Condron v Gavin Paul & Sons, Ltd
| Jurisdiction | Scotland |
| Judgment Date | 05 November 1903 |
| Date | 05 November 1903 |
| Docket Number | No. 7. |
| Court | Court of Session |
Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
Master and Servant—Workmen's Compensation Act, 1897 (60 and 61 Vict. cap. 37), sec. 1 (2) (c)—‘Serious and Wilful Misconduct’—Question of fact or law.—
A miner employed in a coal mine at a place adjoining a wheel brae on which there were two sets of rails, one for ascending and the other for descending hutches, was injured in crossing the wheel brae while the hutches were running. He was well aware that it was most dangerous to do so. Had he waited until the hutches had ceased running, he could by shouting to the man in charge at the top of the wheel brae have been able to cross in safety.
In an application by the miner against his employers for compensation under the Workmen's Compensation Act, 1897, the Sheriff-substitute dismissed the application on the ground that the applicant's injuries were due to his own serious and wilful misconduct.
A case for appeal, in which the above facts were stated, put the question —‘Was the appellant's injury attributable to his own serious and wilful misconduct in the sense of section 1 (2) (c) of the said Act ?’
The appellant contended that to establish serious and wilful misconduct in the sense of the statute, it was necessary to shew either wilful violation of a known rule or disobedience to the order of a superior, and that in the present case the accident was due to rashness, and not to wilfulness.
The Court answered the question in the affirmative, and dismissed the appeal, the Lord President and Lord Adam holding that the Sheriff's judgment determined a question which, in the absence of anything to shew that the sheriff had proceeded on an erroneous construction of the statute, was one of fact only, and was not subject to review, Lord M'Laren and Lord Kinnear holding that the judgment involved a question of the construction of the statute, and that the construction of the statute on which the Sheriff had proceeded was right.
In an arbitration upon a claim for compensation for personal injury under the Workmen's Compensation Act, 1897, in the Sheriff Court at Linlithgow, at the instance of Michael Condron, miner, Bathgate, against Gavin Paul & Sons, Limited, coalmasters, Bathgate, the Sheriff-substitute (Macleod) refused compensation on the ground that applicant's injury was due to his own serious and wilful misconduct. On the crave of the applicant the Sheriff-substitute stated a case as follows:—
‘The appellant (a lad of twenty years of age, and four years of mining experience), who was a drawer in the employment of the respondents, was injured in their Riddochhill Pit on 3d March last. Special rules, Nos. 81 and 100, of the Coal Mines Regulation Act, 1887, were in force at the pit in question at the date of the accident. Special rule 81 provides that “benchers, hangers-on, or other persons employed in connection with inclined or engine planes shall control the putting forward and coupling of hutches and the attaching of chains or ropes thereto. They shall make and attend to the signals, and shall prevent anyone from approaching or travelling on self-acting inclined planes on which hutches are in motion. They shall stand clear of hutches in motion, so as to avoid danger from breakages or runaways.”… The appellant had no personal knowledge of these special rules. He could have read them at the pithead, but did not take the trouble to do so. The only approach to the part of the pit where the appellant worked was by means of a wheel brae, the incline of which was 1 in 3, and as one ascended this wheel brae three benches opened out on to it on the right hand, known respectively in ascending order as John M'Coll's bench, M'Keown's bench, and at the top Hannah's bench. On the wheel brae there are two sets of rails, and as the workmen ascend the brae to their respective benches, they must walk between either one or other of the two sets of rails. … About seven o'clock on the morning of the accident the appellant, travelling along the pit to his work, arrived at the foot of the wheel brae which has been described, and finding that the hutches had not yet begun to work on it he walked up between the rails till he came to the opening of M'Keown's bench, where it was his duty to wait until an empty hutch should arrive for him. Such waiting time varied, and might on occasion be as long as twenty minutes.’ The case then stated in detail the circumstances which led Condron to cross the rails to the side opposite M'Keown's bench and to retire to a disused road, but as the facts negatived the idea that there was any wilful misconduct in his doing so it is not necessary to state them. The case proceeded to state that on Condron ‘emerging from his retirement he stood by the side of the rails nearest the disused road, watched a full hutch descending along the rails next to him from the top bench till it passed him, and then, in the full knowledge that the empty hutch ascending to the top bench must be very near, attempted to cross the rails to M'Keown's bench, when he was gripped by the ascending empty hutch and injured by pressure between it and the pavement. The appellant was well acquainted with the haulage system in use on the wheel brae, and was well aware that it was a most dangerous thing to cross the rails while hutches were in motion upon it. The appellant was also aware that there was...
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