Robertson v kinneil Cannel and Coking Coal Company
| Jurisdiction | Scotland |
| Judgment Date | 27 June 1930 |
| Date | 27 June 1930 |
| Docket Number | No. 115. |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION.
NegligenceMaster and ServantMinesLiability under the Employers' Liability Act, 1880Ways, works, machinery, or plantWorkman killed by runaway hutch in mineAccident due to failure of fellow workman to adjust brake apparatus properlyNo defect in brake apparatusWhether accident due to defect in "condition" of plantWhether fellow workman a person "entrusted with the duty of seeing" that plant in proper conditionEmployers' Liability Act, 1880 (43 and 44 Vict. cap. 42), secs. 1 (1) and 2 (1).
The Employers' Liability Act, 1880, by sec. 1 (1), makes an employer liable where personal injury has been caused to a workman "by reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the employer"; and, by sec. 2 (1), limits this liability to the case where the defect has arisen from, or has not been discovered or remedied owing to, the negligence of the employer or of some person in his service, and "entrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition."
A repairer, while at work in a mine, was fatally injured by a runaway hutch which had broken loose from an endless cable while descending a gradient. The accident was due to the wrong adjustment of a clip which attached the hutch to the cable, and which, if properly adjusted, would have had the effect of braking the hutch. The clip, the cable, the hutch, and all the fittings and apparatus were in proper condition, but the workman employed as "clipper" had failed through carelessness to adjust the clip properly as the hutch passed him.
Held (diss. the Lord Justice-Clerk) that the "clipper," to whose negligence the accident was due, was not a person who had been, in the sense of sec. 2 (1) of the Employers' Liability Act, 1880, entrusted with the duty of seeing that the plant was in proper condition, but an ordinary fellow servant of the deceased workman; and employers assoilzied.
Opinions per Lord Hunter and Lord Anderson that the circumstance that the hutch was not properly braked did not constitute a defect in the condition of the plant within the meaning of sec. 1 (1) of the Act, in respect that there was no defect in the apparatus itself.Opinions contra per the Lord Justice-Clerk and Lord Ormidale.
Andrew Robertson, miner, Wishaw, brought an action at common law and also under the Employers' Liability Act, 1880, in the Sheriff Court of Lanarkshire at Glasgow against the Kinneil Cannel and Coking Coal Company, Limited, for damages in respect of the death of his father, George Robertson, repairer, who had been fatally injured while in the employment of the defenders at their Furnace Yard Pit, Bo'ness.
The facts, as established by a proof which was led in the Sheriff Court, appear from the following findings in fact in the interlocutor of the Sheriff-substitute (W. J. Robertson) pronounced on 16th April 1929:"(1) That the pursuer is the son of the deceased George Robertson, and sues the defenders for solatium only in respect of his death, there being no case of dependency: (2) That the deceased met his death through accident while at work in the employment of the defenders, having been knocked down by a runaway hutch at the bottom of the Sea Dook in their Furnace Yard Pit, whereby he sustained fatal injuries, at or about 6.30 a.m. on 1st December 1926: (3) That the Sea Dook extends from the pit bottom for a length of 200 yards, and for the first 265 feet from the pit bottom there is a rising gradient varying from 1 in 52 to 1 in 32 feet, while at the summit there is a fairly level section, and thereafter a falling gradient increasing as the bottom of the Sea Dook is approached, and varying from 1 in 24 to 1 in 2 feet: (4) That there is a haulage way in said Sea Dook with a double line of rails, up which full hutches travel from the bottom of the Sea Dook to the pit bottom, where they are detached from the haulage and returned when emptied to the bottom of the Sea Dook, there to be detached and dispatched to the working face, the motive power being an endless wire cable, worked by an electric engine situated at the pit bottom and travelling at the rate of 136 miles per hour, and running round a horizontal terminal wheel at the bottom of the Sea Dook: (5) That the said hutches are attached to the cable by means of chains each 10 feet long, having at one end an eye and at the other a tension friction clip, and these chains are attached as follows, viz., each hutch has a heavy drawbar in the floor protruding at each end of the hutch and there forming a fish-tailed hook over which fish tail the aforesaid eye is slipped, while the aforesaid clip is clipped on to the cable so that the weight of the hutch pulls against the lever of the clip (6) That the hutches are attached upon the following system, viz., when returned empty from the pit bottom the clipper there stationed attaches the hutch by a chain on the front fish-tailed hook, affixing the clip to the cable as before described so that said chain will draw the hutch to the summit, and also affixing a chain on