Coltness Iron Company v Dobbie
| Jurisdiction | Scotland |
| Judgment Date | 21 December 1918 |
| Date | 21 December 1918 |
| Docket Number | No. 29. |
| Court | Court of Session |
Lord Justice-Clerk, Lord Dundas, Lord Salvesen, Lord Guthrie.
Mines and MineralsWagesPayment by weight of minerals gottenDeductions for substances other than mineralsMethod of ascertainingCoal 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 miners are paid according to the amount of coal gotten by them, 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. The section also provides that, where such an agreement has been made, the amount of such deductions are 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 there was a checkweigher an agreement was in force for the making of deductions, 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. The checkweigher 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. Admittedly such a method was not feasible in practice.
In an action by a miner for recovery of the amount of deductions made from his wages, held (diss. Lord Salvesen) that the pursuer was entitled to decree, as the deductions had not been made in the manner prescribed by the Act in the case of a mine where there was a checkweigher, viz., by the owners' representative and the checkweigher, or by a third person appointed in terms of the Act.
Opinion (per the Lord Justice-Clerk and Lord Dundas) that the method of average was not a special mode requiring an agreement between the owners and miners, and would accordingly have been legal had it been concurred in by the checkweigher.
Opinion contra per Lord Guthrie.
On 21st March 1916 James Dobbie, miner, Torryburn, Fife, brought an action in the Sheriff Court of Fife and Kinross, at Dunfermline, against the Coltness Iron Company, carrying on business at Blairhall Colliery, Fife.
The crave of the initial writ and the averments of the parties were subjected to radical amendments on more than one occasion in the Sheriff Court and in the Court of Session, and the record was ultimately reprinted. In its final form the initial writ craved the Court to grant decree for a sum of 6, 18s. 10d., being the cumulo amount of deductions alleged by the pursuer to have been illegally made from his wages by the defenders over a certain period in respect of substances other than coal sent up to the surface in his hutches.
The pursuer's case on the record as finally amended, so far as material to the ultimate judgment, was to the following effect:
At the Blairhall Colliery under his contract with his employers the pursuer was employed to win coal at wages dependent on the weight of mineral gotten by him. It was also agreed, in terms of section 12 (1) of the Coal Mines Regulation Act, 1887,* that deductions
should be made from the gross weight of coal sent up by him in respect of stones or substances other than coal contracted to be gotten, but there was no agreement in terms of the section as to any special mode for determining these deductions. The deductions complained of were made by the weigher, the owner's representative, without any proper examination or weighing of the pursuer's hutches, in an arbitrary and random manner, and the checkweigher, appointed to represent the miners' interests under section 12 (1), refused to concur in the figures upon which the deductions were based, his position being that the output of each individual miner must be actually examined by the method of crow-picking.
The defenders' position was that it was not feasible in practice to crow-pick each hutch, and that a method of average must be applied. They averred:The defenders employed a weigher to determine the weight of foreign material in each hutch, and the amount thereof so determined by him was deducted from the gross weight of the hutch and the net weight registered. From long experience, and frequent crow-picking of hutches, and from the appearance and gross weight of the contents of each hutch as it passed the weighbridge, the weigher, so appointed, was well able to determine the weight of stones and dirt in each hutch with fairness and practical accuracy; and, deducting the same from the gross weight, to arrive at the weight of clean coal. The deductions made by the weigher were checked monthly by the defenders, and it was always found that the total weight of coal returned by the weigher as gotten by the miners exceeded the total output of the colliery so that the miners in fact were paid for a larger quantity of coal than had actually been gotten by them. They also averred that, the contention of the checkweigher that each hutch must be crow-picked not being feasible in practice, his attitude was really obstructive, and was meant to lead to the miners being paid upon the gross weight of all material sent up by them to the surface instead of upon the weight of coal.
The pursuer pleaded;(1) The defenders having no power to make deductions in respect of stones, or substances other than the mineral contracted to be gotten which shall be sent out of the mine with the mineral contracted to be gotten, or in respect of any tubs, baskets, or hutches being improperly filled, in these cases where they are filled by the getter of the mineral or his drawer or by the persons immediately employed by him, except in the manner provided by section 12 of the Coal Mines Regulation Act, 1887, and having made and continuing to make deductions otherwise than in terms of said section 12, decree should be granted as craved, with expenses. (2) The defenders, having made illegal deductions from the wages payable to the pursuer, should be ordained to make payment of the sums so illegally deducted, with interest and expenses.
The defenders pleaded;(1) The pursuer's averments being irrelevant and lacking in specification, the action should be dismissed. (2) The pursuer being in the circumstances condescended on barred
by the actings of the checkweigher from insisting in the present action, it ought to be dismissed. (3) The deductions complained of having been validly determined as set forth, the defenders should be assoilzied. (4) The pursuer not being entitled, where no special mode of computing deductions is agreed to within the meaning of the Statute, to be paid for the gross weight of all material sent up by him, including dirt and other foreign substances, the defenders should be assoilzied. (5) Separatim. The checkweigher appointed by the pursuer and his fellow-miners having repudiated his functions and contravened the Statute, the pursuer's objections to the defenders' deductions ought to be repelled.
After sundry procedure in the Sheriff Court before the Sheriff-substitute (Umpherston) and the Sheriff (Fleming) the latter granted leave to the defenders to appeal to the Court of Session.
On 23rd October 1917, the Second Division, after hearing the case, allowed the parties a proof of their averments. The proof was taken before Lord Salvesen. The facts of the case, and also a summary of the averments of parties on record, will be found in the opinions of their Lordships infra.
The case was thereafter heard before the Second Division on 13th, 14th, 15th, and 19th November 1918.
Argued for the pursuer and respondent;The deductions were illegal. It was provided by section 12 (1) of the Coal Mines Regulation Act, 1887, 1 that deductions from the earnings of a collier in respect of substances other than coal sent up in the hutches could be made if the owners and men agreed. It was admitted that the owners and men had so agreed, but that still left open the question whether the deductions had been ascertained in terms of the Act, namely, either (a) by the owners and men agreeing on a special mode for determining the deductions, or (b) by the owners' weigher, or (c) by the owners' weigher and the men's checkweigher, or, in case of difference, by a third person to be appointed in the manner stated in the Act. No one of these methods was in operation at the defenders' colliery, and the deductions from the pursuer's earnings were therefore illegal. He was, accordingly, entitled to decree for the amount of the deductions, being the sum sued for. The defenders' plea of bar fell to be repelled in respect that the checkweigher was all along in attendance as such, the only difference between him and the weigher being one which involved a legal principle arising out of the true construction of section 12, viz., whether it was competent to apply deductions obtained by an average on the output of other colliers to an individual. The pursuer was not to suffer because the weigher and checkweigher could not agree. Nor could the actions of the checkweigher bar the pursuer from objecting to illegal deductions from his earnings, as he was not the agent of the pursuer. Further, even if the checkweigher refused to act, that would not entitle the weigher to act as he didsection 13 (3).1 Deductions under the Coal Mines Regulation Acts had been considered in a number of English cases,2 some of which were referred to in two
Scots cases, 1 where however agreements between masters and men actually existed as to making certain deductions. A comparison of the...
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Coltness Iron Company v Dobbie
...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 tur......