer's child who was seriously burned. The defenders' manager did not allow their employees to make tea on the premises in working hours, and, when Fotheringham lit the stove, he did it for his own benefit, for a purpose disapproved by the manager. The defenders were assoilzied on the ground that Fotheringham's action was unconnected with their business and with the work which he was engaged by them to perform. Lord President Cooper said:
"At the material time Fotheringham was not acting within the scope of his employment, but was engaged in performing an act solely for his own purposes, without authority, and under circumstances which would have led to rebuke or prohibition if the attention of his superiors had been drawn to it."
These words can be applied to the actions of the miner who lit the match in the waste which ignited the gas and injured the pursuer, and they state the reason for which, in my opinion, the present case must be decided in favour of the defenders. In Dempster I said:
"A master is liable for the negligence of his servant when the negligence takes place within the scope of the employment in the performance of an act which the servant is employed to do. But a master is not liable when the servant is negligent in doing an act unconnected with his master's business and for his own benefit. This applies especially when, as in the present case, the act was forbidden."
To that statement I may add that in such circumstances the master is not liable even if the servant's act is done on the master's premises and during the servant's working hours.
For these reasons I am of opinion that the pursuer has failed to prove facts and circumstances which would impose vicarious responsibility on the defenders. I do not think that the obiter dictum of Lord Skerrington in Robertson v. Woodilee Coal and Coke Co. presents any obstacle to that conclusion. It was uttered in a case under the Workmen's Compensation Act, 1906, dealing with the words "accident arising out of and in the course of the employment." There may well be circumstances in which an accident would arise out of and in the course of the employment, although the victim was smoking at the time, as for example, if a stone fell upon him from the roof. But in actions of reparation the main inquiry is always into the cause of the occurrence. When the cause is an independent act of a servant unconnected with his work the conditions upon which the master can be held liable for that cause are not satisfied.
Accordingly, the defenders are entitled to absolvitor. I shall therefore repel the pleas in law for the pursuer, and I shall sustain the third plea in law for the defenders.
No argument was addressed to me by counsel for the defenders in support of their fourth plea in law, which is based upon section 102 (8) of the Coal Mines Act, 1911. As I have held that the defenders were not in breach of any of the duties imposed upon them by the statute, it is unnecessary to consider this plea.
[His Lordship then dealt with the question of damages, and continued]—While one must always have sympathy for men who have been injured in a coal mine, I feel bound to say that, in my opinion, the claim for damages in the present case is quite unfounded, and has been put forward upon false grounds as a result of considerable concert between the pursuer and his witnesses as to the line of evidence which they should adopt. I was surprised to learn that they attended a joint meeting in the Turf Hotel, Blackburn, during the preparation of the action. When the witnesses were cross-examined about the object of that meeting and the matters which were discussed there, they were reluctant and hesitant in their answers. It appeared to me, however, to emerge with sufficient clearness that there was a general discussion about the conditions in their section of the colliery, and the circumstances of the accident. I should have thought that the un-wisdom of such a proceeding, to put it no higher, was obvious, since the credibility of a witness is bound to be affected by such collaboration as to the evidence which each is to give. It makes it difficult for any Court to decide to what extent the evidence given by the witness is the result of his own experience and observation, and to what extent it is due to external suggestion. This unfortunate occurrence is but one of several matters disclosed in the proof in this action which led me, unhesitatingly, to prefer the evidence for the defenders to that adduced by the pursuer.
The pursuer reclaimed, and the case was heard before the First Division on 15th July 1958 and following days.
