English v Wilsons and Clyde Coal Company [2ND DIVISION.]
| Jurisdiction | Scotland |
| Judgment Date | 17 July 1936 |
| Docket Number | No. 73. |
| Date | 17 July 1936 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Jamieson.
Negligence—Master and Servant—Liability at common law—Defective system of working—Provision of system delegated to servant—Accident to workman through failure of servant to provide reasonably safe system—Mines—Liability of mineowner where competent officials provided—Mineowner debarred by statute from technical management—Coal Mines Act, 1911 (1 and 2 Geo. V, cap. 50), sec. 2 (4).
Negligence—Master and Servant—Mines—Liability of mineowner where competent officials appointed—"Agent"—Defect in system of working known only to agent—Accident to workman—Whether agent fellow servant—Coal Mines Act, 1911 (1 and 2 Geo. V, cap. 50), sec. 122.
In an action, brought by a miner against a colliery company to recover damages in respect of injuries sustained by the pursuer while employed by the defenders, in consequence of their failure to provide a reasonably safe system of working in the colliery, a jury, in answer to specific questions put by the presiding judge, found, inter alia, (1) that the system of working in the section of the colliery where the accident occurred was not a reasonably safe system, the defect consisting in the failure to provide a sufficient method of warning the man in charge of the mine haulage to stop the haulage when workmen were passing along the haulage ways to and from their work; (2) that the defenders' system of working was unknown to their board of directors, but was known to the agent of the company; (3) that the defect in the system was unknown to the board, but known to the agent; and (4) that the provision of the system of working, found to be defective, was part of the technical management of the colliery. The presiding judge applied the verdict for the pursuer.
Held by a Court of seven judges (diss. Lord Mackay and Lord Pitman) (1) that it was established by a course of decisions and practice in Scotland that, at common law, an employer owed a duty to his workmen to exercise due care in providing a system of working which was reasonably safe for them, and that delegation of this duty to a competent servant did not relieve the employer of liability if accident resulted through the failure of the servant to provide such a system; and (2) that the defenders' duty at common law was not affected by the circumstance that, under section 2 (4) of the Coal Mines Act, 1911, they were debarred from taking part in the technical management of the mine, the purpose of that provision being, not to relieve the employer of his duties, but merely to enable him to discharge them more efficiently.
Fanton v. DenvilleELR, [1932] 2 K. B. 309, commented on.
Opinion by the Second Division (dub. the Lord Justice-Clerk) that, if the duty to remedy the defect in question had rested solely upon the agent, who alone knew of the defect, the verdict would have fallen to be applied in favour of the defenders, in respect that the agent, although in terms of section 122 of the Coal Mines Act, 1911, the representative of the defenders, was nevertheless merely an official of the company, appointed and paid by them and subject to dismissal by them, and therefore a fellow servant of the pursuer.
On 30th November 1933 Donald English, miner, Cowdenbeath, brought an action at common law against Wilsons and Clyde Coal Company, Limited, in which he claimed damages in respect of injuries sustained by him while employed in the defenders' Glencraig Colliery in Fife, in consequence of their alleged failure to provide a reasonably safe system of working.
