April 26, 1918.

THE COLLIERY GUARDIAN

849

SOME RECENT DECISIONS UNDER THE
WORKMEN’S COMPENSATION ACT.

[Specially Contributed.]

Accidents Arising from Breach of Colliery Regulations.

A case which the county court judge described as one
which had caused him the greatest anxiety and difficulty
went to the Court of Appeal, and has since been reported
at length :—Maydew v. Chatterley-Whitfield Collieries
Limited (117 L.T.Rep. 460). The county court judge
found that an accident caused by disregarding a colliery
regulatipn was not “ an accident arising out of, and in
the course of, the employment ” within the meaning of
the Workmen’s Compensation Act, 1906. That decision
was affirmed in the Court of Appeal, and both as regards
the facts and the questions of law, the case is one of
considerable interest and importance, and demands
attention. The material facts were that the workman
was a youth employed in the colliery as a horse driver,
his duty being to walk beside the coal tubs and use a
pole which he carried for the purpose of scotching the
wheels. In driving a number of loaded tubs through a
cutting or subsidiary way, he rode on the top of one
of them, contrary to one of the general colliery regu-
lations made in pursuance of section 86 of the Coal
Mines Act, 1911. He had no reins, and the horse was
not controlled. He carried a lamp which enabled him
to observe the various rises and falls of the roof, but
as the result of a jerk the lamp went out, and as the
youth, according to his evidence, did not think it advisable
to stop the horse in order to get off, he continued to
ride on the load. He struck against the lower bar of
the roof, was thrown off*the truck, and suffered a frac-
tured spine. The particular regulation infringed provides
that no person below ground shall ride upon any animal,
nor, except by permission of the manager or under-
manager, on any tram, tub, or other contrivance drawn
by a horse or other animal. When this accident happened
the tubs were on an incline downwards, and the youth
was afraid that if he called on the horse to stop the
tubs would run on to the animal. He could not use
his pole in the ordinary way, as he would have been able
to do if he had been walking, the purpose served by
the pole being to insert it through the spokes of a .wheel
and thus put a sort of brake on the tubs. According to
the county court judge, the main issue between the parties
was whether the youth knew that in riding on the load
he was doing something prohibited by the rules of the
colliery. If he did know it, the judge considered that
the course would be clear, as the case would then be
practically identical with that of Barnes v. Nunnery
Colliery Company ([1912] A.C. 44; 105 L.T.Rep. 961),
in which case a youth who was injured in much the same
way, admitted that he knew that he was riding on a
load contrary to the regulations, and that he was doing
what was wrong. In this case the county court judge
considered that the evidence was so strong either way,
that the matter was left in doubt, and although he gave
an award in favour of the employers, he did not do
so on the ground that he decided this particular issue
in accordance with their contention, but on the ground
that in such circumstances the onus is on the workman to
prove his case, and that in this instance he had failed
to do so. In this connection reference was made to the
case of Richardson v. Denton Colliery Company Limited
(109 L.T.Rep. 370), in which the practice, of riding on
trucks was not allowed except by permission. of the
manager, but though it had not in fact been sanctioned in
the part of the mine where the accident occurred, the
fireman in charge thought it had been, and allowed it,
with the result that the injured workman obtained com-
pensation. But for the appeal decisions by which he
considered himself bound, the county court judge would
have been in favour of finding that in this case the acci-
dent arose both “ out of, and in the course of, the employ-
ment,” though the decision might have been qualified by
the further finding that the workman had been guilty of
“serious and wilful misconduct,” which under the Act
debars from compensation except when the accident results
in death or fatal and permanent disablement. As it was,
the judge simply found that the workman had done some-
thing which put him outside the scope of his employment
by taking upon himself a risk which his employers had
never contemplated as part of his employment. With
regard to the legal aspect of the case as distinguished
from the facts, some points in the Court of Appeal
judgments are worth noting. Lord Justice Swinfen Eady
described as the first and most useful test to apply, that
which Lord Dunedin applied in Plumb v. Cobden Flour
Mills Company ([1914] A.C. 62; 109 L.T.Rep. 759) :—
“ Did the order which was disobeyed limit the sphere of
the employment, or was it merely a direction not to do
certain things, or to do them in a certain way within the
sphere of the employment? ” His lordship was of
opinion that in this case the order which was disobeyed—
the order not to ride on the tubs—distinctly limited the
sphere of the employment, and that there was evidence
to justify the county court judge in coming to the con-
clusion that the workman had failed to establish that
the accident arose “ out of ” the employment. In a case
to which the county court judge referred, Barnes v.
Nunnery Colliery Company Limited, Lord Atkinson said :
—“ The unfortunate deceased in this case lost his life
through the new and added peril to which, by his own
conduct, he exposed himself, not through any peril which
his contract of service, directly or indirectly, involved,
or at all obliged him to encounter. It was not, there-
fore, reasonably incidental to his employment. That is
the crucial test.” Lord Justice Swinfen Eady was of
opinion that in this case also such a test disclosed a new
and added peril, rather than one involved in the contract
of service, and reasonably incidental to the employment.
His lordship also referred to the case of Herbert v.
Samuel Fox and Company Limited ([1916] A.C. 405;
114 L.T.Rep. 426) as one analogous to that under con-
sideration. In giving judgment in it, Lord Atkinson said
that the rule which was in question had another and
entirely different function—to fix the limits of the
sphere of employment. That, said Lord Justice Swinfen
Eady, was the contention in this case, namely, that the
rule prohibiting workmen from riding on the tubs not
only limited the sphere of their employment, but put
them outside the sphere of their employment, as they
were not employed to get on the tubs at all. The follow-
ing passage was quoted from Lord Atkinson’s judgment :
—“ If an employer employs a workman to do a particular
kind of work in an ‘ indicated ’ place, and prohibits him
from doing a different kind of work in quite another
place, the doing of the prohibited work in the prohibited
place is not merely wilful misconduct depriving him of
the right to compensation, for the simple reason that he
never had any right to compensation at all, since the

