Argued for the respondent—The Sheriff was right. (1) The respondent in going back to the shot was engaged in no business or pastime of his own, but strictly and literally in the business of his employer. It was much too strained a construction of the Act to suggest that because any one of over a hundred or more special rules of varying degrees of importance was broken the course of employment at once ceased. The course of employment continued until it could be substantially made out that when the accident occurred the person injured had forsaken his employment and devoted his attention to something else— Durham v. Brown Brothers & Company , December 13, 1898, 36 S.L.R. 190. The case of Smith v. Lancashire and Yorkshire Railway Co., ut sup. , was in pointed contrast to the present, and afforded a valuable illustration of what was meant by an accident arising out of the course of employment, (2) It was said that the respondent had been guilty of serious and wilful misconduct in not making himself acquainted with the special rules. But it did not appear that these rules had been affixed and exhibited in terms of the Coal Mines Regulation Act, and they were not binding until that had been done. The respondent was justified in not knowing the rules, and it would not do to say that he must be presumed to have known them, and to charge him with wilful misconduct in not observing them. Wilful misconduct was one thing, neglect or ignorance was another.
Lord M'Laren —Questions in the form stated in this case will in all probability come frequently before the Court. In answering these questions with reference to the facts of the present case, I desire as far as possible to avoid generalisation, because while it may be useful to state principles for determining whether a case of injury falls within the scope of the statute, this can only be done upon a larger induction of facts than we are at present possessed of.
I begin with the first question—Was the injury to the respondent caused by an “accident arising out of and in the course of the employment?”
Subject to what I shall have to say on the second question, I think it hardly admits of dispute that the injury complained of was the result of an “accident.” The respondent, rightly or wrongly, thought that the shot which he prepared had missed fire, and in that belief, and using his judgment as to the time he ought to wait, went forward to examine the shot-hole. While he was examining the hole with its charge, the charge exploded and caused the injuries for which the respondent seeks compensation. I am here repeating the facts as stated in the case, and I think that the statement is descriptive of an accidental injury.
But then in order to entitle the respondent to compensation, the accident must be one “arising out of and in the course of the employment,” and this condition is negatived if it appears that the injury was sustained when the workman was not engaged upon his master's business, but was going about the premises on some business or pastime of his own. On the facts of the present case it is clear that when the respondent went to examine the shot-hole he had no motive or purpose other than that of attending to his master's business. This would of course be true if he had waited for the period of thirty minutes prescribed by the rules of the mine, and I think it is not the less true because the respondent, without intending to break any rule, returned to his work without waiting thirty minutes. It may be granted that the respondent ought not to have proceeded to examine the shot-hole after so short an interval as six minutes, yet as it results from the statement of facts in the case that the respondent did not know the rule, and that he acted according to the best of his judgment in the matter, it appears to me that the accident was one arising out of the employment which the respondent was exercising, not perhaps in the right way, but according to his own understanding and belief as to the nature of his duties.
If a workman, in the knowledge of a rule framed for the protection of himself and his fellow-workman, disregards the rule and is injured, a different question would
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Coming now to the second question, I notice that in sub-sec. ( c ) the word “accident” is not used—the expression used is “that the injury to a workman is attributable to the serious and wilful misconduct of that workman.” I conclude from this that according to the theory of the statute the injury is not regarded as accidental if it is attributable to the serious and wilful misconduct of the person injured, and that the case considered in sub-section ( c ) is rather an alternative to the principal enactment than an exception from it. Of course there may be misconduct having no relation to the employment, but resulting in bodily injury, and with such cases it is easy to deal. There is more difficulty in a case such as this, where the alleged misconduct consists in a breach of a material condition of the contract of employment, to which breach the injury is attributable. As already said, I consider that the respondent committed a breach of his contract in going to examine the shot-hole only six minutes after the fuse had failed to take effect, because he ought to have known the rule, and his omission to inform himself in a matter affecting his own safety, and probably the safety of other workmen, was in a sense misconduct. But in my judgment it was not serious and wilful misconduct, because it is consistent with all the facts stated in the case that the respondent believed it was left to his own judgment as a miner to determine how long it was necessary to wait before examining the shot-hole. In this connection I am disposed to give some weight to the finding that the rule in question was not generally observed in the mine, and that it was the practice of the miners “to return to a a delayed or a missed shot whenever they thought in their opinion that it was safe so to return.” Now, this general neglect of the rule rather suggests the absence of proper supervision. In any view,’ the respondent was not put on his inquiry as to the existence of a definite rule, and if he only followed the practice which he found existing in the establishment, his fault would not, even by a strict disciplinarian, be classed as serious and wilful misconduct.
I therefore propose that we should answer both questions in the affirmative, and remit to the Sheriff to make an award of compensation in terms of the findings set forth in the case.
Lord Kinnear —I am of the same opinion. I agree with Lord M'Laren that the answer to the first question must depend upon whether at the time of the accident the man was engaged in his employer's business or in some business or pastime of his own. That is just the distinction which has been taken in a series of cases as to the liability of an employer for an accident caused by his servant, and the meaning of the words used by the statute must he the same whether the question involves the liability of the employers to a third person or his liability under the statute to his own workmen. It is a question of fact whether according to the ordinary use of language the man was at the time of the accident in the course of his employment or not, and for the reasons already given by Lord M'Laren I am satisfied that in this case the accident did so arise.
Upon the second question I think it might very well be that a miner's disobedience to the special rules of the mine might amount to serious and wilful misconduct, and it may be that if he were in fact ignorant of the particular rule which he had broken, the case might come under that definition, if his ignorance of the rule were owing to serious and wilful misconduct. But then I do not think that any such case is raised upon the facts stated by the Sheriff. All that appears from what the Sheriff has found is that this man's ignorance of the rules may have been innocent, or may have been due merely to negligence, and in neither case would it in my opinion be wilful misconduct. The Sheriff says that as matter of fact he did not know the rule. He says also, as Lord M'Laren has pointed out, that the rule was not generally observed by the miners in this pit; and then he makes a statement as to the method in which the rules were made public, from which I think it impossible to infer that any ignorance on the part of the miner must necessarily have been owing to his misconduct. I think if the question were whether the respondent in this appeal were negligent or not in failing to inform himself of the rules, we should not be in a position to determine it without more specific information than the Sheriff has
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Lord Adam , who was absent from the debate, intimated that the Lord President who was absent from the advising, had had the opportunity of considering Lord M'Laren's opinion and concurred therein.
The Court answered both questions in the affirmative and remitted to the Sheriff to make an award of compensation in terms of the findings set forth in the case.
Counsel for the Appellants— D-F. Asher, Q.C.— J. Wilson. Agents— Anderson & Chisholm, Solicitors.
Counsel for the Respondents— Shaw, Q.C— Scott Brown. Agents— Mitchell & Baxter, W. S.