Scottish Court of Session Decisions

The Woodilee Coal and Coke Company, Limited, appellants, being dissatisfied with an award of the Sheriff-Substitute at Dumbarton (W. J. Kippen, K.C.) in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) brought against them by Mrs Annie Campbell or Robertson, for herself and as tutrix and administratrix-in-law of her pupil children, respondent, appealed by Stated Case.

The Case stated—“The following facts were established 1. That the claimant Mrs Annie Campbell or Robertson is the widow, and the claimants Christina Robertson and Letitia Robertson are the pupil children, of the late Kenneth Robertson of 5 Ledgate Street, Kirkintilloch, and are his only dependants. 2. That the said Kenneth Robertson was a miner in the employment of the Woodilee Coal and Coke Company, Limited. 3. That on Friday, 27th September 1918, while on the back (afternoon) shift in the Meiklehill Colliery of the said company, he was personally injured by an explosion

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which occurred about six o'clock. 4. That the said explosion occurred on his striking a match to light his pipe after finishing his piece at the customary knock off in the middle of the shift. 5. That to have matches in the said pit was an offence under section 35 of the Coal Mines Act 1911 (1 and 2 Geo. V, cap. 50), and the lighting of a match an offence under section 32 of the said Act, which was posted up and in force at the said colliery. 6. That the prohibitions against the possession and use of matches were known to the said Kenneth Robertson. 7. That he died as the result of the personal injuries received through the said explosion. I found further in fact, (8) that the said explosion was an accident arising out of and in the course of the employment of the said Kenneth Robertson. On these facts I found in law that the said Woodilee Coal and Coke Company, Limited, were liable in compensation to the said dependants Mrs Annie Campbell or Robertson and Christina Robertson and Letitia Robertson, and found the pursuer entitled to expenses.”

The question of law was—“Was there evidence upon which I could competently find that the accident which caused the death of Kenneth Robertson arose out of and in the course of his employment with the defenders?”

To his award the arbitrator appended the following note:—“The facts in this case seem very simple. Kenneth Robertson was a miner to trade. He died from injuries received through an explosion in the mine. The explosion occurred during the back (afternoon) shift, on which Robertson was that day working, at the usual knock-off time about six o'clock. It was occasioned by his striking a match to light his pipe. He did so in face of prohibition against having and using matches in the pit. The claimants are his only dependants, and parties were agreed that if compensation were due its amount was £300.

It added to my hesitation in deciding this case that, at Hamilton, Sheriff Shennan, who has great experience, had decided a case ( Dyet v. Barr's Trust) which, if not entirely, was very much on all fours with the present, in the opposite way to that to which I was inclined.

The statute enacts—‘If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman,’ compensation is to be due. At first sight it would seem hard to find a better example than injury through an explosion in a firey mine to a miner in the mine on duty. It was, however, maintained that the accident here did not arise out of the employment, but out of the miner's lighting a match for his own purposes, and that was the contention, as I understand, sustained in the Hamilton case. I regret that I cannot agree.

Sheriff Shennan bases his decision in the first place on the test applied by L. C. Loreburn in Moore v. Manchester Miners Limited, [1910] AC 498, whether the man was ‘doing what a man so employed may reasonably do, within a time during which he is employed, and at a place where he may reasonably be during that time to do that thing.’ That test was on ‘in the course of’ the employment. It was not maintained to me as I understood that the accident here, the explosion, was not ‘in the course of’ the employment. Taking the test however, Robertson was having the usual recognised break in the middle of the shift, and he was at his working-place. But for the rules he disregarded there was nothing unreasonable in what he was doing, and a breach of a rule is not sufficient ipso facto to take a man outwith the sphere of his employment. It was within the employment that the miner should take this break or rest in the middle of the shift, and it seems to me impossible to dissociate the detail of his trying to light a pipe from its surroundings. Possibly had he broken off work at an unrecognised time with the sole object of smoking, the question would have been different.

A different ground for the decision in Dyet is contained in the sentence—‘He was expressly forbidden to smoke in this section and he deliberately added a peril to his employment.’ ‘Added Peril’ was finally established by Barnes v. Nunnery Coal Company, Limited, [1912] AC 44, 49 S.L.R. 688, in which case the facts were that a youth went, contrary to express and enforced prohibition, riding to his work in the mine in a travelling tub which had nothing to do with his particular work in the mine, and he was killed by his head hitting the roof. Plumb v. Cobden Flour Company, Limited, [1914] AC 62, 51 S.L.R. 861, carried the principle further to a case where a man, not in contravention of any prohibition, in the execution of his work took advantage of a revolving shaft which happened to be convenient, thus doing the work in a way importing the danger of moving machinery not contemplated by his employers, and he was injured by falling on the shaft and being swung round on it. Herbert v. Samuel Fox & Company, Limited, [1916] A.C. 405, applied the principle to a case where the accident occurred in connection with the trucks the man had in charge, but where instead of walking in front of them, a position of comparative safety, he had, contrary to enforced prohibitions, ridden on the buffer of the leading truck, a position of great danger. Lancashire and Yorkshire Railway Company v. Bighley, [1917] A.C. 352, applied the principle to a case where a railway company had allowed its employees to disregard a prohibition and take a short cut across its lines, a dangerous practice, but where on the occasion in question, the employee finding a train of trucks on one of the lines proceeded to pass through between the trucks, a different danger. In these leading cases, and the cases which followed on them, there was by the man's conduct added to his employment a peril which was not in the contemplation of his employment and which was non-existent but for his conduct. In the present case the peril, the chance of explosion, was peculiarly incident to the employment, existent regardless of the man's conduct. What he did, did not create

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the peril, it caused the peril to materialise. It seems to me that the present case must be treated as more nearly approximating to a man's doing the right thing, but for his own purpose doing it a wrong way, and so doing bringing on himself the recognised danger of the employment— Blair & Company, Limited v. Chilton, 1915, W.C. Rep. 283.