prohibition placed the latter work outside the sphere of
his employment. If ever there was a case in which the
act, in the doing of which the accident occurred, was
outside the sphere of the workman’s employment, it was,
I think, this case. He was in a place in which he had
been forbidden to be, and had no right to be.” In the
case referred to, the workman was riding on the buffer
of a truck when he ought to have been walking in front
of the truck. “ He was thereby,” Lord Atkinson added,
“ knowingly exposing himself to risks not reasonably inci-
dental to his employment, risks which neither he nor
his employers contemplated that he would run, risks
which his employer forbade him to run, new perils added
by his own rashness.” That, said Lord Justice Swinfen
Eady, was entirely applicable to the case under considera-
tion. There was a rule prohibiting the workman from
incurring the risk he incurred, and in addition he placed
himself in a position in which he was unable to perform
the duty he was engaged to perform—he could not
regulate the progress of the tubs when going down an
incline. A special aspect of the case was referred to
at some length by Lord Justice Bankes. The county
court judge, he said, had devoted a great deal of his
judgment to considering whether or not the applicant
knew that riding on the tubs was forbidden. That, no
doubt, would be, or might be, a very material considera-
tion i’f the rule had been a colliery rule, properly so
called, in which case it might either be a term of the
original contract with the workman, or a matter which
might have been brought to his attention, and might
be relied upon as limiting the sphere of his employment,
although not an original term of his contract. But it
seemed to his lordship that those considerations had no
application in the case of a rule which, as in this case,
was a statutory regulation, this particular regulation,
25 (a), being one of the General Colliery Regulations made
by the Secretary of State under section 86 of the Coal
Mines Act, 1911. In such a case the workman was bound
by the regulation, and it seemed to his lordship that the
onus lay upon the workman of showing that he had the
permission indicated in the regulations—that was to say,
the permission of the manager or the under-manager to
ride upon the tubs. The workman failed to establish
that there had been such permission, and was therefore
bound by the regulation. It had been contended for the
workman that, assuming the regulation to be binding,
it was not one which limited the sphere of the workman s
employment to driving in accordance with the regulations,
but was merely a direction to the workman as to how
he should perform his duty as a driver, a breachof
which merely amounted to misconduct, and that the case
fell within the line of decisions of which Blair and Com-
pany Limited v. Chilton (113 L.T.Rep. 514) is the
principal, and not within the line of decisions of which
Barnes v. Nunnery Colliery Company Limited, and
Herbert v. Samuel Fox and Company Limited are illus-
trations. Lord Justice Bankes, however, was unable to
distinguish the facts of the present case from_ those of
the last mentioned case, which was later in date
the Nunnery Colliery case, and seemed to his lordship
to be a direct authority that the regulation m q^ion
is one of a class limiting the sphere of employment.
Lord Justice Warrington was also of. opinion that the
case was governed by that of Herbert v. Samuel Fo
and Company Limited, and that the workman did not
merely do in In improper way that which he was employed
to do, but did something which was outside, the sphere
of his employment. He thought that the effect of
statutory regulation was to make it	fo*

colliery to employ, or for the workman to engage to do,
that which would involve a breach of the regulation , in
other words, that the effect of the rule was to exclude
from the sphere of a workman s employment the doin„
of that which was prohibited by the rule. Consequently,
the only wav in which the applicant could have got
himself outside the effect of the regulation would have
been to establish that what he was doing was done by
the permission of the manager or the under-manager, but
that be had failed to do. It mav be mentioned that
sub-section (4) of section 86 of the Coal Mmes Act, 1911,
provides that “an order made under this ^section • • • •
shall have effect as if enacted in this. Act. that sectio.
88 provides for a copy of the regulations being supplied
to every employee, and that section 80 provides penalties
for breach of the regulations.