At advising on 25th July 1958,—
The pit in question is one where safety lamps were obligatory owing to the risk of the presence of firedamp. Naked lights therefore were prohibited. It was admitted in the arguments before us that the ignition of firedamp was due to a naked light. The Lord Ordinary has held that this naked light came from the striking of a match by one of the men from the section in question who was engaged in lighting a cigarette. To have brought matches or cigarettes into this section was a breach of section 35 of the Coal Mines Act, 1911, and to use a naked light there involved a contravention of section 32 of the same Act. The Lord Ordinary's conclusion that the naked light was a match used to light a cigarette is amply warranted in the evidence, and all the alternative explanations put forward in evidence to account for the naked light were either eliminated or disbelieved. The Lord Ordinary reached his conclusion on the weight and quality of the evidence, and I do not find it necessary to review it in detail. But the consequence is that the whole basis of the case on which the pursuers in this group of actions came into Court is destroyed, and their explanation of the ignition (a spark from a hammer) disproved. Indeed, the Lord Ordinary clearly formed a most unfavourable impression of the pursuer and the eye-witnesses he adduced to support him; he refers to their obvious embarrassment when faced up in cross-examination with the finding of cigarettes and matches by officials after the accident had occurred. Indeed, he informs us that, in his opinion, the present claims have been put forward upon false grounds as a result of considerable concert among the pursuers and their witnesses as to the line of evidence which they should adopt.
In these circumstances the pursuer gave up before us several of the grounds upon which he originally sought to make the defenders liable. Two grounds only were argued, in respect of either of which it was maintained that the defenders were liable in damages. Firstly, it was said the defenders were in breach of their obligations regarding ventilation under section 29 (1) of the Coal Mines Act, 1911.Secondly, it was said that, in any event, the defenders were vicariously responsible for the negligence or breach of duty of the unidentified workman who struck the match which ignited the firedamp and so caused the injuries to his fellow workmen.
Before dealing with these two grounds upon which it is sought to bring home liability to the defenders, it is necessary to consider first of all the general layout of this part of the mine.
[His Lordship gave the narrative quoted supra, and continued]—So much for the general background of this case. The first question is whether there is any evidence of contraband material in the shape of matches or cigarettes in the vicinity of where the ignition took place.
It is clearly proved that on an examination very shortly after the accident a spent match which had only just been ignited and then extinguished was found close beside the pack opposite Hynd's stint, and one foot to eighteen inches back from its front edge. Moreover a small tin box containing four unused cigarettes and six unused matches was also found near this spent match and some six or seven feet back into the already excavated area from the conveyor belt. The box was lying some seven feet away from the pack in question. Evidence on these matters was given by responsible officials whom the Lord Ordinary accepted, and their evidence is not controverted.
The next point which the Lord Ordinary held proved, and which, in my opinion, is amply demonstrated on the evidence, is that the spent match and the tin containing cigarettes were both in the waste where no workman had any right to be. The waste is defined by the Coal Mines (Support of Roof and Sides) General Regulations, 1947, as "the space outside any face working, road or road head and not occupied by packs, from which the coal or other material has been extracted." Face working in this connexion and under these Regulations means "in relation to a face at which supports are systematically withdrawn, all that part of the mine between the face and the front line of the packs (if any) or the last row of supports for the time being maintained, whichever is the farther from the face." In the present case, therefore, the face working extends back from the face to the front line of the packs. Everything behind that line and between the packs is the waste.
In the course of the argument before us it was maintained for the pursuer that this definition of face working did not apply because in the working in question supports were not systematically removed, and that the face working according to another part of the definition extended further back from the face than the front of the packs. But I have found it unnecessary to consider this argument in detail. It was never put to any of the witnesses, and it is obviously an afterthought. It is based on certain inferences and measurements made by counsel on a plan, No. 84, which was never proved in evidence and was not meant to do more than give a pictorial representation of the locus of the accident. But the conclusive answer to it is that there was clear and unequivocal evidence from several of the witnesses that props were systematically withdrawn and the props behind the line of the front of the packs were not maintained. The last row of supports or props which were being maintained in the vicinity of the place where the ignition occurred was immediately on the coal face side of the front of the pack, and between the front of the pack and the conveyor. It follows, therefore, that the spent match was within the waste as that term is used in the Act and the Regulations, and the tin box of cigarettes and unused matches was well within it. To have reached the tin box and extracted a cigarette and a match a workman must have penetrated a substantial distance into the waste and into unsupported ground within the meaning of the statutory provisions to which I have referred.
