Scottish Court of Session Decisions

The Coal Mines Regulation Act 1887 (50 and 51 Vict. c. 58), section 49, enacts—“The following general rules shall be observed so far as is reasonably practicable in every mine:—

“Rule 4. A station or stations shall be appointed at the entrance to the mine or to different parts of the mine as the case may require, and the following provisions shall have effect—(1) As to inspection before commencing work—A competent person or persons appointed by the owner, agent, or manager for the purpose, not being contractors for getting minerals in the mine, shall, within such time immediately before the commencement of each shift as shall be fixed by special rules made under this Act, inspect every part of the mine situate beyond the station or each of the stations and in which workmen are to work or pass during that shift, and shall ascertain the condition thereof so far as the presence of gas, ventilation, roof and sides, and general safety are concerned …

Rule 21. The roof and sides of every travelling road and working-place shall be made secure, and a person shall not, unless appointed for the purpose of exploring or repairing, travel or work in any such travelling road or working-place which is not so made secure.”

Hugh Flannigan, labourer, High Street, Kinross, brought an action against the Fife

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Coal Company, Limited, in which he sued for £500 as damages at common law for the death of his son Gilbert Flannigan, who was fatally injured while at work as a wheeler and drawer in one of the defenders' pits. Alternatively, he sued for £250 under the Employers' Liability Act 1880.

The relevancy of the pursuer's case under the Employers' Liability Act was admitted.

In support of his case at common law he averred—“(Cond. 3) On or about the 30th day of March 1910 the pursuer's said son was fatally injured by the fall of a stone from the roof at said plates. He was so severely injured that he died within a few minutes. The stone which fell measured 6 feet in length, 13 inches in width, and 13 inches in thickness or thereby. The stone at the date of said accident, and for a considerable time prior thereto, had been exposed in the roof. The roof was composed of blaes and broken ‘metals.’ Owing to the movement of the strata following upon the excavation of the minerals the roof had given evidence of collapse several weeks before the accident. The defenders and their officials after named were aware of the movement of the strata, and they took down a portion of the roof near said stone and put in some timbering, but they neither removed said exposed stone nor timbered and secured it as after mentioned as they ought to have done. (Cond. 4) Notwithstanding the fact that pursuer's said son and the other wheelers and drawers employed at said wheel brae were practically continuously at work at or near said place and underneath said exposed stone, the defenders failed to prop and secure said stone as they ought to have done if said stone was to be allowed to remain in the roof. It was the duty of the defenders, in terms of the Coal Mines Regulation Act, and particularly section 49, general rule 21, to secure the roof and sides of every travelling road and working-place. Said stone could have been supported by crowns or cross-bars placed upon upright trees and having cleading props or poles placed between the crowns and the roof and at right angles to the said crowns so that said stone would have been kept in position; or otherwise, in the event of the roof threatening to collapse, sufficient warning would have been given by the straining or cracking of said timber to the pursuer's said son and any other of the workmen working under or near said stone as would have enabled them to withdraw to a place of safety. Notwithstanding that this is the usual and necessary method of support in such places, defenders failed to supply such support, and left the roof exposed as condescended on, with the natural result that the said stone, being loose, came away without warning and fell on the pursuer's said son, fatally injuring him as condescended on. Alternatively, the defenders ought to have removed said stone from the roof before allowing the pursuer's son to work near to same, and their failure to do so was the direct cause of the accident.… (Cond. 6) The said accident was also caused through the failure of the defenders to appoint a competent person to carry out the duties of fireman and roadsman and repairer in said section, under section 49, general rule 4, of said Coal Mines Regulation Act 1887. Under said general rule the defenders are bound to appoint a competent person to inspect every part of the mine situated beyond the station (said wheel brae being beyond the station), and in which workers are to work or pass during the shift, and to ascertain the condition thereof, so far as the presence of gas, ventilation, roof and side, and general safety are concerned. This, however, they failed to do. The fireman appointed by the defenders was William Clark, Bath Street, Kelty. He was ignorant of his duties as a fireman under said Act and special rules, and in particular of his duties to daily inspect said roof before making his daily report, and before allowing pursuer's said son to enter and work therein on said date. He was thus incompetent and quite unqualified for the position of fireman, to which he had been appointed by the defenders. He neglected to make any inspection of said roof on said date, or alternatively he failed to discover, as he would have done had he been competent, that the stone which fell on pursuer's said son was unsupported, and was in a dangerous condition, and liable to fall at any time as condescended on. The accident which happened was the natural result of his incompetence. Had he been competent, and had he observed the duties imposed upon him as condescended on, the said accident would not have happened. On the morning of said accident the said William Clark reported that said wheel brae was safe to work in, and he allowed the pursuer's said son to go to work therein.”

The defenders pleaded, inter alia, that the action was irrelevant.

The Sheriff-Substitute ( Umpherston) having allowed a proof before answer, the pursuer appealed for jury trial, and proposed the following issue—“Whether, on or about 30th March 1910, in the defenders' Benarty Pit, in the county of Fife, the deceased Gilbert Currie Flannigan was killed through the fault of the defenders, to the loss, injury, and damage of the pursuer? Damages, at common law, laid at £500; or alternatively for payment of £250 as damages under the Employers' Liability Act 1880.”

At the hearing in the Summar Roll the respondents objected to the relevancy of the case at common law, and argued—An employer who had appointed competent servants was not liable for their neglect of duty, for he did not warrant their competency— Wilson v. Merry & Cuninghame, May 29, 1868, 6 Macph. (H.L.) 84, 5 S.L.R. 568; Bartonshill Coal Company (1858), 3 Macq. 266 and 300; Tarrant v. Webb, (1856) 25 L.J., C.P. 261. Esto that under the Coal Mines Regulation Act the onus of showing that the respondents had complied with the statutory requirements lay on the respondents— Britannic Merthyr Coal Company, Limited v. David,

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[1910] AC 74—the mere averment that they had committed a breach of the statute was not sufficient to entitle the appellant to an issue, for the statute did not impose an absolute obligation on the employer but only a duty to take reasonable care— Watkins v. Naval Colliery Company, Limited, [1911] 2 KB 162. The dicta of Lord M'Laren in Bett v. Dalmeny Oil Company, Limited, June 17, 1905, 7 F. 787, 42 S.L.R. 638, on which the appellant relied, viz., that breach of the Coal Mines Regulation Act imposed absolute liability, had been disapproved in Calder v. Nimmo & Company, Limited, December 1, 1906, 45 S.L.R. 212, and also in Black v. Fife Coal Company, Limited, 1909 S.C. 152, 46 S.L.R. 191.

Argued for appellant—Where, as here, the case was admittedly relevant under the Employers' Liability Act, the Court would not determine ab ante that it was irrelevant at common law. The case, however, was clearly relevant at common law, for it was averred that the defenders had failed to comply with the requirements of the Coal Mines Regulation Act 1887 in failing (1) to appoint competent servants, which in itself was sufficient— M'Carten v. M'Robbie, 1909 S.C. 1020, 46 S.L.R. 776; and (2) to properly secure the roof. Breach of the statutory requirements, if relevantly averred, entitled the pursuer to an issue at common law, for they imposed absolute liability on the employer— Bett, cit. supra; David v. Britannic Merthyr Coal Company, [1909] 2 KB 146.

At advising—