The parties averred:—(Cond. 2) "On or about Monday, 27th March 1933, and for some time prior thereto, the pursuer was employed by the defenders as an oncost worker at their Glencraig Colliery. On the said date he was employed underground on the work of repairing an airway leading off from a haulage road known as the Mine Jigger Brae. Access to his working place was had down No. 1 shaft, thence along a level stone mine used as a haulage road, and thence up the said Mine Jigger Brae. About half way up the Mine Jigger Brae the airway where he worked led off to the left through a trap-door. Egress was had from his working place by the same route on the outward journey. The haulage on the said Mine Jigger Brae was of the self-acting type, and it worked intermittently. It consisted of a double set of rails, and an endless rope running round a pulley at the top of the brae and a pulley at the bottom of the brae. The top pulley was equipped with a brake for stopping the haulage. … The haulage, when working, was in motion for about three or four minutess at a time, and stopped for about eight or ten minutes at a time. The statements in answer, so far as not coinciding herewith, are denied." (Ans. 2) "Admitted that the pursuer was employed by the defenders on 27th March 1933 as a repairer in their No. 1 Glencraig Pit. On that date he was employed underground in repairing an airway situated beyond a haulage roadway known as the Mine Jigger Brae. … Explained that the pursuer could get to his work either by proceeding to the top of the Mine Jigger Brae and ascending another haulage incline which joined the top of the Mine Jigger Brae, and was known as Butters Brae. He could also reach his working place by leaving the Mine Jigger Brae some considerable distance from the top and proceeding along a travelling way to the left. The haulage when working ran for one to one and a half minutes, and was then stopped for a period of two to five minutes." (Cond. 3) "On said 27th March the pursuer was on the day shift commencing at 6a.m., and ending at 1.30 p.m. The outward journey from his working place to No. 1 shaft took about twenty minutes. Under the defenders system and regulations for the colliery the day shift men were only allowed up the shaft between 1.30 and 2 p.m. At the end of his shift, and shortly after 1.30 p.m., the pursuer passed out of the said airway into the Mine Jigger Brae, and proceeded down the said brae in the direction of No. 1 shaft. The haulage on the said brae was then stationary, and the day shift wheelers in charge of it had finished their shift and would normally have been on their outward journey, and the back shift wheelers had not yet arrived. While the pursuer was proceeding down the said brae between 1.30 and 2p.m. the haulage on the said brae was started. The pursuer thereupon endeavoured to seek refuge in a manhole, but while doing so he was caught between a rake of hutches and the side of the road, whereby he suffered the injuries after mentioned. Unknown to the pursuer the day shift wheelers had been working overtime on the defenders' instructions and had started the haulage as aforesaid. …" (Cond. 4) "The said accident was caused by the fault and negligence of the defenders. It was their duty to provide a reasonably safe system of working, and this duty they culpably failed to perform, and so caused the said accident. The times fixed by the defenders, under the Coal Mines Regulations Act, 1908, as the time at which the raising of the day shift men up the shaft of the mine was to commence and end respectively, were 1.30 and 2 p.m. The defenders were well aware and their system required that, between these hours, and particularly shortly after 1.30 p.m., workmen on their outward journey would be travelling by way of the haulage roads of the mine, and particularly by the Mine Jigger Brae. No alternative route was provided by the defenders clear of the haulage roads. It was a necessary part of a safe system, and was in accordance with usual and recognised mining practice in Scotland, that the defenders should provide for the haulage on travelling roads being stopped during the said period—1.30 to 2 p.m., but the defenders' system ignored this. On the contrary the defenders, in order to maintain the output of coal from their mine, required that all the coal won during any shift should be drawn along the haulage roads before the haulage stopped at the end of that shift. This requirement, as they were well aware, sometimes necessitated the haulage being in motion between 1.30 and 2 p.m., when miners were on their outward journey. This constituted a dangerous defect in system, for which the defenders are responsible. The defenders were well aware, and the fact was, that the actual presence of men on the brae who entered it on occasions, such as the occasion condescended on, would not be known to the wheelers and benchers at the top of the brae, who alone had power to stop and start the haulage on the brae, but they made no regulations or provision for their protection. In particular, it was the duty of the defenders, and it is in accordance with good mining practice, to provide a separate travelling road, duly inspected every five hours in terms of section 65 of the Coal Mines Act, 1911, for men travelling outwards from the workings beyond the Mine Jigger Brae without requiring them to travel a haulage road. The defenders negligently failed to provide a separate travelling road for men, and required their workmen, including the pursuer, to travel along the said Mine Jigger Brae. Further, the defenders negligently failed to provide any effective system of stopping the haulage on the Mine Jigger Brae during the time which day shift men had for travelling from their working places at the end of their shift to the shaft No. 1 in order to be raised to the surface. The statements in answer, so far as not coinciding herewith, are denied. … It is believed and averred that at least two of the defenders' directors have certificates as colliery managers of the first class, and take an active part in the control and management of the mine." (Ans. 4) "Admitted that one of the directors had a first class certificate as a colliery manager, subject to the explanation that none of the directors took any active part in the management of the mine, and were not entitled to do so under the Coal Mines...
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