Scottish Court of Session Decisions

The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), sec. 1 (2) (c), enacts—“If it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall be disallowed.”

Page: 599↓

In an appeal from the Sheriff Court at Dumbarton in an arbitration under the Workmen's Compensation Act 1897 between James M'Groarty, holder-on, 3 Burnbank Place, Yoker, appellant, and John Brown &Company, Limited, engineers and ship-builders, Clydebank, respondents, the stated case gave the following facts as proved:—“1. That the appellant entered the employment of respondents on Monday, 18th September 1905, and wrought on the night-shift till Friday, 22nd September 1905.

2. That the appellant is a holder-on, and during that time was engaged on the ss. ‘Carmania,’ then in course of construction.

3. That on the night of 22nd September 1905 the appellant worked on the night-shift from 6 o'clock till 9:30 p.m., when he left the yard. He returned to the yard shortly before 10 p.m. the worse of drink.

4. That his condition was observed as he passed through the check office by the respondents' foreman Shields, part of whose duty it was to watch the men coming in.

5. That Shields immediately reported appellant's condition to his under foreman Davis, and directed him to follow the appellant.

6. That the foreman Davis immediately followed the appellant and came up with him on board the ss. ‘Carmania’ at the , place where he had been working, and just as he was about to resume work.

7. That the foreman Davis thereupon ordered the appellant to leave his work, and told him to go home in consequence of his drunken condition.

8. That the appellant was drunk and unfit to work.

9. That the foreman Davis acted rightly in ordering the appellant to leave.

10. That the appellant thereupon left the place where he had been working previously, and proceeded to go home.

11. That a few minutes later the appellant was found injured at the bottom of a ladder on board the ss. ‘Carmania.’

12. That such injury took place after the appellant had been ordered to discontinue his work.

13. That the ladder in question was quite safe and suitable for the ordinary use of sober workmen.

14. That the accident to appellant happened solely through appellant being drunk and unfit to work, and was not attributable to the negligence of the respondents.”

The Sheriff-Substitute ( Blair) held on these facts that the appellant having been injured in consequence of his being drunk and unfit to work, that was serious and wilful misconduct on his part within the meaning of the Act, and assoilzied the respondents with expenses.

The following question in law was submitted for the opinion of the Court:—“Whether the fact of the appellant being drunk and unfit to work, and the accident having happened in consequence thereof, constitutes serious and wilful misconduct within the meaning of the Act.”

Argued for the appellant—The appellant had worked from 6 p.m. to 9:30 p.m., and during that time he was perfectly sober. The arbiter had made no findings as to what had happened to the appellant during his absence. Facts might have been proved which would have excused him. There were various degrees of intoxication, and such facts might have shown that the appellant's conduct was excusable and did not constitute serious and wilful misconduct in the sense of the Act.

Counsel for respondents were not called on.