Scottish Court of Session Decisions

Lord Justice-Clerk—In this case the question is whether the miners in the pit in question must be held to be excluded from the benefits of the Workmen's Compensation Act in respect that they disobeyed a rule of the pit and were therefore guilty of “serious and wilful misconduct” in terms of the Act. That rule is—“When holing is being done, sprags or holing props shall be set as soon as there is room, and the distance between such sprags or holing props shall not exceed six feet, or such less distance as shall be ordered by the owner, agent, or manager.”

Now, the fact is that the workers at the place where the accident happened had not put in any props, although holing-out had gone to the extent of twenty feet, which was in direct breach of the rule. The deceased had holed out about three feet of that space. I do not see how it can be held that he was not in breach of the rule, which is distinct to the effect that a prop must be put up whenever there is room. Being in breach of the rule, I am of opinion that he must be held to have been guilty of serious and wilful misconduct. For the rule is an imperative one, and is plainly made to insure the safety of the worker, and the failure to carry it out is plainly serious misconduct, as adding greatly to danger. That it was wilful is also plain, for there is no suggestion of an excuse for the disobedience.

I am therefore of opinion that the question put to the Court must be answered in the affirmative.

Lord Young—I regard this as a serious and important case. This was a workman in the sense of the statute, and he sustained an injury in the course of his work by which he was instantly killed, and the consequence of his death was that he left behind him a widow and five children. They, as wholly dependent upon him, are entitled to compensation under the statute unless it is shown that his death was attributable to his serious and wilful misconduct. The Sheriff who tried the case was of opinion that it was not attributable to his serious and wilful misconduct, and has therefore allowed compensation to the deceased's widow and children. The appeal to us is on a question of law which involves two questions. Stated generally, it is whether the Sheriff was wrong in law in not finding that this man's death was attributable to his serious and wilful misconduct. Prima facie the question whether the accident was or was not attributable to the serious and wilful misconduct of the workman himself is a question of fact. But we were referred to a case of some importance— Dailly v. John Watson, Limited, 2 F. 1044, in which the facts stated by the Sheriff were that a workman who suffered through an explosion had himself occasioned it by proceeding through the mine with a lighted lamp on his head, carrying cartridges in his hand which were not enclosed in a case or canister. The Court held there that the Sheriff was wrong in law in not attributing that calamity to the serious and wilful misconduct of the man who, contrary to the rules of the pit, was proceeding along with a lighted lamp on his head and these explosives in his hand. In the opinion which I expressed in that case—for I was one of the Judges—I concurred in the judgment, but I think my impression was that I could not say that a question of serious and wilful misconduct was exclusively a question of law, though in that case I held with my brethren that law was involved in the question. But to say that it is exclusively a question of law in every case is a proposition to which I could not assent. But I observe that two errors in law are imputed to the Sheriff here. One is that he did not hold that there was a violation here of Rule 9. I am disposed to hold that upon the facts stated to us we cannot hold that there was a breach of the Coal Mines Regulation Act. We have no facts except those which are stated here. Your Lordship has read the Rule of the Coal Mines Regulation Act, which is that props shall be put in at no greater distance one from another than six feet, or such less distance as may be ordered by those in charge of the pit. Now, here there were at the time of the accident five men engaged holing, the space holed being over twenty feet in all. The man O'Hara, who was killed, was at the time of the accident working at one end of a continuous line of holing, and three of the five men “had holed a considerable portion” of that continuous line “before O'Hara and the remaining man began to hole coal;” and “at the time of the accident these two had holed only about three feet,” so that the other three men had holed up to within three feet of the twenty feet at the time when O'Hara began. What was the state of the holing immediately at the place where O'Hara and his companion began to work at the time when they began we are not told.

The other three men were working at the portion of the continuous line which had been holed before O'Hara began. And how long O'Hara had been working—whether for an hour, or half-an-hour, or for ten minutes, or for five minutes before the accident happened we are not told. He and the man who was with him had during the time that they were working holed about 3 feet, about 1 1 2 feet each if the total is divided equally between them. You cannot tell how long before the accident happened O'Hara began to work. In the course of the discussion I put the question—“What should O'Hara have done; what is that which it was serious and wilful misconduct on his part to omit doing?” It was said he should not have begun his work at all but should have

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