But this matter does not rest on a mere interpretation of the statutory provisions by the Court. There is a substantial body of evidence from experienced men who all so describe the places where these articles were found. Their description is not challenged in cross-examination. [His Lordship referred to the evidence, and continued]—There was therefore ample evidence to show that someone had entered the forbidden area of the waste and had gone into unsupported ground for some distance, where he had no right to be, to get a cigarette and to smoke it. There is no evidence at all that any of the men were carrying cigarettes on them. This conclusion is confirmed by the fact that, according to Duncan, an area mechanisation engineer employed by the defenders, after the accident he saw signs in the dust in the waste of one or perhaps two men having sat on the pavement up against the side of the pack in question just beside the spent match.
But the matter does not end there. The evidence led at the proof clearly leads to the conclusion that the ignition started inside the waste where the man had gone to get his smoke. The position in which the spent match and the cigarette box were found is of course not conclusive as to the place where the match was lit. It is conceivable though unlikely that the workman had entered the waste to get a cigarette out of the box and had stepped back into the roadway, lit his cigarette there and thrown the match into the waste. But there is other evidence in the case which definitely points to the waste itself as being the place where the match was ignited.
In the first place, the evidence shows that there was no history of firedamp being found in any appreciable quantities at the face for months before the accident. As the manager said, the air volume measurements and the percentage of firedamp found in the section gave no cause for any apprehension and showed nothing abnormal. Moreover, on the day of the accident no gas was found at all in the workings at the face when the tests were made shortly before the accident by Stewart and by Heggie the shot firer; and it is established that after the accident no gas at all was found in the vicinity of the face. As the defenders' experts Mr Bell and Professor M'Adam said, this makes it virtually impossible for any accumulation of gas to have existed in the roadway at the face prior to the ignition, or for there to have been any continuous feeder from which gas was seeping through the strata into that roadway from the face or from the waste.
On the other hand, however, there was, of course, no ventilation in the waste, and it is just the kind of place where, with the gradual settlement and movement of the metals, firedamp would be found and would accumulate over a period of time. For the roof fractures as it settles and allows gas to escape. All these factors point to the waste and not the roadway as the more likely source of the gas, and the defenders' experts all definitely affirm this to be so. [His Lordship referred to the evidence, and continued]—In the light of this body of evidence there was, in my opinion, ample warrant for the conclusion that the ignition resulted from the attempted lighting of a cigarette with a match in the waste, to which one of the workmen had retired when the conveyor was temporarily stopped to enable repairs to be done on the main gate conveyor. There is indeed no evidence of any importance for any counter theory.
The next question is whether this accident was caused by the fault or breach of duty of the defenders. The first ground upon which it is alleged that we should so find is that the defenders were in breach of section 29 (1) of the Coal Mines Act, 1911. This subsection requires, inter alia, that "an adequate amount of ventilation shall be constantly produced in every mine to dilute and render harmless inflammable and noxious gases to such an extent that all shafts, roads, levels, stables, and workings of the mine shall be in a fit state for working and passing therein." This subsection, however, does not impose any duty upon the management to ventilate the waste, in which no stripper had any right or duty to be. If, therefore, the ignition took place in the waste, section 29 (1) has no application to it, and the case on ventilation fails.
I am confirmed in this conclusion by the fact that no case is made on: record by the pursuer of any failure to ventilate the waste in terms of section 29 (1). The only case made by the pursuer on ventilation is a case of breach of the subsection in respect of a failure to ventilate the face. His case was that the ignition took place at the face. The defenders were never required in evidence to deal with any other case on ventilation and no one suggests that ventilation in the working road, however adequate, could remove or affect accumulations of gas in the waste. Section 29 (1) therefore disappears from this case and I find it unnecessary to consider the arguments presented to us as to the extent of the obligations in regard to ventilating roads which are imposed by section 29 (1). For they clearly can have nothing to do with this present case.
It was, however, argued to us for the pursuer that the ignition in the present case, at the worst for the pursuer, took place on the very fringe of the waste, and that the obligations regarding ventilation imposed by section 29 (1), though in terms related to roads and workings, necessarily applied also to areas contiguous thereto. The section therefore applied to the site of the ignition in the present case.