Bunkering at Calcutta.—A notification has been received
from the Indian Coal Controller, through the Calcutta
Chamber of Commerce, relating to the bunkering o
steamers in the port of Calcutta. By this notice all
bunkering contracts are cancelled, and the Governmen
will supply coal to all steamers carrying the British flag.

The Pentre Mountain Landslide.—The explanation which
is being put forward by Messrs Cory Brothers and Com-
panv Limited, relative to the Pentre Mountain landslide,
is that the slide commenced at the foot of the quarry
spoil bank by the swampy subsoil sliding down, followed
by a movement of more subsoil and quarry refuse. As
a~T’esult. sunport was withdrawn from the toe of the
colliery tip, and probably from the edge of the floor of
the quarry. The prime movement was the natural move-
ment of the swampv subsoil just below the main level
drainage, and was irrespective of the quarry subsoil or
quarry tip. The case is still before the Chancery Court.

The Ceramic Society.—The fourth meeting. of the
Refractory Materials Section of the Ceramic Society will
be held in the Mappin Hall of the Sheffield University,
St. George’s-square. Sheffield, on Tuesday and Wednesday,
Mav 14 and 15. The agenda includes the following:—
“The Supplies of Refractory Materials Available in the
Sheffield District,” bv Prof. W. G. Fearnsides; “Notes
on the Evolution of the Ganister Industry in the Sheffield
District.” by Mr. J. Holland: “ The Constitution of Silica
Bricks,” also “ A Micro-Study of Magnesite Bricks,” by
Dr. A. Scott: “The Essential Properties of Refractories
used in Steel Production.” by Mr. Alleyne Reynolds:
“ An Advance Towards Greater Economy of Fuel and
Increased Output in the Deadburning of Magnesite, and
Dolomite and the Burning of Cement,” by Mr. E..Steiger;
“ Silica Refractories and the Materials Used in Their
Manufacture,” also “ On Refractory Materials Derived
from Bauxite (Fused and Crystalline).” by Prof. A. Bigot;
“ Refractories in Gas Works from a User’s Point of View,”
bv Mr. J. P. Leather: “ First Report of Committee on
the Standardisation of Methods of Testing,” by Dr. J. W.
Mellor: “Note on Electric Furnace Treatment of Refrac-
tories,” by Dr. R. S. Hutton; and “ A Note on a Firebrick
from the Crown of an Electric Steel Furnace,” by Mr.
W. J. Rees.

MINING INDUSTRY AND MILITARY SERVICE.

Mr. Wm. Straker, secretary of the Northumberland
Miners’ Association, has notified the lodges that he
has been informed by the National Service representa-
tives that a few men at some collieries who have been
balloted into the quota and who had received notice
to report themselves for medical examination, had
not done so. If they still neglect to report them-
selves, they will be called up for active service, but,
meanwhile, other men at their collieries, who had not
been balloted into the quota, will be called upon to
fill their places. It will not, however, save the men
who should have presented themselves as directed.
Men who have not received notice to report for
medical examination should wait until they receive
notice. While men may be summoned for medical
examination in different order to that shown on the
ballot return at the colliery, they will be called up
for active service only in accordance with the order
of the ballot.

During the hearing of appeals of miners at Benfield-
side Military Tribunal, it was elicited that, in certain
cases, young fellows had been balloted for active
service who had several brothers in the Army, or
whose brothers had been killed or wounded; in other
cases such young men were the sole support of
widowed mothers. Applicants stated that they had
never been questioned as to their domestic circum-
stances. Mr. W. D. Reed strongly condemned the
method of balloting which allowed some families to
send all their sons into the Army while others escaped
scot-free. The men were granted exemption until
July 31.

At Stanley Tribunal meeting, a letter was read from
the executive committee of the Durham Miners’ Asso-
ciation intimating that it was powerless as to lads
of from 18 to 25, the military authorities having,
apparently, overruled the promise given to the Miners’
Federation.

