Park v Wilsons and Clyde Coal Company Haggerty v Wilsons and Clyde Coal Company
| Jurisdiction | Scotland |
| Judgment Date | 03 December 1927 |
| Date | 03 December 1927 |
| Docket Number | No. 12. |
| Court | Court of Session |
Lord Moncrieff, Lord Justice-Clerk (Alness), Lord Ormidale, Lord Hunter, Lord Sands, Lord Blackburn, Lord Ashmore.
Master and Servant—Constitution of contract—Whether contract one of employment—Independent contractor or servant—Brusher engaging to drive stonemine at fathomage rate and selecting own assistants—Negligence—Defence of common employment—Mines and Minerals.
Negligence—Mines and Minerals—Breach of statutory duty—Liability of mineowner—Statutory defence—‘Not reasonably practicable to avoid breach’—Coal Mines Act, 1911 (1 and 2 Geo. V. cap. 50), sec. 102 (8).
A brusher and a partner contracted with a colliery company to drive a stonemine in one of their pits, and, as permitted by the contract, personally engaged two miners to assist them in the work. In the course of the work the brusher and one of the miners were injured through an explosion of shots which certain shot-firers in the employment of the company had left unexploded during earlier operations.
In actions of damages brought by the injured men against the company, the defenders denied liability, in respect that the pursuers were servants of the company and that the accident was due to an act of their fellow-servants. They also denied liability on the ground that, having taken all practicable precautions for the safety of their workmen, they were protected by the provisions of sec. 102 (8) of the Coal Mines Act, 1911.
At a trial before a jury the following facts, inter alia, were established. Under the contract to drive the stonemine, which was made orally, it was agreed that payment was to be at the rate of £9 per fathom of mine driven; otherwise the terms of the contract were left to rest on the general understanding under which such work was usually performed. The ‘contractor’ was entitled to engage and had himself to pay his assistants, and he controlled their work; but the owners could veto the employment of any individual, and could insist on the dismissal of anyone who failed to observe the rules and regulations in force in the pit. It appeared that such contractors and the men working under them had in practice for many years been allowed the benefits of the Unemployment Insurance Act, 1920, the National Health Insurance Acts, and the Workmen's Compensation Acts, and also that their men's wages were usually made up by the owners to the minimum payable under the current wage agreements. The names of all the members of a ‘contractor's’ squad appeared in the books of the owners, who at pay times deducted from the pay-slips the contributions due under the above-mentioned Acts.
The jury having returned a verdict for the pursuers, the defenders applied for a new trial on the ground that the verdict was contrary to evidence, and they also presented a bill of exceptions.
Held, by a Court of seven Judges (diss. the Lord Justice-Clerk, Lord Sands, and Lord Moncrieff) (1) that the brusher was not an independent contractor, but that the position of himself and his assistant in relation to the defenders was that of servants; (2) that, accordingly, the defence of common employment was open to the defenders; and (3) that the jury should have been so directed by the presiding judge.
Woodhead v. Gartness Mineral Co.SC, (1877) 4 R. 469, discussed.
Observations on the nature of the statutory defence competent to mineowners under sec. 102 (8) of the Coal Mines Act, 1911.
Process—Jury trial—Motion for rule—‘Judges of the Division’—Case referred by the Division to seven judges on ground of difficulty and importance—Whether consulted judges are present in advisory capacity only without vote—Court of Session Act, 1868 (31 and 32 Vict. cap. 100), secs. 60 and 61.
Held that the provisions of sec. 60 of the Court of Session Act, 1868, with regard to the re-hearing of cases before seven judges, were not displaced by the provisions of sec. 61 with regard to setting aside the verdict of a jury, but were applicable to the case where a motion for a rule had, on account of its difficulty and importance, been appointed by the Division to be argued before seven judges; and, accordingly, that the decision of the Court fell to be made in conformity with the opinions of the majority of the seven judges.
Opinion, per the Lord Justice-Clerk, that the expression ‘judges of the Division’ in sec. 61 meant the permanent judges of the Division, to the exclusion of the judge who had presided at the trial.
Opinions, per Lord Ormidale and Lord Hunter, that, standing the decision in the case of Bicket v. WoodSC, (1893) 20 R. 874, the soundness of which their Lordships doubted, the judge who presided at the trial would fall to be included.