The contention is an obvious afterthought which was not developed in the course of the evidence, nor is it raised in the pleadings. It seems to me that it would be a dangerous and uncertain obligation to impose on the defenders, for it would be quite impossible to lay down any criterion for the distance to which the ventilation required to be carried into the waste. The primary purpose of the stream of ventilation is, as the evidence shows, to remove gas feeding into the face working. The existence of such gas prior to the ignition is negatived in the present case. It would obviously be a major and novel extension of this obligation if the air current also requires to be led into and out of the openings into the waste between each of the packs. There is certainly no warrant in any of the evidence for such a step being considered either usual or necessary. Indeed, the introduction in the 1947 Regulations of a precise definition of where the boundary of the waste begins and the workings end may very well have had as one of its objects the precise limitation of the sphere of the ventilation obligations in section 29 (1).
The pursuer's argument was based upon two decisions which he contended determined the matter in his favour. Both these decisions, however, were pronounced before the 1947 Regulations became law and would not, in any event, now be correct, in so far as they require ventilation of an area outside the actual face working as defined in the Regulations. But apart from this aspect of the matter, the cases do not, in my opinion, warrant the proposition for which they are invoked. The first case is Brough v. Homfray . This case, which was concerned with the interpretation of a section in an earlier Act corresponding to section 29 of the Coal Mines Act, 1911,did not require that areas contiguous to a working place should be made safe, but only required mines to be ventilated to such an extent as to make the working places and travelling roads safe for ordinary use—see Lord Blackburn at p. 777. This was held to mean that the ventilation must be such as to prevent contiguous areas spilling gas into the working places. In the present case, however, that latter obligation was not breached, and the decision does not therefore avail the pursuer. The ignition took place not as a result of a spillage of gas into an improperly ventilated working place, but as a result of a naked light igniting an accumulation of gas in the waste which prior to the ignition had not seeped out of the waste at all. This case, therefore, does not assist the pursuer.
The other case upon which the pursuer relied in this connexion was Atkinson v. Morgan [1915] 3 KB 23 , and in particular upon a passage in the Lord Chief Justice's opinion, at p. 30, in which he referred to Brough v. Homfray, and said:
"The justices there thought that a certain section (which was in substantially the same terms as section 29 of the present Act) was sufficiently complied with if the ventilation was maintained in the working places, but the Court refused so to restrict its meaning, and held that it extended to those parts of the mine which were contiguous to working places as well as to the working places themselves."
The case of Atkinson was concerned with a large cavity in the roof of a roadway in a mine. If the Lord Chief Justice's reference to contiguous parts relates to cavities in the roof of a working such as were being considered in that case, then the observation is unexceptionable, but is of no help to the pursuer in the present case. If, on the other hand, the passage in question is to be given a wider meaning, and is to be regarded as imposing an obligation to ventilate areas contiguous to working roads, it is not an accurate description of what was decided in Broughand is, in my opinion, unsound. The definition of "waste" in the Regulations of 1947 has in any event made such an extended obligation no longer the law.
In these circumstances, in my opinion, it has been demonstrated that breach of section 29 of the Coal Mines Act, 1911, was not the cause of this accident. It only remains to consider whether the pursuer can substantiate the alternative ground of liability—namely, that the defenders are vicariously responsible for the illegal smoking in the waste of this pit by one of the men employed there, with the result that he ignited a pocket of gas which had gathered in the waste.
In the light of the prevalence of this criminal type of conduct in many pits today, both sides represented to us that this raised an important question of principle. While on the one hand it may seem unfair that an injured man should be deprived of his damages from his employer because of the illegal conduct of a fellow servant, such damages are in law only due if the employer is vicariously liable for the illegal conduct of that fellow servant. And it would be surprising if a miner who has quite deliberately defied two express prohibitions in the Coal Mines Act, regarding contraband goods and naked lights, should none the less be entitled to damages for the resulting injuries. For in this instance it is an inescapable conclusion that one of the pursuers in this group of actions ignited the fatal match, and all combined to deny the existence of contraband in the section, and gave an account of what they were doing which the Lord Ordinary disbelieved. The issue has become of much more importance in the law now that the defence of fellow servant has been abolished.