In Lord Haldane's opinion in Simpson v. Sinclair, 1917 S.C. (H.L.) 35, 54 S.L.R. 267, it is pointed out that what is to be looked at is the proximate cause. That had been laid down in Shaw (Glasgow) Limited v. Macfarlane, 1915 S.C. 273, 52 S.L.R 236, where a man employed at an iron foundry, being struck by a stranger, fell between boxes of molten metal and was injured, and the fall near the metal, not the blow by the stranger was looked at. Similarly in Wicks v. Dowell & Company, [1905] 2 KB 225, where a man employed near an open hold took a fit and fell down the hold, and in Wright & Greig, Limited v. M'Kendry, 1918, 56 S.L.R. 39, where a man employed on a concrete floor took a fit and fell, injuring his skull on the concrete floor, the fall in the surroundings of the employment, not the fit, was looked at. In the present case the proximate cause seems to me to be the explosion due to the nature of the pit where the man was employed, not his striking the match.

As Robertson died from his injuries, no question arises as to serious and wilful misconduct under section 1 (2) ( c).

I was referred to Johnson v. Marshall & Sons Limited, [1906] AC 409; Watkins v. Guest, Keen & Nettlefolds Limited, (1912) W.C. Rep. 150, and Willis's Workmen's Compensation (17th ed.), 27–33.

Argued for the appellants—The accident did not arise out of the workman's employment. He was not doing what he was employed to do, and he added a peril to his employment by his own act. He was in conscious breach of the Coal Mines Act 1911 (1 and 2 Geo. V, cap. 50), sections 32 and 35. A variety of tests which had to be applied with care— Plumb v. Cobden Flour Mills Company, Limited, [1914] AC 62, per Lord Dunedin at p. 65, 51 S.L.R. 861—had been formulated in the cases, but judged by any of those tests the same result followed. Thus the accident was due to breach of a genuine prohibition, as in Barnes v. Nunnery Colliery Company, Limited, [1912] AC 44, 49 S.L.R. 688, per Loreburn, L.C., followed by Lord Dunedin in Plumb's case ( cit.) at p. 47. The workman was doing something for his own purposes, as in Reed v. Great Western Railway Company, [1909] AC 31, per Lord Macnaghten at p. 34, 46 S. L. R. 700. If he had arrogated to himself duties which he was neither engaged nor entitled to perform, as in Kerr v. Baird & Company, Limited, 1911 S.C. 701, 48 S.L.R. 646, the same result would have followed, but the present case was a fortiori, for the workman was doing what he knew to be expressly forbidden. Frith v. Owners of s.s. Louisianian, [1912] 2 KB 155, was analogous to the present case. Where there was something idiopathic in the workman and an employment risk the workman could still recover, for the idiopathic condition was the remote cause, and added nothing to the employment risk— Wicks v. Dowell & Company, Limited, [1905] 2 K B 225; Wright & Greig, Limited v. M'Kendry, 1918, 56 S.L.R. 39. Simpson v. Sinclair, 1917 S.C. (H.L.) 35, 54 S.L.R. 267 ( Lancashire and Yorkshire Railway Company v. Highley, [1917] A.C. 352) was not in point. Further, what the man did was not reasonably incidental to his work, and consequently the accident did not arise in the course of his employment— Davidson v. Officer, [1918] A. C. 304, 55 S.L.R. 185; Fraser v. Riddel & Company, 1914 S.C. 125, 51 S.L.R. 110; Lancashire and Yorkshire Railway Company v. Highley, [1917] A.C. 352; and Halvorsen v. Salvesen, 1912 S.C. 99, 49 S.L.R. 27.

Argued for the respondent—The accident arose out of and in the course of the employment. As regards the latter, Davidson's case did not overturn the earlier cases. It merely stated the tests in different language, but even upon the test there laid down the accident arose in the course of the employment, because it was reasonably and naturally incidental to his employment that the workman should take a smoke. The two questions of “arising out of” and “in the course of” were practically the same, and the only real defence in the present case was that of “added peril.” That doctrine was solely developed upon the Act of 1906, which had excluded serious and wilful misconduct as a defence in certain cases. That Act was an extending Act, and the doctrine of added peril should be confined to the limits to which the decided cases had applied it. The policy of the Act was to favour dependants. In the cases of added peril the workman who was surrounded by certain employment risks added a new risk of a different kind or quality from those which his employment placed around him. That was the case in Highley's case, Plumb's case, Brice v. Edward Lloyd, Limited, [1909] 2 KB 804, Barnes' case, and Herbert v. Samuel Fox & Company, Limited, [1916] A.C. 405. In all of them the workman added a new kind of peril by his own act. In Fraser's case, Wright's case, and Wicks' case the peril was in existence as a peril of the employment all the time, and all the workman did was to do something to make the peril operative. That was exactly what had happened here. The gas was the peril of the employment, and the lighting of the match merely made it operative. Simpson's case showed that only the proximate cause should be considered. Here the proximate cause was the presence of the gas, and the accident was the explosion. That principle was applied in Manson v. Forth and Clyde Steamship Company, Limited, 1913 S.C. 921, 50 S.L.R. 687. That was a question of fact for the arbitrator. The regulations were irrelevant, for the regulation in question was not one limiting the work to be done, but merely limiting the method of doing it. George v. Glasgow Coal Company, Limited, 1909 S.C. (H.L.) 1, 46 S.L.R. 28, and Willis' Workmen's Compensation Act (17th ed.), p. 21, were referred to.