Coltness Iron Company v Dobbie
| Jurisdiction | England & Wales |
| Judgment Date | 11 May 1920 |
| Docket Number | No. 8. |
| Date | 11 May 1920 |
| Court | House of Lords |
Viscount Finlay, Viscount Cave, Ld. Dunedin, Ld. Atkinson, Ld. Moulton.
Mines and Minerals—Wages—Payment by weight of minerals—‘Minerals contracted to be gotten’—Deductions for other substances—Method of ascertaining—Coal Mines Regulation Act, 1887 (50 and 51 Vict. cap. 58), sec. 12 (1).
Under the Coal Mines Regulation Act, 1887, sec. 12 (1), it is provided that, where the amount of miners' wages ‘depends on the amount of mineral gotten by them,’ they ‘shall be paid according to the actual weight gotten by them of the mineral contracted to be gotten, and the mineral gotten by them shall be truly weighed.’ It is further provided that the mineowners and the miners may agree that deductions shall be made in respect of substances other than coal sent up to the surface by the miners, and, where such an agreement has been made, the amount of such deductions is to be determined in such ‘special mode’ as may be agreed on between the owners and the miners, or by some person appointed by the owners, or, if there be a checkweigher, by the owners' appointee and the checkweigher, or, in case of difference, by a third person appointed as therein specified.
In a mine where the miners were paid by weight, an agreement was in force that deductions should be made, but there was no agreement as to any ‘special mode.’ The owners' representative, the weigher, made the deductions on the principle of average hutches being selected at random for crow-picking, and the results thus obtained occasionally checked by comparing the total amount of material sent up by the miners with the total output of coal from the mine. A checkweigher appointed by the miners refused to concur in these deductions, on the ground that, under the Act, the only legal method, in the absence of any agreement as to a ‘special mode,’ was to examine the output of each individual miner by crow-picking his hutches, a method admittedly impracticable. The weigher continued his practice, and a miner brought an action for recovery of the amount of deductions made from his wages.
Held (1) (aff. judgment of the Second Division) that the deductions had not been ascertained in the manner prescribed by the Act; but (2) (rev. judgment of the Second Division) that, under the Act, the pursuer was entitled to payment only for ‘the mineral contracted to be gotten,’ viz., coal, and that he had failed to prove that he had sent up more coal than that for which he had been paid.
Netherseal Colliery Co. v. BourneELR, (1889) 14 App. Cas. 228, distinguished.
(In the Court of Session 21st December 1918–1919 S. C. 257).
The defenders appealed to the House of Lords.
The case was heard on 18th and 19th March 1920.
Argued for the appellants;—The question turned upon the construction of section 12 of the Coal Mines Regulation Act, 1887,* which superseded section 17 of the Coal Mines Regulation Act, 1872.† The language of the two sections was materially different,
and the difference was of vital importance. Under the Act of 1872 payment was to be made ‘according to the weight of the mineral gotten,’ whereas under the Act of 1887 payment was to be ‘according to the actual weight gotten by them of the mineral contracted to be gotten.’ The difference of expression was intentional, and it meant that, whereas under the Act of 1872 wages were primarily to be reckoned according to the total amount of mineral matter sent up by the miner, under the Act of 1887 payment was to be made according to the weight of the mineral which was the subject of the contract, in the present case coal. The miner, accordingly, could only claim payment for coal. His employers, by a method which commended itself to their representative, had determined the amount of coal which the miner had produced, and they had paid him for that amount. The miner did not aver—and certainly had not proved—that he had produced more coal than he had been paid for, and that, accordingly, made an end of his case, irrespective of whether the mineral sent up by the miner had, or had not, been weighed according to the provisions of the Act. But the method of weighing that had been followed was not at variance with the statute. The method adopted by the mineowners, the method of averages, was not a ‘special mode’ within the meaning of section 12 (1) which could not be employed without an agreement between the owners and the miners; it, accordingly, was a method which could be adopted by a weigher alone, or, where there was a check-weigher, by the weigher and checkweigher. It was said, however, that the mineral had not been weighed as required by the Act, because there was a checkweigher employed in the mine, and neither had he concurred in the weighing, nor, in the absence of his concurrence, had there been a reference of the matter to a third party in terms of section 12. The answer to this objection was that, quoad the weighing, the checkweigher must be treated, owing to his conduct in the matter, as absent or non-existent. He would not attempt to determine the deductions by any feasible method, and he had, in fact, declined to act under section 12. Accordingly it could not be said that any difference under section 12 had arisen between him and the weigher. The result was that the deductions had been properly determined by the weigher in terms of the section. Bourne v. Netherseal Colliery Co.ELRELRELR1 was distinguishable and did not affect the present case; it was a decision upon the Act of 1872