Vicarious responsibility for the act of a servant will only attach to the master if the act of the servant is done within the scope of the employment. It is probably not possible and it is certainly inadvisable to endeavour to lay down an exhaustive definition of what falls within the scope of the employment. Each case must depend to a considerable extent on its particular facts. But, in the decisions, four different types of situation have been envisaged as guides to the solution of this problem. In the first place, if the master actually authorised the particular act, he is clearly liable for it. Secondly, where the workman does some work which he is appointed to do, but does it in a way which his master has not authorised and would not have authorised had he known of it, the master is nevertheless still responsible, for the servant's act is still within the scope of his employment. On the other hand, in the third place, if the servant is employed only to do a particular work or a particular class of work, and he does something outside the scope of that work, the master is not responsible for any mischief the servant may do to a third party. Lastly, if the servant uses his master's time or his master's place or his master's tools for his own purposes, the master is not responsible—Goh Choon Seng v. Lee Kim Soo, per Lord Phillimore at p. 554, approved in Canadian Pacific Railway Co. v. Lockhart, per Lord Thankerton at p. 600.
It is often difficult in the particular case to distinguish between the second and the third of these situations, but the criterion is whether the act which is unauthorised is so connected with acts which have been authorised that it may be regarded as a mode—although an improper mode—of doing the authorised act, as distinct from constituting an independent act for which the master would not be liable—Salmond on Torts, (9th ed.) pp. 113, 114; approved by Lord Thankerton in Canadian Pacific Railway Co. v. Lockhart, at p. 599.
From this it would follow that where the limits of the duty of the servant are not precisely denned it is easier to treat the act of the servant as a mode of doing his work, rather than to treat it as an independent act for which the master is not responsible—London County Council v. Cattermoles (Garages) Limited, per Evershed, M.R., at p. 585.
The matter is further illustrated by decisions regarding smoking during working hours. In two of these cases the workman was actually doing work he had been instructed to do, but while doing it he negligently lit a cigarette. This was regarded as an unauthorised mode of doing his work for which none the less the employer was liable. In Jefferson v. Derbyshire Farmers, Limited, a youth was employed in a garage and, in the course of carrying out his master's orders to fill tins from a fifty gallon benzol drum, he lit a cigarette and ignited the benzol. As Atkin, L.J., put it (at p. 289):
"He was authorised to draw the benzol, and he was doing that act negligently, for the evidence shows that tapping the drum and lighting the cigarette were contemporaneous acts. He was therefore guilty of a negligent act within the scope of his employment."
In a similar case—Century Insurance Co. v. Northern Ireland Road Transport Board, where the employer was held liable for the negligence of an employee who struck a match while engaged in transferring petrol from a lorry to an underground tank, Lord Chancellor Simon said of the employee:
"Admittedly, he was serving his master when he put the nozzle into the tank and turned on the tap. Admittedly, he would be serving his master when he turned off the tap and withdrew the nozzle from the tank. In the interval, spirit was flowing from the tanker to the tank, and this was the very delivery which the respondents were required under their contract to effect. Davison's duty was to watch over the delivery of the spirit into the tank … He was presumably close to the apparatus, and his negligence in starting smoking and in throwing away a lighted match at that moment is plainly negligence in the discharge of the duties on which he was employed by the respondents."
On the other hand, if the workman leaves his place of work and goes to a place where he is not entitled to go and where indeed he is prohibited from going, any accident he sustains will be outside the scope of his employment—Gordon v. Fife Coal Co., reported sub nomine Donnelly v. Moore & Co., per Lord Chancellor Birkenhead at p. 47, overruling Conway v. Pumpherston Oil Co. The reason is that he was not doing a permitted act carelessly—he was doing an act outside his employment.
The pursuer founded upon certain observations by Lord Skerrington in Robertson v. Woodilee Coal and Coke Co., at p. 545, to the effect that a workman might still be in the course of his employment if, while resting after his work, he lighted his pipe. The observations to this effect were obiter for the case was decided on another ground and, although in the House of Lords Lord Cave expressly adopted Lord Skerrington's ratio decidendi,it is not without significance that he does not expressly adopt the observations in question. Clearly, however, the observations cannot be treated as affirming a general proposition that smoking is always incidental to the workman's employment.
