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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Monaghan v. The United Collieries, Ltd [1900] ScotLR 38_92 (27 November 1900) URL: http://www.bailii.org/scot/cases/ScotCS/1900/38SLR0092.html Cite as: [1900] ScotLR 38_92, [1900] SLR 38_92 |
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Page: 92↓
[Sheriff Court of Lanarkshire.
By section 7 (1) of the Workmen's Compensation Act it is enacted that the Act “shall apply only to employment by the undertakers … on or in or about,” inter alia “a mine.” By section 7 (2) it is declared that “mine means a mine to which the Coal Mines Regulation Act 1887 … applies.” By section 75 of that Act it is declared that “mine” includes every shaft in the “course of being sunk, and every level and inclined plane in the course of being driven, and all the shafts, levels, planes, works, tramways, and sidings, both below ground and above ground, in and adjacent to and belonging to the mine.”
A workman in the employment of the proprietors of a colliery as brakesman of a pug-engine used in connection therewith, proceeded with his engine along a siding belonging to the colliery, and was directed by the engine-driver to detach two empty waggons from a train on the line of the Caledonian Railway in order that the engine might take them to a sand-hole three or four hundred yards distant on the caledonian line. The length of the siding from the colliery to the line was about 80 yards; it was not used in connection with any other pit. The colliery proprietors had contracted with the tenant of the sand-hole to remove the sand for him by means of the colliery engine, but in the railway company's waggons, the practice being that the waggons were taken to the sand-hole by the engine, loaded there, brought back to the colliery siding where they were weighed, and finally removed by the railway company. The sand-hole traffic had no connection with the working of the mine as such. While engaged in uncoupling the waggons as directed the workman was killed.
Held ( diss. Lord Adam) that the accident arose out of and in the course of the deceased's employment on or in or about a mine within the meaning of the Coal Mines Regulation Act 1887, section 75, and the Workmen's Compensation Act 1897, and that his employers were liable in compensation.
In a claim under the Workmen's Compensation Act 1897, at the instance of
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Mrs Bevis Slamin or Monaghan, mother of the late James Slamin, against the United Collieries, Limited, the following facts were found proved by the Sheriff-Substitute of Lanarkshire ( Guthrie):—“1. That the appellant's son James Slamin was employed by the respondents as brakesman of a pug-engine used in connection with their collieries at Victoria Pit, near Motherwell. 2. That the said James Slamin on 5th March 1900 proceeded with said engine along the siding belonging to the colliery, and was directed by the enginedriver to detach two empty waggons from a train on the line of the Caledonian Railway in order that the respondents' said engine might take them to a sand-hole 300 or 400 yards distant on the said Caledonian line towards Motherwell. 3. That while the said James Slamin was engaged in uncoupling said waggons he was caught between the buffers of these waggons and of the waggons still remaining on the line, and so injured that he died within a few minutes thereafter. 4. That the respondents had contracted with the tenant of the sandhole—a Mr Fleck—to remove the sand for him from said sand-hole by their said engine in the Railway Company's waggons. 5. That the two waggons in question were to be taken to the sand-hole by said pug-engine, loaded there, brought back to the defenders' siding, weighed there, and thereafter removed by the Railway Company. The sand-hole traffic had to do with the collieries only in so far as the colliery engine was used by agreement to carry the sand to Caledonian Railway trains, which were made up at or near the colliery siding.” On these facts the Sheriff-Substitute found in law that the work which the said James Slamin was doing at the time of his death was not employment on, in, or about a mine. He accordingly assoilzied the respondents and found them entitled to expenses.
At the instance of the claimant the Sheriff-Substitute stated a case for appeal.
The question of law was as follows:—“Whether in the circumstances the death of James Slamin, the appellant's son, was caused by accident arising out of and in the course of his employment as a workman with the respondents on or in or about a mine?”
It was admitted by the parties that the length of the siding from the pit to the Caledonian Railway line was about 80 yards.
The following cases were cited by the parties— Chambers v. Whitehaven Harbour Commissioners [1899], 2 Q.B. 132; Bell & Sime, Limited v. Whitton, June 16, 1899, 1 F. 942; Lowth v. Ibbotson [1899], 1 Q.B. 1003; Turnbull v. Lambton Collieries, Limited, May 7, 1900, 16 T.L.R. 369; Francis v. Turner Brothers [1900], 1 Q.B. 478; Fenn v. Miller, March 10, 1900, 16 T.L.R. 265; Lysons v. A. Knowles & Sons [1900], 1 Q.B. 780.
