Scottish Court of Session Decisions

This case is reported ante ut supra.

Isabella Simpson or Hendry, wife of Robert Hendry, miner, Shettleston, executrix-dative of the deceased Mrs Marion Wilson or Simpson, widow, residing there, claimed compensation under the Workmen's Compensation Act 1906 from the United Collieries, Limited, Uddingston, in respect of the death of her (Mrs Simpson's) son Alexander Simpson.

The Sheriff-Substitute ( Thomson) assoilzied the defenders, and at the request of the claimant stated a case for appeal.

The Case stated:—“(1) That the deceased Alexander Simpson, who was a miner in respondents' employment, sustained on 9th July 1907 an accident on respondents' premises, from the effects of which he died four days later. (2) That he was survived by his mother Mrs Mary Wilson or Simpson (who was partially dependent upon him) for thirteen weeks, viz., till 16th October 1907, when she died without having made any claim against the respondents for compensation in respect of his death, and that the appellant now claims as her executrix what was due to Mrs Simpson under the said Act as compensation in respect of

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her partial dependency upon her deceased son.… (4) That the accident to the deceased Alexander Simpson occurred in the following circumstances. The deceased, who was a miner at the face, had finished his work for the day underground, and had been raised to the pithead, from which he had to make his way home. (5) The exit provided by the respondents lay down the steps from the pithead, around the back of the boiler-house, and then along a track between an ash-heap and a siding for waggons going to and from the boiler-house. This track led to Maryville station, where, in order to reach the platform, it was necessary to cross a ‘deadend’ of a single line of rails belonging to and on the property of the North British Railway. This exit from the works was known as the firehole road. The track was kept clear by the respondents for the use of the men, and was the recognised exit for them to use. (6) The deceased, however, on the day of the accident, instead of taking the firehole road, turned in the opposite direction at the pithead, crossed from the edge of the pithead along a gangway formed for hutches carrying ‘dirt’ to a dirt-bing, and got on to the dirt-bing, crossed the bing and went down a steep and very rough track, not formed in any way but worn down into uneven steps, his intention being to proceed to the Maryville Station. (7) The slope is steep, and in wet weather very slippery, and the deceased when he had nearly reached the foot of the slope slipped and fell against some waggons which were being shunted along the siding, which is close to the foot of the slope, with the result that his head was severely injured, his injuries proving fatal on 14th July 1907. (8) The distance from the pithead to the locus of the accident is 155 yards by the route taken by the deceased. The distance from the pithead to the station by the dirt-bing is 345 yards, and by the firehole road 335 yards. There was considerable danger in going by the dirt-bing and the sidings, as the deceased must have known. The only advantage in going that way was that the railway signals could be seen, and the men could tell from the signals whether they were in time for their train or required to hurry. As a consequence, men who were short of time occasionally took this route. Its use was neither sanctioned nor expressly prohibited by the respondents. In these circumstance I found that the accident to the deceased did not arise out of and in the course of his employment, and I therefore assoilzied the respondents with expenses.”

The questions of law included the following:— “Whether in the circumstances stated the Sheriff was right in holding that the accident to the deceased Alexander Simpson did not arise out of and in the course of his employment.”

Argued for appellant — Esto that the question was one of fact the Court was entitled to review the finding where as here it was not consistent with the evidence — Sneddon v. The Greenfield Coal & Brick Co., Ltd., February 10, 1910, 47 S.L.R. 337.

The deceased was entitled to use the exit he followed, for its use was not forbidden, and where that was so the existence of the path was an invitation to use it— Gavin v. Arrol & Co., February 22, 1889, 16 R. 509, per Lord President at p. 514, 26 S.L.R. 370. The deceased was on his employers' premises, for under the Coal Mines Regulation Acts ground adjacent to a mine was part of the mine, and they were bound to see him safely off them. The mere fact that the deceased was leaving the mine by a way other than that usually used did not entitle the arbiter to find that he was not in the course of his employment— M'Kee v. Great Northern Rly. Coy., May 7, 1908, 1 Butterworth's Compensation Cases 165.

Counsel for respondents were not called on.