United Kingdom House of Lords Decisions

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Cite as: [1914] UKHL 496, 51 ScotLR 496

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SCOTTISH_SLR_House_of_Lords

Page: 496↓

House of Lords.

Tuesday, April 28. 1914.

(Before Lord Dunedin, Lord Kinnear, Lord Atkinson, Lord Shaw, and Lord Parmoor.)

51 SLR 496

(In the Court of Session, February 21, 1913, 50 S.L.R. 455, 1913 S.C. 662.)

Smith

v.

Fife Coal Company, Limited.

Subject_Master and Servant — Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) — Accident — “Arising Out of and in the Course of the Employment” — Mine.
Facts:

Under statutory rules a shot in a mine should have been fired in the following way:—The miner's duty was to insert and stem the detonator which was given to him by a duly appointed official called the shot-firer. The shot-firer's duty it then was to attach the end of the cable to the detonator, thereafter to couple up the other end of the cable, which had to be at least 20 yards in length, with
Page: 497↓
the electrical apparatus, having, however, before doing so seen that all persons in the vicinity had taken proper shelter.

A shot-firer was in the habit of getting the miners to attach the cable to the detonator. He handed a detonator and the end of the cable to a miner. The miner had inserted and stemmed the detonator and attached the end of the cable to it, and had turned round and was just going away for shelter when the charge was fired. The miner was seriously injured. The arbiter found that the accident arose out of the employment, and was not to be attributed to the miner having arrogated to himself duties outwith the sphere of his employment.

Held ( rev. judgment of the Second Division) that the arbiter's finding was right.

Kerr v. William Baird & Company, Limited, 1911 S.C. 701, 48 S.L.R. 646, distinguished.

Headnote:

This case is reported ante ut supra.

The claimant Smith appealed to the House of Lords.

At delivering judgment—

Judgment:

Lord Dunedin—The facts as found by the arbitrator out of which this case arises are as follow—The appellant was a miner in the employment of the respondents. He worked at a working-face where from time to time blasting by means of a shot was necessary. On these occasions the proper procedure is as follows—The miner bores a hole, puts into it a detonator which is handed to him by the shot-firer—a duly appointed official—and stems or packs the detonator in the hole. The shot-firer then connects a cable with the detonator wire, which has been left protruding from the stemmed hole. Then proceeding to the other end of the cable, which is at least 20 yards in length, he couples the cable to an electric battery, and then, after seeing that all persons in the vicinity have taken proper shelter, he fires the shot by turning the handle of the electric apparatus.

What actually happened was this. The shot-firer, a man named Howard, in contravention of the regulations, permitted the appellant to connect the detonator wire with the cable. Thereafter, while the appellant was in the act of retiring from the face, Howard, deceived by a voice calling out, “All right, fire away,” which voice was the voice of another man and not of the appellant, and without ocularly satisfying himself that the appellant was in safety, fired the shot. The result was that the appellant, who had not yet reached a place of safety, was severely injured.

In the circumstances the arbitrator found that the appellant had been injured by an accident arising out of and in the course of his employment.

An appeal was taken, and the learned Judges of the Second Division recalled the finding of the arbitrator.

I do not think it necessary to make any remarks of a general character upon the phrase in the statute “arising out of the employment,” because I did so with the approval of other members of your Lordships' House in the very recent case of Plumb, ( 1914, A.C. 62, at pp. 65–70) and I do not wish to repeat what I then said. Nor do I think that there was any divergence of opinion in the judgments of the learned Judges in this case from the law as then laid down. Taking the phrase as a test and not as a definition, it may, I think, be conceded that if the accident was due to the man arrogating to himself duties which he was not called on to perform and which he had no right to perform, then he was acting out of the sphere of his employment, and the injury by accident did not arise out of his employment. The sole question is, was this so in this case? or in other words, what is the true view of the facts?

I regret that I cannot come to the same conclusion as that come to by the learned Judges.

I think I can best make my view clear by taking the case of Kerr v. Baird (48 S.L.R. 646, 1911 S.C. 701) and contrasting it with this. In that case the miner arranged a shot and fired it entirely by himself—I mean without the presence or help of the shot-firer at any stage of the proceeding. It was held rightly that the accident was due to the action of the man, and that such action consisted in taking upon himself duties which he had no right to perform. Here, on the contrary, the miner did not arrange and fire the shot. One part of the composite action was his duty to insert and stem the detonator—and that he did. The next step—the connecting of the detonator wire to the cable—he had no business to do, and in doing it he did something which was not in the sphere of his employment. But two more stages are necessary before we arrive at the explosion which causes the injury and forms the accident, viz., the connecting of the cable to the battery and the putting the battery into efficient action by the turning of the handle, and both these stages are done by the shot-firer. In the circumstances I cannot bring myself to see that the efficient cause of the accident was connected with the arrogation of unauthorised duty by the miner.

It is true that no explosion could have taken place unless the cable had been connected with the detonator. But that is only a remote cause, sine qua non, and one in which the relation of the appellant to the act as distinguished from any other person is immaterial.

It seems to me that the question of fact which has got to be answered is this—Did the injury to the appellant arise out of the illicit and unauthorised action of the appellant? The answer to that, it seems to me, so far as the action of the appellant consisted in coupling the wire, is no. The injury arose from the premature explosion, and that premature explosion was caused by the action of the shot-firer.