the rear hook with the clip reversed so that the rear chain, which is idle while the hutch is climbing to the summit, will serve to restrain the hutch when descending to the bottom of the dook; when the hutch arrives at the summit, the clipper there stationed takes off the front chain, pushes back the rear clip to tighten the rear chain, and the hutch proceeds to the bottom on that rear chain only; when the hutch arrives at the bottom, the two clippers stationed there detach the said rear chain, slew the hutch, and dispatch it along the level mine to be filled; when the full hutch returns to the clippers at the bottom, they clip it on to the ascending cable with the chain in front; when it reaches the summit, the aforesaid clipper there clips on a second chain at the rear, again on the reverse side to the forward clip as the full hutch proceeds to the pit bottom, and so onad infinitum: (7) That the dook was sufficiently lit by electricity, the haulage system is one in common use and conforms to the regulations under the Coal Mines Act, 1919, and was sufficiently inspected by the roadsman and reasonably safe apart from negligent user or defect in the way or gear, and as a matter of fact the way and gear were on the day of the accident in good condition and efficient: (8) That the mine is worked in three shifts, first, the morning shift from 6.30 a.m. to 2.30 p.m., second,the back shift from 2.30 to 10.30 p.m,, which are working shifts, and third, the repair shift from 10.30 p.m. to 6.30 a.m., during the last of which the haulage stands idle: (9) That at the end of the back shift empties are apt to be left standing on the haulage, and it was the duty of the clipper at the summit to satisfy himself that any hutches standing between the pit bottom and the summit were safely clipped on, as he proceeded to his station, while a similar duty lay on the clippers at the bottom of the dook, as they passed from the summit to their station: (10) That the clippers were lads about eighteen to twenty years of age, sufficiently capable and instructed in their duties, for which they were quite competent, and the said lads were fellow workmen of the deceased, any inspection by them being incidental to their duties as manual labourers: (11) That by section 43 of the Coal Mines Act, 1911, travelling on a haulage way when the haulage is in motion is prohibited (with certain exceptions which do not apply to this haulage way, which comes under the prohibition); and in satisfaction of the said statutory provision the defenders exhibited at the bottom of the Sea Dook a Notice, No. 23/1 of process, in the following terms, viz.:'No person to travel on the incline when haulage is in motion': (12) That at the end of the back shift on the night of 30th November Simon Paton, oversman, who was then also performing the duties of roadsman, who was on duty during the night or repair shift and at the beginning of the morning shift, and who was a person in the employment of the defenders delegated with authority from them and to whose orders the workmen, including the deceased, were bound to conform, ordered Gerald Robb and the deceased, two oncost men or repairers on duty during the said night shift, to dismantle a motor turbine pump which was in by from the foot of the Sea Dook, and install a compressed air pump in its place, and thereafter to bring the said turbine pump to the bottom of the Sea Dook, which orders these men carried out: (13) That about 6.15 a.m. the said Simon Paton came down the dook and found the said repairers at the bottom with the said pump, and then gave instructions to them to put it on a bogie, clip it on the cable, and see it to the pit bottom, that he instructed Robb to go up the dook with the bogie to the summit, and there have the haulage stopped by signal till the deceased joined him at the summit, after which both were to escort the bogie to the pit bottom: (14) That this operation was to be performed at the beginning of the morning shift, and the said repairers at or about 6.30 a.m. proceeded to carry out said orders; the bogie was clipped to the cable at the bottom of the dook, Robb preceded it up the haulage way, and the deceased remained behind on the plates at the bottom of the dook: (15) That these orders entailed the men travelling on the incline when the haulage was in motion, but in fact Robb alone did so, and nothing happened to him: (16) That the bogie and pump combined were less in weight
and smaller in dimensions than an ordinary hutch, and their passage created no danger or obstruction: (17) That the haulage was not stopped,i.e., completely cleared of hutches prior to the operation, but the circumstances were not such as to render this a necessary measure of prudence, as the clippers were at their posts: (18) That...
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Robertson v kinneil Cannel and Coking Coal Company
...with the duty of & that the plant was in proper condition; and employers found & in damages. (In the Court of Session 27th June 1930—1930 S. C. 935) Andrew Robertson, miner, Wishaw, brought an action at common law and also under the Employers' Liability Act, 1880, in the Sheriff Court of La......