Lochgelly Iron and Coal Company v McMullan
| Jurisdiction | Scotland |
| Judgment Date | 22 December 1932 |
| Date | 22 December 1932 |
| Docket Number | No. 24. |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION.
Lord Mackay.
ReparationNegligenceMaster and ServantWorkmen's CompensationManagement of mineAlleged breach of statutory dutyNo specific averment of personal negligence or wilful default of employer or of person for whom employer responsibleClaim by dependant independently of Workmen's Compensation ActCompetencyWorkmen's Compensation Act, 1925 (15 and 16 Geo. V. cap. 84), sec. 29 (1).
The Workmen's Compensation Act, 1925, by sec. 29, subsec. (1), after enacting that, "when the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible," nothing in the Act shall affect any civil liability of the employer, but the workman may, at his option, either claim compensation under the Act or take proceedings independently of the Act, proceeds to enact that the employer shall not be liable to pay compensation to a workman both independently of and also under the Act, and "shall not be liable to any proceedings independently of this Act, except in case of such personal negligence or wilful act as aforesaid."
In an action of damages brought against a colliery company, the pursuer averred that his son, while employed as a miner by the defenders, was killed by the fall of the roof of one of the seams in the defenders' colliery, which occurred when he was placing a prop in position at his working place. He averred that the accident was due to the fault of the defenders, in respect that they were in breach of certain provisions of the Coal Mines Act, 1911, and, in particular, of sec. 49 of that Act, which provides that the roof and sides of every travelling road and working place shall be made secure. Apart from the averments of breach of the statutory provisions, there was no averment of negligence or wilful act or default on the part of the employers or of any person for whom they were responsible.
Held (rev. judgment of Lord Mackay) (1) that an action at common law founded solely on breach of statutory obligations was not excluded by the provisions of sec. 29 (1) of the Workmen's Compensation Act, 1925; (2) that failure on the part of an employer to perform a statutory duty imported a prima facie case of negligence within the meaning of sec. 29 (1); and (3) that the pursuer's averments as to negligence based on the alleged breach by the defenders of the provisions of sec. 49 of the Coal Mines Act, 1911, were sufficient to entitle him to an inquiry.
Higgins v. HarrisonUNK, (1932) 25 B. W. C. C. 113,discussed.
On 12th April 1932 John M'Mullan, Cowdenbeath, Fife, brought an action against Lochgelly Iron and Coal Company, Limited, concluding for damages in respect of the death of his son, Edward M'Mullan, who had met his death by accident while employed in one of the defenders' pits.
The pursuer averred, inter alia:(Cond. 2) "On or about 27th January 1932 the pursuer's son, Edward M'Mullan, who was a miner in the employment of the defenders was in the course of said employment working in Dora Pit, Cowdenbeath, belonging to the defenders in a seam in said pit known as the Fourteen Feet Coal. Said seam was being worked by the method known in mining as 'stoop and room.' Rooms or roads had been driven through the main seam of coal at right angles to each other a considerable number of years ago, leaving pillars or 'stoops' of coal approximately 66 feet square. Thereafter the coal was won by gradually removing these pillars and also the head coal remaining above the roadways between the pillars. While a pillar is being removed props are inserted to support the roof where slices have been taken away from the pillar. While work is proceeding it is necessary for safety that the roof of the mine adjacent to said work shall at all times be adequately supported. At the time of the accident the said Edward M'Mullan and [a] companion were working beside a pillar which had been almost completely removed. The said deceased and his said companion were ordered to remove the head coal remaining above a road adjoining said pillar. The roof, at the point where 'lifts' had been removed from said pillar, had formerly been propped in the manner above described, but all the props supporting the adjacent roof had been withdrawn the night before the accident and this unsupported portion was very close to the said road where the said deceased was set to work immediately before the accident. The object of removing said props was to let down the roof above the worked-out portion of the stoop. The roof had not fallen when the deceased was set to work in the adjacent area. The situation at the point where the deceased was set to work on the occasion when he met his death was accordingly one of great danger to him and his fellow-workmen, in respect that the roof immediately adjacent to where he was working was not supported and liable to collapse at any time as it did, a fact of which the defenders were, or ought to have been, fully aware. While the pursuer's said son was engaged in placing a prop at the place where he was working, the roof suddenly collapsed bringing down the portion over his head which then fell upon him and killed him. " (Cond. 3) "The death of the said Edward M'Mullan was due to the fault and negligence of the defenders. It was their duty, under section 49 of the Coal Mines Act, 1911, to employ a method of working which provided for the maintenance at all times in a secure condition of the roof under which the said deceased was operating at the time of said accident and to refrain from setting him to work at a point where the roof was, in fact, insecure. It was also their duty, under sections 50 and 52 of said Act, to have said roof adequately supported by props or efficient temporary supports while work was being carried on thereunder or in the neighbourhood thereof, or else to refrain altogether from carrying on operations there, and to fence off said workings in terms of section 37 of said statute. In all these duties they failed, as condescended on. By their failure to observe said statutory duties the defenders caused the death of the said Edward M'Mullan. "
The defenders pleaded, inter alia:"(1) The action, being excluded by section 29 (1) of the Workmen's Compensation Act, 1925, is incompetent and should be dismissed. (2) The pursuer's averments being irrelevant, the action should be dismissed."1
On 18th November 1932, after a discussion upon an issue proposed by the pursuer for the trial of the cause, the Lord Ordinary (Mackay) dismissed the action.