Applying the above considerations to the circumstances of the present case, I am of opinion that the facts disclosed at the proof amply warranted the conclusion to which the Lord Ordinary came, and with which I agree. The employee who caused the ignition had left his place of work between the face and the conveyor, and had crossed over the conveyor and entered the waste. It is true that at the time the conveyor was temporarily stopped for repair to a belt, but it might have started up at any moment. There was no evidence that the men at the face were resting or inactive. On the contrary, they were strippers whose duty it was to strip the coal. Their evidence was that they were all busily engaged in erecting or tightening props. Moreover, in going into the waste the employee was going to a place where he had no right or duty to go, and where, as Professor Poole, the pursuer's expert witness, said, it was improper and criminal to be. There was no evidence at all to suggest that in going in to the waste the man was doing anything in any way connected with the work he was employed to do. Further, it is established that he left his working place and went in there purely for his own purposes and for his own pleasure, i.e., to smoke a cigarette, and after going into the waste for this purpose he took possession of a cigarette and a match which had been placed in the waste contrary to section 35 of the Coal Mines Act, 1911, and ignited the latter in order to smoke the former contrary to section 32 of the Act.
His conduct, in such circumstances, I cannot regard as an unauthorised mode of doing the work he was employed to do. It seems to me clearly to be something which took him outside the scope of his employment. If so, the defenders are not in law responsible for the consequences of his act. It may be that some of the above matters are in themselves sufficient to lead to this conclusion. But I find it to be unnecessary to decide this case on any narrow ground. The accumulation of factors to which I have referred seems to me to lead inevitably to the conclusion to which the Lord Ordinary came. In my opinion, that conclusion was correct, and the reclaiming motion should be refused.
After a lengthy proof the Lord Ordinary assoilzied the defenders, holding that none of the grounds of fault alleged by the pursuers had been established. In this reclaiming motion the pursuers have maintained that the Lord Ordinary was in error in negativing two of the grounds of fault relied on by them, viz., (a) breach by the defenders of their statutory duty of ventilation, and (b) the vicarious liability of the defenders as employers of the worker who struck the match, and whose act, although forbidden, should properly be held to have been committed within the sphere of his employment. The facts established by the evidence, as bearing upon these two conclusions, have been fully narrated and weighed by the Lord Ordinary and have been rehearsed in the opinion of your Lordship in the chair. Like your Lordship, I have found no reason to differ from the Lord Ordinary in respect of the essential facts which he found proved,
It is clearly of importance to determine, first of all, at what point in the section the match which caused the explosion was lighted. On, record the pursuers state (Cond. 2) that the explosion originated in the face near where the stripper Kirby was working, and was caused by a spark emanating from a steel support in the face from the impact of a hammer; and they admit an averment made by the defenders to the effect that before the explosion occurred the strippers were in. or about their stints at the face. In answer, the defenders deny that the explosion originated in the face, and they explain that a very small, mildly explosive, mixture of firedamp and air had collected near the roof "on the waste side of the conveyor between the stints of Kirby and Hinds," and that the explosion occurred when one of the workmen in the section recklessly and criminally lit a match at the site of the explosive mixture. The defenders further aver that after the accident contraband, in the form of cigarettes and matches both spent and unspent, was found at or about the site of the explosion and nearby. In the course of the proof it was clearly established that the spent match whose flame must be presumed to have ignited the gas—on which there is now no controversy—was found at a point near the last pack on the waste side of the conveyor, at a distance of twelve to eighteen inches beyond the edge of the pack. Throughout the leading of the evidence for the pursuers, questions were put to the witnesses by the defenders, without objection, to elicit that the point at which the spent match was found was in the "waste" and in "unsupported" ground. It seems to me therefore, that there is no substance in the argument pressed upon us by the pursuers' counsel that the defenders have no record giving fair notice of the case to be made to the effect that the worker who lit the match was in the waste. I am satisfied that sufficient notice is given by the defenders' pleadings and that, in any event, no prejudice whatever was suffered by the pursuers in respect of the case sought to be made by the defenders in evidence to the effect that the site of the ignition of the gas was in the waste. In scrutinising the oral testimony directed to the issue whether it was in the waste that the ignition set off by the spent match took place, the Lord Ordinary has found that the witnesses adduced for the pursuers, apart from Professor Poole, the expert, cannot, in matters in which their own interest is concerned, be accepted as truthful or credible witnesses. As a Court of review we are, as the pursuers' counsel conceded, entitled therefore to have regard only to the relevant evidence led by the defenders on that issue, plus the testimony, so far as relevant, of the pursuers' witness Professor Poole. The Lord Ordinary's opinion was (a) that the pursuers had failed to prove that the place of ignition of the gas was at the face; and (b) that the defenders had proved that the ignition took place in the waste, that is, in the unsupported ground on the side of the conveyor belt away from the face.
