Bain v Fife Coal Company
| Jurisdiction | Scotland |
| Judgment Date | 31 May 1935 |
| Docket Number | No. 69. |
| Date | 31 May 1935 |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION.
Lord Pitman.
ReparationNegligenceMaster and ServantMines and MineralsManagement of minesStatutory duty to provide adequate working space free from dangerBreach of dutyLiability of mineowners where competent officials and adequate materials providedStatutory liabilityLiability at common lawCoal Mines Act, 1911 (1 and 2 Geo. V, cap. 50), secs. 2 (4), 60 (4), 86 (1), and 102 (8)General Regulations for Coal Mines, 1913 (S. R. & O. 1913, No. 748), Regulations 117 and 123 (c).
ProcessJury trialBill of exceptionsException to refusal of judge to give suggested directionDesirability of including in bill actual direction given by judge.
The General Regulations for Coal Mines, 1913, made in pursuance of powers conferred by the Coal Mines Act, 1911, provide, by Reg. 123 (c), that adequate working space, free from danger, shall be provided for all apparatus worked by any person; and, by Reg. 117, that it is the duty of, inter alia, the mineowner and the manager to comply with, and enforce, the Regulations. The Coal Mines Act, 1911, provides, by sec. 2 (4), that a mineowner shall not take part in the technical management of a mine unless qualified to be a manager; and, by sec. 102 (8), that he shall not be liable to an action for damages as for a breach of statutory duty if it is shown that it was not reasonably practicable to avoid or prevent the breach.
A motorman, in charge of an electric motor which drew coal hutches along a dook in a colliery, was caught by a derailed hutch and injured. In an action of damages brought by him against the mineowners the pursuer averred that his working space was inadequate and dangerous, and that the defenders were responsible therefor, both at common law and under the 1913 Regulations.
At the trial counsel for the defenders excepted to the refusal of the presiding judge to direct the jury (1) that an employer does not warrant the safety of plant but only undertakes to use reasonable care to ensure such safety, an obligation which is fulfilled by the appointment of competent officials and the provision of adequate plant, means, and resources; and (2) that, in the present case, the responsibility for the pursuer's safety lay with the mine officials charged with the technical management of the mine, and not with the defenders, who were debarred by sec. 2 (4) of the Act of 1911 from taking any part in such management.
The jury having returned a verdict for the pursuer, the defenders applied for a new trial on the ground that the verdict was contrary to the evidence; and they also presented a bill of exceptions which, while containing the terms of the directions sought by the defenders, did not set forth the actual direction given by the presiding judge.
The Court discharged the rule and disallowed the bill of exceptions;holding (1) that Reg. 123 (c) of the 1913 Regulations imposed an absolute statutory duty upon the defenders, as mineowners, to see that the working space provided for the pursuer was adequate and safe, and that this duty could not be delegated; (2) that the presiding judge had rightly refused to give the direction suggested by the defenders, in respect that it ignored the existence of that absolute duty; (3) that, on the evidence, the jury were entitled to take the view that the working space was inadequate and dangerous; and (4) that the defenders had failed to establiush the only available statutory defence under sec. 102 (8) of the Act of 1911.
Question whether the direction asked for would have been correct had the pursuer's case been laid solely at common law.
Wilson v. Merry & CuninghameELR, (1868) 6 Macph. (H. L.) 84, L. R., 1 H. L. Sc. 326; Fanton v. DenvilleELR,[1932] 2 K. B. 309, and other authorities discussed.
Opinion, per the Lord Justice-Clerk, that it was desirable that a bill of exceptions, based on the refusal of the presiding judge to give suggested directions, should contain the terms of the actual direction given by the judge.
