United Kingdom House of Lords Decisions

The Sheriff-Substitute found that the accident arose in the course of and out of his employment and awarded compensation accordingly. The Second Division, on appeal, reversed the judgment of the arbiter and remitted to him to dismiss the claim. They proceeded on the authority of the case of Smith v. Archibald Russell, Limited, which had been decided by the First Division a week before, and two of the learned Judges confined their remarks to the statement that the case was ruled by that decision. Lord Salvesen said that apart from authority he would have reached the same conclusion.

There is no question but that the appellant was in the course of his employment. The question as to whether the accident arose out of his employment or not depends entirely on whether he did or did not act in contravention of a statutory rule. In the case of Plumb ( [1914] AC 62), in your Lordships' House, it was pointed out that prohibitions were of two classes—those that do and those that do not limit the scope of the employment. The case of Fife Coal Company v. Sharp ( [1921] 1 A.C. 329, reported sub nom. Fife Coal Company, Limited v. Colville and Others, 58 S.L.R. 85), also in your Lordships' House, settled that a prohibition of the first class was effected by the rule contained in paragraph 3 ( a), Explosives in Coal Mines Order, 1st September 1913, which applied to the pit in question, and is 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 argument of the appellant in this case turned entirely on the contention that in order to have a misfire in the sense of the Order you must first have ignition, and that here there was a finding that ignition had not taken place. In the case of Waddell ( 1912, 50 S.L.R. 29), in the Court of Session, under a rule of prohibition phrased “If a shot has been fired and does not explode,” I, sitting as Lord President, decided that to light under the rule meant to apply a light with a view to ignition, and did not infer a certioration that ignition had effectively taken place. The case of Smith v. Russell, (1921) 58 S.L.R. 284, which was followed by the Second Division in this case, was in the First Division. In that case, as here, there were two shots contiguous to each other prepared by the men who simultaneously applied light to the strums or fuses. The finding of the arbiter was—“The appellant applied his naked light to the end of the strum of his shot, but he believed that the strum had not been ignited. As, however, M'Cutcheon (who was the other man) had lit his he told the appellant it was time for them to retire to a place of safety.” I summarise what followed. They did retire, but the appellant returned within the forbidden time, his shot went off, and he was injured. The Court held that the accident did not arise out of his employment. The Lord President (Clyde), who delivered the judgment of the Court, after reading paragraph 2 ( e) of the Order, which provides that “The person firing the shot shall take shelter,” and also paragraph 3 ( a) already cited, says this—“A shot misses fire in the sense of the latter paragraph if it does not explode in the usual time. Firing the shot is the equivalent of igniting the fuse by applying a naked light in the language of the Order. But what does the latter expression imply? I think it means such application of the naked light to the fuse as in ordinary circumstances will cause the fuse to take light. If this is not its true meaning, the whole of the provisions of the Order on this topic become useless. For the ordinary interval between the ignition of the fuse and the explosion is short, and the Order would fail in its object if it permitted the worker to go on applying the naked light to the fuse until he was satisfied that he had successfully ignited it.” And he then proceeds to say that he thinks that is in accordance with what I said in Waddell's case.

I agree with the Lord President. I would only submit a remark by way of further observation. No man presumably is anxious to go and get blown up. It is only therefore in cases where he thinks that he has not successfully ignited the fuse that he returns to it at all. It is just to protect him against himself that the regulation says he shall not go back till after such an interval as will reasonably avoid the danger of a deferred explosion. Yet if the opposite argument is right, then this is a class of case to which the regulation cannot apply. This would be my opinion if there was no further authority, but there is further authority, to which I think it a pity that your Lordships' attention was not specially directed at the debate, though probably it is due to the fact that the case to be mentioned is reported embedded between two others. In the case of Fife Coal Company v. Sharp in your Lordships' House, already cited, the regulation said to be transgressed was the same as in this case. The facts were also the same in respect that two contiguous shots were laid by two different men, that both men attempted to light the fuses, and that on retirement only one shot went off, though on premaCure return the other shot exploded. I have looked at the appeal Case in that appeal, and I find that one finding of the arbiter was as follows:—“Each of the men then took his lamp from his cap for the purpose of applying a light to the end of his strum in order to fire his shot. Thomas Oanavan saw that his strum had caught fire and said to Colville that it was alight. The other said that he had not

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