Nimmo (James) & Company v Connell
| Jurisdiction | England & Wales |
| Judge | Lord Dunedin,Lord Atkinson,Lord Shaw of Dunfermline,Lord Phillimore,Lord Blanesburgh,. |
| Judgment Date | 21 March 1924 |
| Judgment citation (vLex) | [1924] UKHL J0321-3 |
| Court | House of Lords |
| Docket Number | No. 8. |
| Date | 21 March 1924 |
[1924] UKHL J0321-3
House of Lords
Lord Dunedin.
Lord Atkinson.
Lord Shaw.
Lord Phillimore.
Lord Blanesburgh.
After hearing Counsel, as well on Thursday the 6th, as Friday the 7th, days of December last, upon the Petition and Appeal of James Nimmo and Company, Limited, whose Registered Office is at 21 Bothwell Street, Glasgow, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division, of the 25th of May 1923, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Interlocutor might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the printed case of George Connell, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor of the 25th day of May 1923, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is furthered Ordered, That the Appellants do pay or cause to be paid to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within One Calendar Month from the date of the Certificate thereof, the Cause shall be, and the same is hereby remitted back to the Court of Session in Scotland, or to the Lord Ordinary officiating on the Bills during the Vacation, to issue such summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
I have had the advantage of perusing the Opinions which have been delivered by my noble and learned friends Lords Atkinson and Shaw, and as they entirely cover all that I should for myself have wished to say, I was prepared merely to express my concurrence, but as there has been a difference of opinion I feel I ought to add a few words.
Now, first, it seems to me that a "way" cannot be taken to be the ground on which you tread, or the walls between which you pass, or the roof which in an underground way is above your head. It includes the whole space which you use as a way, and, therefore, agreeing with Lord Atkinson, I look upon the dictum of Mr. Justice Stephen in McGiffin v. Palmers' Shipbuilding Co. as wrong. I also agree specially with his criticism of Willetts v. Watt Co., which I think he shows is not really borne out by Lord Lindley's judgment in Walsh v. Whitely. Further, I agree with Lord Shaw in thinking that the Opinion in Black's case rules the question in this case.
With great deference to the noble and learned Lord who has just preceded me, I cannot myself draw any distinction between a poisonous gas, such as carbon monoxide, and an inflammable gas allowed to remain in such quantities as to become explosive if a light is applied to it. It is true that the carbon monoxide is fatal at once while the inflammable gas needs the further step of a light being applied. But light may be applied by accident or carelessness, and the fault in the condition of the way, to my thinking, is that the gas had been allowed to accumulate to such an extent that explosion could result. This accumulation was due to the negligence of the fireman. For that negligence the owner would not have been responsible at common law, but inasmuch as that negligence in effectuating a dangerous condition in a "way" he became liable under the precise provision of the section.
My Lords,
This is an Appeal against an interlocutor of the First Division of the Court of Session in Scotland, dated the 26th May 1923, pronounced against the Appellants upon a case stated. The case stated was prepared upon a requisition by the Appellants to the Sheriff of Lanarkshire on an Appeal to the First Division of the Court of Session relative to an interlocutor pronounced by the said Sheriff awarding damages (assessed at 325 l.) under the Employers' Liability Act, 1880, and discerning against the Appellants for the payment of the above sum with interest from the date of the citation and expenses as in the case, dated the 17th November 1922, stated. The Sheriff in the case stated sets out the findings at which he arrived. They included:
1. That the Auchingeich Colliery belonged to the Appellants; that at 4 a.m. on the 1st of June 1920 the Respondent, while employed in the Appellants' service as a brusher in section No. 3 of Pit 2 of this colliery, was injured by an explosion of gas, and that at the time of the explosion the Respondent was working at a place known as the Lye in the intake airway of section 3.
2. That Auchingeich Colliery is ordinarily a gassy mine in which naked lights are not used.
3. That the Appellants had, prior to the explosion, extended an old working by cutting through a whin intrusion, and opening up an area beyond and to the north of the latter.
4. That this opening was effected by making a cutting to the left, a cutting called the left cross cut, and a cutting to the right known as the right cross cut, and by a third cutting in line with the intake airway known as the "heading."
5. That the air which ventilated this section No. 3 passed along the intake airway through the whin intrusion, then along the right cross cut and round the face, returning by a third cutting through the whin intrusion. The Lye, where the Respondent was working at the time of the explosion, was to the south of this last-mentioned intrusion.
6. That within the fortnight preceding the explosion gas had been discovered in this heading on several occasions�on two of which occasions the gas had been found to be in such quantity that it led to the withdrawal of the men working at the heading.
8. That the mine was worked on double shifts.
The Sheriff then proceeds in the case to deal with the happening of the explosion and its causes.
The 9th of his findings is to the effect that the ignition of the gas was caused by a spark from an electric coal-cutting machine which was being used in this section. (10.) That this machine was fitted with a switch box cover intended to prevent sparking and the emission of flame to the outer air from the ignition of the gas in the switch box, and was effective for that purpose if properly bolted down.
11. That at the time of the explosion the ventilation provided failed to dilute and render harmless inflammable gas to such an extent as to make the working place in the vicinity of the top of the heading fit for working. I copy the following important findings in extenso:�
"(11) that at the time of the explosion the ventilation provided failed to dilute and render harmless inflammable gas to such an extent as to make the working place in the vicinity of the top of the heading fit for working;
(12) that the men operating the coal cutting machine had negligently failed to screw down the cover properly, having used only one of the eight studs provided for that purpose;
(13) that during the shift the machinemen had worked the coal cutting machine following the direction of the air from the right cross cut round the face to the top of the heading, at which point the explosion occurred;
(14) that the fireman employed by the appellants to inspect the section on the respondent's shift, negligently and without sufficient excuse, failed to inspect the section, as required by the Coal Mines Act, within five hours of the previous inspection;
(15) that it was a reasonable inference that if the fireman had fulfilled his duty in regard to inspection he would have discovered that there was a dangerous accumulation of gas, and could either have taken steps to clear it away or have withdrawn the workmen from the neighbourhood; and
(16) that the said fireman was charged with the duties applicable to firemen laid down in the said Coal Mines Act, and the general regulations thereunder."
The Sheriff then states in the words following what were his findings on the questions of law involved:�
"I found further on the evidence relative to the respondent's claim at common law that the respondent had failed to prove that his injuries had been caused by fault on the part of the appellants.
I found in law, in these circumstances, that the accumulation of gas referred to was a defect in the condition of the ways and works connected with or used in the business of the appellants, that it had not been discovered or remedied owing to the negligence of a person in the service of the appellants entrusted by them with the duty of seeing that the ways and works were in proper condition, and that the respondent's injuries were caused by reason of said defect.
I accordingly found that the appellants were liable to the respondent in damages under the Employers' Liability Act, 1880, but not at common law, assessed the damages at the above-mentioned sum of 325 l. with interest and expenses as already stated."
He further states that the note to his interlocutor is appended to his award, and asks for the opinion of the Court on the two following questions: �
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"(1) Was I entitled, on the respondent's pleadings, to consider whether or not the presence of gas at the working place constituted a defect in the ways and works connected with or used in the business of the appellants in the sense of subsection 1 of section 1 of the Employers' Liability...
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