"Waste" is defined as "the space outside any face working, road or roadhead and not occupied by packs, from which the coal or other material has been extracted"; and "face working" is defined as the space "between the face and the front line of the packs (if any) or the last row of supports for the time being maintained, whichever is the farther from the face; and means, in relation to a face at which supports are not systematically withdrawn, all that part of the mine between the face and a line parallel to it and twelve feet distant from it." See Coal Mines (Support of Roof and Sides) General Regulations, 1947. The weight of the relevant evidence appears to me to establish with reasonable certainty that the position of the spent match—being the point at which ignition occurred—was not in the space between the face and the front line of the adjacent pack. There still remains the question whether on the evidence the pursuers have established that on a balance of probability the place of ignition was between the face and the last row of supports for the time being maintained. In the opinion delivered by your Lordship in the chair the adminicles of evidence relevant to that question have been reviewed and commented upon in terms with which I am in substantial agreement, and which it is unnecessary to rehearse. Weighing that evidence I am satisfied—as was the Lord Ordinary—that on a balance of probability it does not support the pursuers' submission that the site of the ignition of the gas was in the face and not in the waste. Moreover, it is proved that the face was one in relation to which supports were systematically withdrawn, and that accordingly the final clause in the definition has no application. It is accordingly in that state of fact that the alleged breach of the defenders' statutory duty of ventilation falls to be considered.
The relevant words of section 29 (1) of the Coal Mines Act, 1911, imposing the duty of ventilation on the defenders are as follows:—
"An adequate amount of ventilation shall be constantly produced in every mine to dilute and render harmless inflammable and noxious gases to such an extent that all shafts, roads, levels, stables, and workings of the mine shall be in a fit state for working and passing therein, and in particular that the intake airways up to within one hundred yards of the first working-place at the working-face which the air enters shall be normally kept free from inflammable gas."
While the obligation imposed by section 29 (1) is expressed in absolute terms, it is necessary to have regard to the content of the obligation so imposed. It appears to me that the requirements of the subsection are, broadly stated, to produce constantly (and not variably) an amount of ventilation adequate to dilute and render harmless inflammable and noxious gases sufficiently to cause the roads and workings to be in a fit state for working and passing therein, and sufficient normally to keep the intake airways free from inflammable gas. It was maintained by the pursuers that the evidence relevant to the issue of adequate ventilation established on a balance of probability that the explosion was caused by a temporary accumulation of gas at the face becoming ignited by a naked light, and that it could have been avoided if adequate ventilation had been provided by the defenders in compliance with the requirement of the statutory provision. The evidence bearing on that issue has been very fully reviewed and commented upon by the Lord Ordinary in respect both of its substance and its credibility. It includes a substantial body of cogent evidence affirming the absence of gas at the working place both before and after the accident; and that view is confirmed by the testimony of a number of workers who deponed that in their opinion the ventilation provided was adequate. Having scrutinised the evidence as a whole, I am of opinion that the ventilation is proved to have been sufficient to make the state of the roads and workings fit for work and passage; and that the intake airways leading to the working places at the face were kept and were, prior to the explosion, free from inflammable gas. In so holding, I regard the waste as being unsupported ground which is not within the category of roads and workings to which the requirements of the statutory duty of ventilation apply. It is clearly proved that during the working shift in which the explosion occurred (the production shift) no workman had any duty to go into the waste in connexion with his work; and it was understood not only that no workman had any right to enter the waste, but also that it was dangerous and foolish to do so seeing that all the pursuers were aware that small pockets of gas may occasionally be found there after supports have been withdrawn. It was argued for the pursuers, however, that for purposes of ventilation a working place includes "so much of the mine as is sufficiently contiguous to a working place as that it may operate upon a working place." Those words were used by Cockburn, C.J., in his opinion in the case of Brough v. Homfray, which related to a prosecution against a mine manager for breach of the provisions of section 10, rule 1, of the Mines Inspection Act, 1860. The rule in question imposed a duty of adequate ventilation in terms