On 16th November 1932, Robert Lister Bain, motorman, brought an action against his employers, the Fife Coal Company, Limited, concluding for 2500 as damages in respect of personal injuries received by him while in the employment of the defenders. The circumstances in which the accident occurred and the allegations of fault made against the defenders are set forth in the following narrative taken from Lord Hunter's opinion:"The pursuer was employed by the defenders as a motorman on Paris dook in the Lindsay Colliery, Fife. The motor had belt-wheels, belt, toothed-wheels, and drum, on which a haulage rope was wound and unwound. There was also a controller to regulate the current of electricity to the motor, a lever for operating the gear of the drum, and a lever for operating the brake on the drum. The motor and drum were fixed on concrete foundations. There was no engine-house, the whole machinery being placed at the side of the dook. The machinery was placed on the low side of the top of the dook, and the haulage rope was led from the drum up the dook to a frame above the level of the hutches, round which the haulage rope passed to the hutches, which were pulled up or lowered down the dook on a single line of rails. The hutches passed the machinery on their passage up or down the dook, which had an incline of 1 in 5 or thereby against the load. The machinery pulled loaded hutches, usually in rakes of three, up the dook, but when empty hutches were being lowered, the drum was thrown out of gear, and the speed of the descending hutches was regulated by the brake on the drum. There was a column of water pipes laid parallel to the line of rails, and between the motor and the rails. The place where the pursuer had to stand is shown on a plan in process. From that plan it would appear that the pursuer might either stand in a space between the brake and an erection marked Resistance, or between the brake and the pipes. According to the pursuer's evidence he took up the latter position, while the defenders say that the former position was the proper one. No direction was given by the defenders to the pursuer, and I think that the jury were entitled to hold that it was not improper for the pursuer to stand between the brake and the pipes. On 15th February 1932 the pursuer was standing in the position I have referred to, attending to the various levers. As the motor was hauling a rake of hutches up the dook, one of the hutches appears to have become derailed, the pursuer was caught by his clothing, dragged a considerable distance from his levers, and severely injured.
"The pursuer alleged that the defenders are liable to him at common law because they failed to provide a proper and safe system of working. His case really amounts to this, that there ought to have been a fence between him and the line of rails, as this was necessary to prevent his being dragged away from his post in the event of hutches being derailed. He also maintains that the defenders were in breach of a statutory duty laid upon them by the General Regulations under the Coal Mines Act, 1911, dealing with the use of electricity underground. Part III, Regulation 123 (c), of these Regulations provides:Adequate working space and means of access clear of obstruction and free from danger shall be provided for all apparatus that has to be worked or attended to by any person, and all handles intended to be operated shall be conveniently placed for that purpose."
The pursuer pleaded, inter alia:"(1) The pursuer, having sustained loss, injury and damage through the fault of the defenders, as condescended on, is entitled to reparation therefor from the defenders."
The defenders pleaded, inter alia:"(4) The accident to the pursuer not having been due to the fault of the defenders, or of anyone for whom they are responsible, or to any breach of statutory duty by them, the defenders should be assoilzied. (5) The accident to the pursuer having been due, or at any rate materially contributed to, by the negligence of the pursuer himself, the defenders should be assoilzied. (6) Separatim, the accident having been caused by the negligence of fellow-servants of the pursuer, the defenders should be assoilzied. (7) Separatim, it not having been reasonably practicable to avoid or prevent the alleged breach of the statutory Regulations averred, the defenders, in terms of section 102 (8) of the Coal Mines Act, 1911, are entitled to decree of absolvitor."1
The case was tried before Lord Pitman and a jury on 13th, 14th, 15th and 16th March 1934. After the evidence of both parties had been closed and after both counsel had addressed the jury, counsel for the defenders asked the presiding judge to direct the jury that "An employer does not warrant to his employees that the plant and property used in his business is safe; he only undertakes that he will use reasonable care to see that they are safe; and he fulfils this obligation by using reasonable care in the selection of competent officials and the provision of adequate plant, means and resources to carry out the work. If the employer satisfied these conditions, he is not liable for injury caused to one of his servants by the negligence of such an official in the use of the plant"; and that "The driving of a developing or proving road, as the dook in question was, the situation and lay-out of the electric haulage machinery in the dook, and the laying of the haulage-way in the dook being part of the technical management of the mine from which the owners are debarred by statute from taking any part, the owners are not responsible for injury sustained by one of their servants through the failure of the officials charged with the technical management of the mine to adopt a safe system of working." The presiding judge having refused to direct the jury as he had been requested, and having charged the jury, counsel for the defenders formally excepted to the judge's refusal to give the directions...
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