Process—Review—Court of seven judges—Objections to jurisdiction.
Objections to the jurisdiction of a Court of seven judges must be taken and determined in limine.
On 22nd February 1926 and 24th February 1926 respectively, actions were brought against Wilsons and Clyde Coal Company, Limited, Clyde Collieries, Hamilton, by John Park, brushing contractor, and John Haggerty, miner, Hamilton, in which the pursuers concluded for damages on account of personal injuries sustained by them owing to an explosion in one of the defenders' pits.
The following narrative of the circumstances in which the actions were brought is taken from the opinion of the Lord Justice-Clerk:—‘The pursuer in the first action with which we are concerned, John Park, who describes himself as a brushing contractor, sues the defenders, who own and work the Clyde Collieries, Hamilton, for damages in respect of injuries sustained by him in No. 3 pit on Sunday, 30th August 1925. Park avers that for some weeks before that date he and his partner, Robert Gilmour, had been engaged, under a contract which they had with the defenders, in driving a stonemine from the Ell main coal seam to the Pyotshaw seam. In the execution of that contract Park was assisted by John Haggerty, who was injured at the same time and in the same manner as Park, and who, in a second action, sues the defenders for damages in respect of his injuries.
‘The circumstances in which these men were injured are as follow:—On Saturday, 29th August, Robert Gilmour bored seven holes in the face of the stonemine, and duly charged and stemmed them. He arranged with the fireman of the pit, Robert Allison, that the shots should be duly fired, and thereupon left the mine.
In point of fact, two of these shots were fired by Allison and the other five by William M'Lelland, a shot-firer in the employment of the defenders in the colliery. On Sunday afternoon, 30th August, Park, accompanied by Haggerty, descended the pit, and returned to work at the face of the stonemine. While Park was working with his pick at the mine face an explosion took place, whereby Park and Haggerty were both seriously injured. They contend that the explosion and consequent injury to them were due to the fault of the defenders.
‘The actions, as originally framed, were laid on these grounds: (1) The alleged fault of the defenders' servants, Allison and M'Lelland, or one or other of them (a) in respect that they failed to certiorate themselves that the shots had been properly fired, and, in particular, that no misfire had taken place, as the common law requires, and (b) in respect that these servants, or one or other of them, failed to make a careful examination of the working-place after shot-firing had taken place, and to see that it was safe in all respects, as section 2 (g) of Part I. of the Explosives in Coal Mines Order of 1st September 1923, which has the force of statute, enjoins; and (2) in respect of the alleged fault of the defenders in failing to provide adequate ventilation in the mine. The last ground of claim and the averments relating to it were, after a discussion on relevancy, excised by a decision of this Court, and the cases went to trial solely on the question of the alleged liability of the defenders in respect of their servants' fault. The pursuers maintain, as I have already indicated, that a common law obligation and also a statutory obligation rested on Allison and M'Lelland to make a careful examination of the locality after shot-firing, that they were in breach of these obligations, that the pursuers' injuries were due to these breaches, and that the defenders are responsible to the pursuers for the fault of their servants.
‘The defenders maintain that Allison and M'Lelland committed no fault, either at common law or under the Order referred to; that, so far as the common law obligation was concerned, even assuming such fault to have been committed by Allison and M'Lelland, they were fellow-servants of the pursuers, who cannot therefore recover against the defenders; and finally, so far as the Coal Mines Order is concerned, that the defenders did all that was reasonably practicable to prevent any breach of statutory duty by their servants, and are therefore shielded from liability in virtue of section 102 (8) of the Coal Mines Act of 1911.*’
After certain preliminary procedure (referred to incidentally in the preceding narrative) the following issue was approved in each case for the trial of the cause:—‘Whether on or about 30th August 1925, and in or about No. 3 Pit, Clyde Collieries, Hamilton, the. pursuer was injured in his person through the fault of the defenders, to the loss, injury, and damage, of the pursuer?’ On 8th, 9th, 10th, and 11th December 1926 the cases were tried
together before Lord Moncrieff and a jury, when a verdict was returned for each pursuer, damages in the case of Park being assessed at £1500, and in that of Haggerty at £750.*
The defenders, who had excepted to certain directions of the presiding Judge, brought a bill of exceptions in each case, and also obtained a rule upon the pursuers to show cause why a new trial should not be granted.
The bill of exceptions in Park's case...
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