At advising—
The material facts are that James Slamin was employed by the respondents as brakesman of a pug engine in connection with their collieries at Victoria Pit near Motherwell; that on 5th March 1900 he proceeded with that engine along the siding belonging to the colliery, and was directed by the engine-driver to detach two empty waggons from a train on the Caledonian Railway line in order that the pug engine might take them to a sand-hole 300 or 400 yards distant on the Caledonian Railway line towards Motherwell; that while he was engaged in uncoupling these waggons he was caught between the buffers of these waggons and of the waggons still remaining on the line, and so injured that he died within a few minutes thereafter; that the respondents had contracted with the tenant of the sand-hole to remove the sand for him from the sand-hole by the pug engine in the railway company's waggons; that the two waggons in question were to be taken to the sand-hole by the pug-engine, loaded there, brought back to the respondents' siding, weighed there, and afterwards removed by the railway company. The sand-hole traffic had to do with the collieries only in so far as the colliery engine was used by agreement to haul the sand to Caledonian Railway trains, which were made up at or near the colliery siding.
By section 7 (1) of the Workmen's Compensation Act 1897 it is declared that the Act shall apply only to employment by the undertakers as therein defined on or in or about ( inter alia) a mine, and by sub-section (2) it is declared that “mine” means a mine to which the Coal Mines Regulation Act 1887 or the Metalliferous Mines Act 1872 applies.
By section 75 of the Coal Mines Regulation Act 1887 it is declared that “mine” includes every shaft in the course of being sunk, and every level and inclined plane in the course of being driven, and all the shafts, levels, planes, works, tramways, and sidings, both below ground and above ground, and adjacent to and belonging to the mine. The last “and” in this definition appears to be used as equivalent to “or.”
From the statements made at the bar I understood the parties to be agreed that the length of the siding from the Victoria Pit to the Caledonian Railway line is about 80 yards, and that the siding has no connection with and serves no other pit.
If such an accident had happened to Slamin at the place where it did happen, when waggons used in the ordinary colliery business of the respondents were being uncoupled or moved into or out of the siding in pursuance of that business, I should not have thought it doubtful that the accident arose out of and in the course of Slamin's employment by the respondents on, in, or about a mine within the meaning of section 7 of the Act of 1897, and what actually did happen was different only in
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For these reasons I consider that the question put in the case should be answered in the affirmative.
It further appears that the reason why Slamin was so employed at the time of the accident was that the respondents, not having apparently full occupation for the pug engine at their collieries, had contracted with a Mr Fleck, the tenant of a sand-hole on the Caledonian line, some 300 or 400 yards distant from the place of the accident, to remove the sand for him in the Caledonian Company's waggons by their pug engine. On the occasion in question the two waggons, which Slamin was uncoupling, were to have been taken to the sand-hole, loaded there, brought back to the respondents' siding, weighed there, and thereafter removed by the Caledonian Company.
It is in these circumstances that we are asked whether Slamin's death was caused by accident arising out of and in the course of his employment, as a workman with the respondents, on, in, or about a mine.
I think that it is clear that at the time of the accident Slamin was on the line of the Caledonian Railway, and was not on the respondents' siding, or in any part of their collieries; but I think that it is equally clear that he was in the immediate vicinity of the siding, which, admittedly, is a part of their pit or mine.
I think it is also clear that he was not at the time employed in any work in connection with the mines. The work he was employed on was Mr Fleck's work—the removal of sand from the sand-pit.
I think, therefore, that the question in this case comes to be whether because Slamin was injured in the immediate vicinity of the mine, and in that service “about” the mine, a claim for compensation arises, although he was not at the time engaged in work connected with the mine.
The clauses of the Workmen's Compensation Act which deal with this matter are sections 1 (1) and 7 (1).
Section 1 (1) declares that “if in any employment to which this Act applies, personal injury by accident arising out of and in the course of the employment is caused to a workmen,” his employer shall be liable to pay compensation. Section 7 (1) defines the employments to which the Act applies. It enacts that the Act shall apply only to employments by the undertakers on, in, or about a railway, factory, mine, and so on.
Now, it appears to me that the word “employment” as used in the Act refers to the nature or character of the work at which the workman is actually employed at the time of the accident, and that the accident must have arisen out of and in the course of that employment. The Act. it appears to me, does not concern itself with the contract between the employer and the workman. Nor do I think it material that the respondents were in this case both owners of the mine and contractors for the removal of the sand. The material fact is that on the occasion in question Slamin was being employed by them in their character of contractors.