At advising on 22nd December 1932,
Lord Justice-Clerk (Alness).This is an action of damages brought by the father of a miner who was killed by the fall of a roof in a mine belonging to the defenders. The Lord Ordinary has dismissed the action as irrelevant, and he has further held that it is excluded by the terms of section 29 (1) of the Workmen's Compensation Act, 1925. In other words, he has held the action to be not only irrelevant but also incompetent. The pursuer has reclaimed against the Lord Ordinary's decision, and we have to determine whether or no that decision is well founded in law.
Logically, the plea to the competency of the action falls first to be considered. That plea is based, as I have stated, upon section 29 (1) of the Workmen's Compensation Act of 1925. The subsection is in these terms:[His Lordship quoted subsection (1)]. The part of the subsection with which we are immediately concerned is contained in its last few lines, which protect an employer from being sued independently of the Act, in respect of an accident to an employee, except where he (the employer) is guilty of personal negligence or wilful act. This case has no concern with wilful act. Accordingly, the question isDo the pursuer's averments disclose a case of "personal negligence" against the employer of his deceased son? If they do, this action is open. If they do not, the pursuer is remitted to his remedy, if any, under the Workmen's Compensation Act, and he has no other.
The answer to the question which I have formulated necessitates an examination of the pursuer's averments on record. The case which he essays to make against the defenders is one of breach of statutory duty on their part. Whether he has relevantly done so I shall afterwards consider. I shall, in the meantime, assume that he has done so. What is the pursuer's case? In effect he says this:"You, the mineowners, have an obligation laid upon you, under section 49 of the Coal Mines Act, 1911, to have the roof of a working place made secure; you were in breach of that obligation; and my son was killed in consequence of that breach." Are these, or are they not, averments of "personal negligence" on the part of the employer, in the sense in which these words are used in section 29 (1) of the Workmen's Compensation Act? That is the problem, on this branch of the case, which we have to determine.
Does, then, breach of a statutory obligation on the part of an employerprima facie disclose a case of negligence on his part? I sayprima facie, because I think that it is sufficient for the relevancy of the pursuer's case in this connexion if he has averred a case of prima facie liability on the part of the employer, and also because it is manifest that, in the inquiry to follow, if inquiry is allowed, the employer may escape from liability in virtue of section 102 (8), if he can bring himself within the ambit of its provisions. Now, no doubt the direction in section 49 is impersonal. But, none the less, the duty which it imposes attaches personally to a mineowner. I refer to Lord Cullen's opinion inRodger,15 where his Lordship says: "Section 49 occurs among a series of statutory provisions directed to 'safety.' It is expressed impersonally. It prescribes a certain condition of things in a going mine as required in order that the mine may be a lawful mine. It clearly follows, in my...
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Mullen v National Coal Board
...rubric. 2 1 and 2 Geo. V, cap. 50. 3 [1956] 1 Q. B. 511. 4 Ibid., Romer, L. J., at p. 520. 5 M'Mullan v. Lochgelly Iron and Coal Co.SC, 1933 S. C. 235. 6 [1956] 1 Q. B. 7 Black v. Fife Coal Co.ELR, 1912 S. C. (H. L.) 33, Lord Shaw of Dunfermline at p. 54, [1912] A. C. 149, at pp. 178179. 8 ......