At a session of the Lanchester Tribunal, two of
the members held that they could not interfere with
the result of the ballot, but other members maintained
that, as the men had been instructed to appeal in
cases of personal hardship, the tribunal would be
within its rights in granting exemption in such cases.
In 22 of the 34 cases subsequently heard, the tribunal
declined to interfere with the result of the ballot,
and in seven cases ordered an adjournment, either
for medical examination, or because the men had not
yet been drawn in the ballot. The case of a lad of
19, three of whose brothers had joined up, was con-
sidered and adjourned for medical examination.

COAL PRODUCTION AND LABOUR DURING
THE WAR,

Mr. Finlay A. Gibson, secretary of the Monmouth-
shire and South Wales Coal Owners’ Association, has
prepared a comparative table (summarised below)
showing the output of coal and number of persons
employed per annum in each inspection division, at
mines under the Coal Mines Act from 1913 to 1917
inclusive, and the percentage of increase or decrease
comparing the years 1914, 1915, 1916 and 1917 with the
year 1913.

United Kingdom—	Output.  	A			Total persons employed.* 	 A	
	Tons.	P.c?	No.	P.cJ
1913 		287,411,869 ...	—	. 1,127,890 ..	
1914+		265,643,030 ...	- 7 7	. 1,133,746 ..	—
1915 		253.179,446 ...	-12 ..	. 953,642 ..	7 -15
1916 		256,348,351 ...	-11 ..	.. 998,063 ..	. -11
1917 		248,473,119 ...	-13 ..	. 1,021,340 ..	. - 9
South Wales—				
1913’		56,830,072 ...	—	. 233,134 ..	—
1914+		53,879,728 ...	- 5	. 234,117 ..	—
1915 		50,452,600 ...	-11 ..	. 202,655 ..	-13
1916 		52,080,709 ...	- 8 ..	. 214,100 ..	. - 8
1917 		48,507,902 ...	-15 ..	. 219,718 ..	. - 6
Scotland—				
1913 		42,456,516 ...	—	. 147,549 ..	—
1914f		38,847,362 ...	- 8 7	. 146,168 ..	’. - 1
1915 		35.596,856 ...	-16 ..	. 121,854 ..	. -17
1916 		36,094,631 ...	-15 ..	. 127,104 ..	. -14
1917 		34,245,744 ...	-19 ..	. 130,027 ..	. -12
Northern—				
1913 		58,675,687 ...	—	.	247,011 ..	—
1914f		52,384,487 ...	-11 7.	. 248,251 ..	—
1915 		47,030,285 ...	-20 ..	. 184,124 ..	’. -25
1916 		47,270,124 ...	-19 ..	. 191,338 ..	. -22
1917 		43,228,230 ...	-26 ..	. 195,188 ..	. -21
York & N. Midland-				
1913 		72.951,841 ...	—	. 257,252 ..	—
1914+.....		66,807,623 ..	- 8 7.	. 260,870 ..	: +1
1915 		67,504,130 ...	- 7 ..	. 229,072 ..	. -ii
1916 		68,005,505 ...	- 7 ..	. 239,331 ..	. - 7
1917 		69,128,836 ...	- 5 ..	. 244,329 ..	.. - 5
Lancashire & N. Wales—				
1913 		28,130,845 ...	—	. 123,927 ..	—
1914+		26,200,447 ...	- 7 7	.	123,909 ..	—
1915 		24,923,976 ...	-11 ..	. 105,670 ..	-15
1916 		24,907,938 ...	—11	111,052	—10
1917 		25,204,560 ...	-10 ..	. 114,008 7	7 - 8
Ireland—				
1913 		82,521 ...	—	770 ..	—
1914f	:		92,400 ...	+ 12 .7	793 ..	: + 3
1915			84,557	+ 2	739	— 4
1916 		89,833 ...	+ 97	7	767 7.	’. - 3
1917 		95,646 ...	+ 16 ..	863 ..	. +12
Midland & Southern	—			
1913 		28,284,387 ...	—	. 118,247 ..	—
1914+		27,430,992 ...	- 3 7.	. 119,638 ..	’ + 1
1915 		27,587,042 ...	- 2 ..	. 109,528 ..	. - 7
1916 		27,899,611 ...	- 1 ..	. 114,371 ..	. - 3
1917 		28,062,201 ...	- 1 ..	117,207 ..	.. - 1

* Including those on sidings at the pits, on private branch
railways and tramways, and in washing and coking coals.

t The number of men shown is the number employed
from January 1 to July 31, 1914.

Sir Charles H. Seely, M.P. for the Mansfield Division,
who is prominently connected with the Babbington Colliery
Company, and Major T. P. Barber, D.S.O., of Lamb
Close House, Eastwood, of the colliery firm of Messrs.
Barber, Walker and Company, have been appointed
Deputy Lieutenants of Nottinghamshire by the Duke of
Portland.