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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Luckie v. John Watson Ltd [1912] ScotLR 770 (12 June 1912) URL: http://www.bailii.org/scot/cases/ScotCS/1912/50SLR0770.html Cite as: [1912] SLR 770, [1912] ScotLR 770 |
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Page: 770↓
Sheriff Court at Hamilton.
A miner, in order that he might be among the first to ascend the shaft, stood in an accumulation of water at the pit bottom for some thirty minutes instead of waiting on dry ground till his turn to ascend came. Had he waited he might have reached the cage comparatively dry. In consequence of standing in the water he contracted a chill, on which deafness followed, rendering him totally unfit for work.
Held that the workman's incapacity was not due to an “injury by accident ” in the sense of the Workmen's Compensation Act 1906. Drylie v. Alloa Coal Company, Limited, 1913 S.C. 549, 50 S.L.R. 350, distinguished.
In an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), between Alexander M'Luckie, miner, Bridgeton, claimant, and John Watson Limited, coalmasters, Glasgow, defenders, the Sheriff-Substitute ( Shennan) refused compensation, and at the request of the claimant stated a Case for appeal.
The facts were as follows—“1. The appellant was a miner in the employment of the respondents in their Gilbertfield Colliery from 8th April 1912 onwards. His average weekly earnings prior to 9th September 1912 were £2 per week. 2. The pump of the pit was frequently out of order, so that the pit bottom was often flooded, and the men were often drenched by water coming down the shaft while they were being raised to the surface. The miners repeatedly complained of this to the check-weighman. 3. On each of the 9th and 10th September 1912 the pumping gear went wrong, and in consequence thereof water accumulated in the pit bottom to a depth of about 18 inches at the cage, gradually shallowing back from the cage for about 30 feet to where the ground was dry. 4. On each of these days only one cage carrying eight men was available for raising the men to the surface at the close of the shift, and there were about 200 men to be raised. As each was eager to get the first chance of ascending, all of them waded into the water at the pit bottom and stood in it, some from thirty to forty-five minutes. There was no necessity for this. The traffic near the pit bottom had ceased at the time, and the men could with safety have waited on the dry ground till their turn came to ascend. They could then have crawled over hutches which were shoved towards the cage, and could thus have reached the cage comparatively dry. 5. On both the 9th and 10th September the appellant was among those who were thus standing in the water at the pit bottom, and he stood thus waiting between thirty and forty-five minutes. He was sweating profusely when he came from his work to the pit bottom on 9th September. 6. On 9th and 10th September 1912 the appellant was also drenched by water in the shaft when he was ascending. 7. On 11th September 1912 the appellant was out at his work, but was suffering from chill. On the following day he was worse, but went out to work. On 13th September 1912 he was totally deaf, and was and still is unfit to work as a miner. 8. Before September 1912 the appellant suffered from chronic middle-ear disease, but this did not cause serious deafness and did not interfere with his capacity for work. The total deafness from which he has suffered since 13th September 1912 is due to an affection of both the internal ears. This total deafness is not connected with the previous middle-ear disease, but has almost certainly been caused by chill arising from exposure. 9. The evidence did not establish definitely any time, place, and circumstance under which appellant contracted the chill. He may even have contracted it before 9th September, but in all probability its inciting cause was some or all of the wet conditions which prevailed in the pit on 9th and 10th September. The proof does not disclose a definite event as the cause of the chill.”
The Sheriff-Substitute further stated — “In those circumstances I held that the appellant had failed to prove that his incapacity was due to accident. I held, further, that if it could be held that standing voluntarily for thirty minutes in the pit bottom was an accident, it was one which did not arise out of the appellant's employment. Accordingly I refused the appellant's claim for compensation.”
The questions of law were—“1. Was the arbiter wrong in holding that the appellant had failed to prove that his incapacity was due to accident arising out of and in the course of his employment with respondents? 2. On the facts found proved, was the arbiter wrong in refusing compensation to appellant?”
Argued for appellant—The appellant's incapacity was due to an accident arising out of and in the course of his employment. A chill might be an accident in the sense of the Act— Alloa Coal Company, Limited v. Drylie, 1913 S.C. 549, 50 S.L.R. 350. The present case fell under that authority and not under John Watson, Limited v. Brown, 1913 S.C. 593, 50 S.L.R. 415. It was immaterial that the appellant had stood in the water at the pit bottom, for even if he had waited till his turn to ascend the shaft came he would have got drenched in ascending. Esto that he had made his exit from the pit in the wrong way, and had thereby aggravated the risk of contracting a chill, that was not sufficient to exclude him from the benefit of the Act— Conway v. Pumpherston Oil Company, Limited,
Page: 771↓
1911 S.C. 660, 48 S.L.R. 632; Crane v. Norton Hill Colliery Company, [1909] 2 KB 539. Counsel for respondent were not called on.
In the Alloa Coal Company case the pit was flooded through an accident, and was flooded to such an extent that the men thought they were in danger of their lives, and rushed to the pit bottom in order to get up to the surface—not at the ordinary time and in the ordinary course of their business, but, as they thought, in order to escape from drowning. While there they were subjected to a severe wetting, and the learned Sheriff-Substitute, who acted as arbiter in the case, came to the conclusion that the disease of which the man died was contracted through the exposure to which he was then subjected. In that case it was held that there had been an accident, and that it occurred out of and in the course of the employment.
But what do we have here? We have, I agree, an accident in this way, that the pump broke down and there was water at the pit bottom; but there is no suggestion that there was the slightest danger to anybody owing to the amount of water at the bottom of the pit. The men were going up to the surface when their work was done, in the ordinary way, and if each man had waited his turn he would only have got his feet wet in getting to the cage—or, as the learned Sheriff-Substitute says, if they had been anxious not to get their feet wet they could have avoided even that to a large extent by crawling over some hutches which were pushed towards the cage. Instead of waiting their turn the workmen were all anxious to get to the cage at once, and this man walked into the water and stood there for at least thirty minutes, and in consequence of that the Sheriff-Substitute thinks it is probable that he got the chill which caused the infirmity from which he suffered.
It seems to me impossible to say that that was an accident which arose out of and in the course of the employment, and it is futile to say—as was pleaded by counsel — that the workman might have been just as ill if he had had an ordinary wetting of his feet instead of voluntarily staying in the water for thirty minutes. I think that the case is an exceedingly clear one, and that the questions should be answered in the negative.
The Court answered the two questions of law in the negative.
Counsel for Appellant— A.M.Mackay. Agent— J.Ferguson Reekie, S.S.C.
Counsel for Respondents— Carmont. Agents— W. & J. Burness, W.S.