The learned counsel for the respondents felt this difficulty and urged strenuously that the injury by the explosion to the appellant was really due to his, so to speak, lingering

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in the place of danger, and that this lingering was due to the fact that he had taken upon himself the duty of connecting the wire to the cable. If he were right on the facts, I think his argument would be sound. But the facts are, in my judgment, as found by the arbitrator, against him. He was, I think, under the regulation, quite entitled to stay in the vicinity of his working-place till he was cleared out by the action of the shot-firer. As it was, he was in the act of leaving—an act which could only have been protracted for a few seconds by the connecting of the cable—and the whole mischief was caused by the premature action of the shotfirer.

I am therefore of opinion that the view of the facts taken by the arbitrator was correct, and that his finding should be restored.

Lord Atkinson—I agree.

Lord Shaw—I concur. I have had the satisfaction of perusing the judgment which has just been read by my noble and learned friend Lord Dunedin and it exactly expresses my own view.

Lord Parmoor—In an arbitration under the Workmen's Compensation Act 1906 the arbitrator has found that the appellant is entitled to compensation in respect of injury resulting from an accident arising out of and in course of his employment with the respondents. The Second Division of the Court of Session, upon a stated case, has negatived the appellant's right to hold the award of the arbitrator. The question of law for decision is whether there was evidence before the arbitrator upon which it could be competently found that the appellant sustained an accident arising out of and in the course of his employment. In answering this question it is necessary, in the first place, to ascertain what are the facts as stated or found by the arbitrator, and in the second place, to determine whether to the facts so stated or so found the arbitrator has rightly applied the provisions of the Workmen's Compensation Act.

The appellant was a miner in the employ of the respondents who suffered serious and permanent injury from the firing of a shot in the mine. When it was intended to fire a shot in the mine, the appellant as part of his ordinary employment would bore, charge, and stem the hole. In the present case he further attached the cable to the charge. In so doing he clearly acted outside the sphere of his employment, and in direct contravention of an Order of the 22nd February 1910 made by the Secretary of State for the Home Department under section 6 of the Coal Mines Act 1910. Under this Order a shot-firer had been properly appointed, whose duty it was to attach the cable to the charge, and to do so before coupling the cable to the firing apparatus. The shot-firer did not attach the cable to the charge, and before the cable was attached to the charge it had been coupled to the firing apparatus. There is a further provision in the Order that the shot-firer before firing ashot shall see that all persons in the vicinity have taken proper shelter. In this instance the shot-firer heard a shout, “Right, fire away!” which he thought came from the appellant, but was in fact from a neighbouring miner, and addressed to that miner's drawer, who had informed him that a shot was to be fired in the vicinity. The shot was then fired. The appellant had not taken proper shelter and was seriously injured.

The arbitrator has found on the evidence before him that the cause of the accident was the connecting of the cable to the battery by the shot-firer before the cable was connected to the charge and before seeing that all persons in the vicinity had taken proper shelter, and firing the shot without ascertaining that all persons in the vicinity had taken proper shelter, and that at the time when the shot was fired the appellant was entitled to be at his working-place, and was proceeding to go to a place of safety.

The further consideration is, whether on this conclusion of fact it was competent for the arbitrator to award compensation under the Workmen's Compensation Act 1906, or, in other words, whether it was competent for the arbitrator to find that when the appellant suffered the injury on which he based his claim to compensation, he was doing some act arising out of or in the course of his employment. It is not seriously denied that the accident happened in the course of the employment of the appellant as a miner by the respondents. The real argument urged on behalf of the respondents is that the accident did not arise out of the employment of the appellant as a miner. If, however, the finding of the arbitrator is accepted, that the appellant was injured from the firing of a shot while proceeding to a place of safety, it appears to be impossible to maintain that the accident which caused the injury did not arise out of and in the course of his employment as a miner, and no such argument was directly advanced.

The argument for the respondents, when closely considered, is in reality based on a criticism of the finding of the arbitrator. It is said that the appellant in attaching the cable to the charge was doing something which he was never employed to do and which he was prohibited from doing at all. No doubt this is so, and if the accident had happened while the appellant was engaged in work outside the sphere of his employment, and which he was prohibited from doing at all, it would not have been competent for the arbitrator to award compensation either on principle or without contravening the authority of decided cases. The answer is that the arbitrator has negatived any such conclusion on the evidence before him, and that this finding was within his competence.

In my opinion the question of law should be answered in the affirmative and the appeal allowed.

Lord Dunedin—My noble and learned friend Lord Kinnear desires me to say that he concurs in the judgment about to be pronounced.

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Their Lordships, with expenses, reversed the interlocutor appealed against and restored the arbiter's award.

Counsel:

Counsel for the Appellant (Claimant)—The Lord Advocate ( Munro, K.C.)— Hon. A. Shaw. Agents— Macbeth, Macbain, & Currie, Dunfermline— D. R. Tullo, S.S.C., Edinburgh— Walker, Son, & Field, London.

Counsel for the Respondents—The Solicitor-General ( Morison, K.C.)— H. W. Beveridge. Agents— W. T. Craig, Glasgow— Wallace & Begg, W.S., Edinburgh— Beveridge, Greig, & Company, London.
1914