similar to the opening clause of section 29 (1) of the 1911 Act. The facts upon which the decision of the Court turned are complicated, but the ratio of the decision is expressed in the opinion of the Court that "it is not enough to ventilate the working places and travelling roads; but that so much of the mine must be kept so ventilated as to render the working places and travelling roads safe." In the later case of Atkinson v. Morgan, the circumstances were, briefly, that a large cavity had been caused in the roof of a mine above a road along which men had to pass, to get to and from working places; and a temporary timber roofing was erected to prevent rubbish falling on to the floor from the cavity. That roofing partially shut off the ventilating current from the cavity, and after gas had been discovered in the cavity men were permitted to go to work along the road beneath the cavity. Shortly afterwards the men were withdrawn while steps were taken to direct the ventilation into the cavity to clear away the gas. In a prosecution against the manager for breach of section 29 (1), the justices dismissed the information although they found that an adequate amount of ventilation had not been thoroughly disseminated in the cavity. In an appeal heard by a Court of three Judges presided over by Lord Reading, C.J., the ratio of Brough'scase was applied and it was held that the "shafts, roads, levels, stables, and workings of the mine" enumerated in section 29 (1) of the 1911 Act include portions of the mine contiguous thereto although not coming strictly within any of these denominations. The case was remitted to the justices to convict. Founding on the ratio of those two decisions the pursuers maintained that if the Lord Ordinary was right in holding that the ignition of the gas took place inside the waste, it took place at a point not more than two feet or thereby from the supported ground, and therefore at a point sufficiently contiguous to a working place to require ventilation in order to render that working place safe. In my opinion, the facts in each of those two cases are clearly distinguishable from the circumstances of the present case, and the ratio of the decisions does not support the pursuers' contention in the present case. Moreover, the case of Yelland v. Powell Duffryn Associated Collieries, Limited, quoted by the Lord Ordinary, appears to me to be adverse to the pursuers' contention on this topic. In the result, I consider that the pursuers have failed to prove a breach of section 29 (1) as having been the cause of the pursuers' injuries.
There remains for consideration the question whether in any event the workman who ignited the match and set off the explosion was acting within the scope of his employment so as to render the defenders vicariously liable for his act. The various cases cited during the argument, of which most are referred to by the Lord Ordinary, furnish illustrations of the principles by which such questions fall to be solved; and it seems clear that each case depends upon its own particular facts and circumstances. In so far as a general principle may be formulated to serve as a guide to the tribunal in arriving at the proper decision in a case like the present, I venture to cite a statement in Salmond on Torts, (9th ed.) at p. 95. The statement was approved in the Privy Council case of Canadian Pacific Railway Co. v. Lockhart, the opinion of the Board being delivered by Lord Thankerton (at p. 599). The statement is as follows:—
"A master … is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes—although improper modes—of doing them. In other words, a master is responsible not merely for what he authorises his servant to do, but also for the way in which he does it … On the other hand, if the unauthorised and wrongful act of the servant is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside of it."
The evidence in the present case reveals these features viz.:—(1) Whoever ignited the match was in a place (the waste) where he had no right or duty to be. (2) There is no evidence that such person was doing any job connected with or incidental to the work which he was employed to do. (3) The act which he did was done for his own private purposes. (4) That act was one which was prohibited by statute and rendered him liable to prosecution (sections 32 and 35 of the 1911 Act).
It appears to me that the argument submitted by the pursuers on this topic has not succeeded in displacing the result arrived at by the Lord Ordinary, supported, as it is, by reasoning with which I agree, and in which he has fully examined and commented on the numerous decisions which were relied upon by the parties respectively. I agree also with the views expressed in the opinion of your Lordship in the chair in arriving at the same conclusion, viz., that facts and circumstances have not been proved sufficient to establish, on a balance of probability, that the independent and criminally wrongful act of the culprit, unconnected with his work, committed for his own purposes, in a place in which he was not authorised to be, was done in the course of his employment so as to render the defenders vicariously liable to the pursuers. I accordingly agree that this reclaiming motion fails.
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