Scottish Court of Session Decisions

Lord Ormidaleand Lord Gifford substantially adhered to the judgment pronounced by the Sheriff-Substitute.

Lord Justice-Clerk— I do not differ from the proposed judgment. But for the series of decisions relative to the conditions which are implied in every contract of service, I should have been inclined to hold that, in so far as these regulations related to matters in which any individual servant had an interest, they constituted the counterpart of the obligations incumbent on the servant, and were things which the master, by himself or his servants, undertook to do as his part of the contract. It would not have occurred to me that it made the slightest difference whether the work was a large or a small one, or whether the master was or was not expected to do these things personally. But it has now been conclusively fixed that the obligation incurred by the master under such a contract is one of an entirely different description, namely, to appoint competent servants to discharge these duties; and that there was no obligation whatever to supply these miners with prop-wood on the part of the only persons with whom the pursuer contracted, so that, as the law now stands, the miner is bound to work, and the master is not bound to supply him with the necessary materials to enable him to work in safety, but only to appoint persons fairly competent to do so.

But, then, it is said this duty is placed on others with whom the miner has no contract, and that his remedy lies against them. The present case is not a bad practical example of the security thereby afforded, if the defenders’ argument be sound. The manager throws it on the oversman, the oversman on the fireman, the fire-man on the drawer, until, however gross or glaring the neglect, it is impossible to fix liability on anyone. It comes to this, according to the de-fenders, that no one contracted with the miner to give him prop-wood—that there were persons who had undertaken to do this by a separate contract with another, but that who these persons are it is impossible to say.

This is the result of the decisions, and they are quite conclusive on the present case as far as the Coltness Company is concerned. The company never undertook to furnish the pursuer with prop-wood, and therefore cannot be responsible for not having furnished it; and, as far as they are concerned, they must be assoilzied if the servants appointed were competent, and there is no proof that they were not.

The case against the manager stands somewhat differently. If I were to hold it proved that prop-wood was not duly supplied, I have no doubt whatever that, prima facie at least, the manager is responsible, and must discharge himself. If the manager's obligation comes in place of that of the master, it must be read as part of the conditions of the service. Now, the manager was bound to see that prop-wood was supplied to the miners, not to do it himself, but to see it done. This is plain from regulation No. 2. It was therefore for the manager to show that this duty was performed, and on that matter I should have no doubt, had it been proved, as it lay on the pursuer to prove, that the prop-wood was not supplied. But the evidence on this hand is so conflicting that, rather reluctantly, I am obliged to concur in the judgment, although remaining under the impression that the regulations were most imperfectly carried out in this work.

The Court assoilzied the defenders.