and not upon the Act of 1887. Reference was also made to the undernoted cases.1
Argued for the respondent;—There was no material difference between the Act of 1872 and the Act of 1887. Under both Acts the owner had to pay upon the total mineral sent up from the pit before it was cleaned or sorted, unless an agreement was come to in terms of the proviso. If, owing to a failure to arrive at an agreement or a breakdown in the weighing arrangements, the amount of actual coal sent to the surface by a miner was not ascertained in the manner prescribed by the Act, the owner must pay upon the gross output. The onus of weighing was laid upon the owner. The construction of the Act of 1872 was fully considered by the Court of Appeal and by the House of Lords in the NethersealELRELR case,2 and the propositions there laid down had been applied to the Act of 1887. Those propositions were (1) that the Act of 1872 interfered with the freedom of contract between masters and men; (2) that it imposed on the owner the duty to weigh and to pay on the weight so ascertained, whatever it was; (3) that any deductions to be allowed must be of the kind, and ascertained in the manner, prescribed by the statute; and (4) that the owner was placed under an unqualified obligation to justify his deductions to the men. The contentions of the appellants were wholly inconsistent with the NethersealELRELR case,2 which should be followed. Brace v. Abercarn Colliery Co.ELRELR3 was also directly in point. The point in that case was the same as the point in the NethersealELRELR case,2 except for the fact that, as here, the question arose under the Act of 1887, and the Court were of opinion that the words ‘mineral contracted to be gotten’ left the matter precisely as it stood before. These words occurred in the proviso to section 17 of the Act of 1872 as well as in the proviso to section 12 of the Act of 1887, and the Court were of opinion that they had been inserted in the substantive part of section 12 for the sake of uniformity. In Kearney v. Whitehaven Colliery Co.ELR4 the provision was again discussed, and the effect of Lord Esher's judgment was to show that the NethersealELRELR case2 was still applicable, and that it was only under the proviso that the owner could escape paying on the gross output. The checkweigher's attitude was in the circumstances reasonable; it was not for him to settle a rate of payment applicable to every person in the pit, and based upon the principle of average. Such a method was a ‘special mode,’ which could be applied only by agreement between the owners and the miners.
At delivering judgment on 11th May 1920,—
Viscount Finlay.—This case raises an important question with reference to the ascertainment under section 12 of the Coal Mines Regulation Act, 1887, of the amount on which the miner is entitled to be paid. The respondent is a miner in the employment of the appellant Company at their Blairhall Colliery in Fife. He was employed to win coal, his wages being dependent on the weight of mineral gotten by him, and he brought
this action to recover £6, 17s. 2d. alleged to have been improperly deducted by the appellants. It is common ground that a term of his service was that deduction should be made from the gross weight of the mineral sent up the pit by the pursuer in respect of stones or substances other than the mineral contracted to be gotten, and that this deduction should be ascertained as provided by section 12 of the Act of 1887 (condescendence 3). No special mode of ascertaining the deductions had been agreed upon between the owners of the colliery and the miners. The checkweigher appointed on behalf of the men contended that the amount of deduction for ‘dirt’ must be arrived at by actual weighing in the case of each hutch, and that failing ascertainment in this way the miner must be paid on the gross weight sent up, including stones and material other than coal. On the other hand, the banksman or weigher, as representing the Company, contended that the deduction should be ascertained by calculation of the average amount of ‘dirt.’ No agreement was arrived at, and the action was brought to recover the balance which the Company had refused to pay, on the ground that it represented the ‘dirt’ which had been brought up along with the coal.
The case must turn upon the interpretation to be put upon the provisions of section 12, subsection (1), of the Act of 1887. This subsection is still in...
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