United Kingdom House of Lords Decisions

Viscount Haldane—This is an appeal from the Second Division of the Court of Session in which, differing from the Sheriff-Substitute who was arbitrator under the Workmen's Compensation Act, the Court held that compensation should be given. The circumstances of the accident out of which the claim to compensation arose were these—Barkey the deceased workman was an oncost worker in the appellants' employment and he went down the appellants' pit with one Gillespie the night-shift foreman to assist the latter in clearing away gas. The operation is one in which the men engaged always work in pairs, and Barkey was bound under the terms of his engagement to go down with Gillespie if called upon. He did go down, and he and Gillespie were employed in driving out the gas. There is no doubt that when the accident happened, to which I will refer in a moment, they were in the course of their employment, and as they were driving out gas there is no doubt at all in my opinion that they were also engaged in employment out of which the accident which I am going to describe happened.

Their business being to drive out the gas they had to find out whether the gas was there. That business appears to have devolved upon Gillespie. Barkey had an electric lamp which does not detect whether gas is present or not, but Gillespie had an oil lamp which I presume requires a certain amount of oxygen, and the oxygen would be impeded if various noxious gases were present in the atmosphere and so might go out. Well now that is all we know. The rest comes from conjecture. There is no doubt an explosion took place which killed both men, and the explosion must have taken place near the face, and apparently the men were running from it. Barkey's electric lamp was not put out and remained burning, but Gillespie's lamp was found unscrewed, and unscrewed in such a way as looked as if it must have been done by the person handling it and done for the purpose of re-lighting it. Probably—and I think it is quite a legitimate inference in the circumstances—it had gone out and he was trying to re-light it improperly. He ought to have taken it to the place where the lamps were allowed to be re-lit, which meant his going to the surface again, and possibly to save himself trouble he did not do so. Anyhow there was an explosion, presumably due to an attempt made on his part to light the lamp. There was evidence that Gillespie had left his pipe and matches behind when he went down the shaft, but miners sometimes carry loose matches about with them, and it may be that he had loose matches. Anyhow there is no evidence to show that Barkey took down any box of matches or any matches at all, and although there was a tin box of matches found the day after near the scene of the explosion there is no evidence to show when that box got there or how it got there, and there is the evidence of Barkey's son that his father never had such a box.

Now under these circumstances the Sheriff-Substitute has said—“There is no doubt that the accident arose in the course of the employment, but I think that Barkey's representatives are bound to prove that it arose out of his employment, and they have not discharged the onus, and therefore Barkey's representatives are not entitled to recover.”

I think in saying so the learned Sheriff-Substitute made a mistake as to the onus of proof. As soon as it was shown, as it was shown, that Barkey was acting in the course of his employment and that the accident arose out of the employment in so far as he was actually doing his work when the accident took place, then prima facie he was within the statute, and he could only be taken outside the statute if it is proved that he himself added a peril or did something which took his action outside the scope of his employment.

Now there is no evidence of that at all. There may be evidence that Gillespie did something of the kind—that question is not before us—but there is absolutely no evidence as regards Barkey. Barkey may possibly have seen Gillespie trying to light the lamp and may have protested unavailingly and the accident happened. And there are half-a-dozen other possibilities and conjectures which one may put in the same way, each of which is as likely as the other—as likely as the other because there is not a particle of evidence by which we can tell what happened. You may have to go on circumstantial evidence in such cases; you may have to find a fact happened which it is reasonably probable did happen, but the reasonableness of the probability must be a reasonableness which the law recognises; and depend on facts and evidence of which the law takes cognisance. Of such facts and such evidence there is not a trace in the present case.

The learned Judges of the Second Division feeling this overruled the Sheriff-Substitute and held that there was not that onus upon the representatives of Barkey which the Sheriff-Substitute had held there was, and they decided that the onus really lay upon the appellants, and that the appellants had not succeeded in discharging it.

With that view I find myself in entire agreement, and I move your Lordships that this appeal be dismissed with costs.

Lord Atkinson—I think the learned arbitrator in this case has misapplied the well-known principle of law which has been laid down again and again in your Lordships' House. It would appear to me to be quite obvious that this miner had been sent down to clear the gas and was employed by his employer to do that thing, and if an accident arose while he was doing that, prima facie it was an accident arising out of and in the course of his employment entitling him to compensation. Of course it was competent for the employer in his turn to say, “Oh, the

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