The question therefore appears to me to be, whether or not the employment at which Slamin was engaged at the time, and in the course of which he was injured, was one to which the Act applies. Now, the employment at which Slamin was engaged at the time was that of removing sand from Mr Fleck's sand-pit, an employment to which it is not said that the Act applies, and with regard to which it is found in fact that “it had to do with the collieries only in so far as the colliery engine was used by agreement to carry the sand to Caledonian Railway trains, which were made up at the colliery siding.”
Does, then, an employment to which per se this Act does not apply, become an
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When the Act declares that it shall apply to employment on, in, or about a railway, factory, or mine, I think it has reference to the nature and character of the work carried on at such undertakings, and that by the introduction of the word “about” a railway, factory, or mine, no more is intended than that a workman who is employed in or on a railway, factory, or mine shall not be excluded from the benefit of the Act, which otherwise he would have had, merely because the accident has occurred outside the area of the railway, factory, or mine.
For these reasons I think the question should be answered in the negative.
By the first section of the statute an employer is liable in compensation to his workman only in cases where the workman has been personally injured by accident arising out of and in the course of employment to which the Act applies; and the employments to which the Act applies are enumerated in the seventh section. Reading these two sections together, it seems to be clear that to establish the claim for compensation three conditions must be satisfied—(1) The injured workman must have been in the employment of persons who answer the statutory description of undertakers. (2) The employment must have been in or about a railway, mine, factory, or engineering work, or on, in, or about buildings in the course of construction under certain conditions. (3) The accident must have arisen out of and in the course of the employment.
(1) The first point creates no difficulty. The deceased was employed by the respondents as a brakesman on a colliery siding belonging to them; the word “mine,” as used in the statute, by the definition includes the siding; and the respondents as owners are beyond question undertakers within the meaning of the statute in respect of the mine and its siding.
(2) The second point also is, I think, satisfactorily established. In all the cases, so far as I know, in which we have had occasion to construe the words “on, in, or about,” they have been held to define the locality at which the injured man must be employed in order to found his claim for compensation. It may be, as the respondents maintain, that the mere presence of a servant of the undertakers in a mine or factory when an accident happens will not bring him within the scope of the Act if he is not employed to work in such mine or factory. But in applying that doctrine to the present case it must be kept in view that it is not necessary that the deceased should have been employed in the mine proper. It is enough that he was employed on the siding, which for the purpose of the statute is just as much part of the mine as the underground workings. Accordingly it is not disputed that if the accident by which the deceased man was injured had happened to him while at work on the siding this condition would have been satisfied, because what the Act calls a mine includes, according to the definition, a siding. On the other hand, it is clear enough that the Caledonian Railway is not on or in either the mine proper or the siding. The question then is, whether the particular part of the line where the accident happened is or is not “about” the siding. I think it is. In Powell v. Brown it was held that “about” was an enlarging word, and that the Legislature had not confined the Act to employment on or in a factory, or on or in the other places specified; the language of the section would be satisfied if the employment were in close proximity to one or other of such places. Was the injury, then, sustained at a place near enough to the siding to come within the scope of the Act? The Sheriff's statement as to this is not perhaps so distinct and specific as it might have been. But he says enough to make it plain to my mind that the uncoupling of waggons, which is the operation out of which the accident arose, took place at a point on the line so close to the siding as to come within the words “on or about” if any force is to be given to these words. The case seems to me in this respect to be very similar to Powell v. Brown, where a man loading timber into a cart on the street outside the entrance to his master's factory was held to have received an injury “in or about” the factory. On the other hand, it is plainly distinguishable from such cases as the case cited in which a carter was hurt on the high road more than a mile from his employer's factory, or in Francis v. Turner, where a workman employed in a factory was sent on his employer's business to another factory belonging to a different person, and was injured there by the fall of an engine shed. In each of these cases the locality of the accident was remote from the place at which the employer carried on his business, and persons frequenting it were exposed to other risks than those for which the statute makes the employer responsible.
(3) The remaining question is, whether the accident arose out of and in the course of the employment of the injured man? This is perhaps more troublesome than either of the others, but in my opinion the reasons for the appellant must prevail. There would have been no difficulty if the
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The Court answered the question in the affirmative.
Counsel for the Appellant— Glegg— W. Thomson. Agent— Charles George, S.S.C.
Counsel for the Respondents— W. Campbell, Q.C.— J. C. Watt. Agents— Anderson & Chisholm, Solicitors.
