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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Goslan v. James Gillies & Co. [1906] ScotLR 44_71 (03 November 1906) URL: http://www.bailii.org/scot/cases/ScotCS/1906/44SLR0071.html Cite as: [1906] SLR 44_71, [1906] ScotLR 44_71 |
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Page: 71↓
[Sheriff Court at Glasgow.
The duty of a workman employed as clerk and bookkeeper was to weigh articles which it was the duty of others to carry to the weighing-machine. Held that an accident which caused personal injury to him while engaged in helping to carry a heavy piece of metal work to the weighing-machine, was an accident “arising out of and in the course of the employment” in the sense of section 1 (1) of the Workmen's Compensation Act 1897.
Per Lord Kinnear—“Imay add that I assent to the doctrine which we are told was laid down by the English Courts in the case of Losh v. Evans & Company, Ltd., 1902, 19 T.L.R. 142, that where the master has divided the work into certain spheres, and one man steps out of his own class and undertakes to do work which he was not fit for and
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which was not entrusted to him—as where an unskilled labourer undertakes to do the work of a skilled workman—he does not satisfy the conditions of the first section of the statute. But that is a totally different case from the one with which we are dealing.”
Mrs Margaret Kean or Goslan, 636 Gallowgate, Glasgow, claimed from James Gillies & Company, brewers' engineers, 140 Glenpark Street, Glasgow, the sum of £234 under the Workmen's Compensation Act 1897 as compensation for the death of her husband. In an arbitration under the Act in the Sheriff Court at Glasgow, the Sheriff-Substitute (Boyd) granted absolvitor on September 14th 1906.
She took an appeal by stated case.
The facts as given in the case were—“(1) That the appellant is the widow of the late James Goslan, who was employed at the respondent's premises at 140 Glenpark Street, Glasgow, which are a factory within the meaning of the Workmen's Compensation Act 1897, and was wholly dependent upon the earnings of the said James Goslan, deceased, who is also survived by a son sixteen years of age, who earns 4s. a-week, and who was partly dependent on the earnings of the said deceased, his father. (2) That the deceased's earnings for the three years next preceding his death were at the rate of 30s. per week. (3) That the deceased was employed as clerk and bookkeeper, and as such it was his duty to weigh and record all articles sent out on order from the premises of the respondents; his duty in this respect was confined to weighing the articles which it was the duty of other employees to carry to the weighing-machine; that it was also his duty to count, weigh, and pack brass bushes for the bungholes of barrels, and this occupied him about three hours once a fortnight. He also kept under his care in a locked drawer in his employers' office the screws of the patterns of the moulding machine, and it was his duty to alter these when necessary three or four times in a month. (4) That on Thursday, 3rd May 1906, a brass frame weighing 3 cwts. 1 qr. 9 lbs. had to be weighed, and the deceased was helping to carry it from the engineering shop to the weighing-machine when he slipped and fell back and grazed the shin of his left leg against the edge of the frame; that he took no notice of the bruise until the Tuesday following, when a doctor was consulted, but by that time acute blood poisoning had set in, and he died on 15th May 1906.”
The Sheriff-Substitute's finding was—“I found that his occupation at the time of the accident was gratuitous, and not in the course of his employment, and therefore I assoilzied the respondents and decerned, but in the circumstances found them liable in expenses in respect that I thought the respondents were greatly to blame in refusing the applicant access to their yard to make inquiries of the workmen as to the accident, and that free access would have resulted in a conviction on the part of the appellant that the deceased was not acting in the course of his employment at the time of the accident, and would therefore have rendered litigation unnecessary.”
The questions of law for the opinion of the Court were—“(1) Whether the accident to the deceased James Goslan arose out of and in the course of his employment? (2) Whether the respondents are liable in the circumstances as found to pay compensation to the applicant in accordance with the provisions of the Workmen's Compensation Act 1897?”
Argued for the appellant—The Sheriff was in error in finding that the operation which caused the deceased's death was outwith the scope of his employment. If the operation which caused the injury was incidental to the workman's employment, or arose from emergency, then he was covered by the statute— Menzies v. M'Quibban, March 13, 1900, 2 F. 732, Lord President Kinross at p. 734, 37 S.L.R. 526; Keenan v. Flemington Coal Company, Limited, December 2, 1902, 5 F. 164, 40 S.L.R. 144; Lynch v. Baird & Company, Limited, January 16, 1904, 6 F. 271, 41 S.L.R. 214; Rees v. Thomas [1899], 1 Q.B. 1015; Blovelt v. Sawyer, [1904] 1 KB 271.
Argued for the respondents—This man was a clerk and book-keeper, and had nothing to do with the carrying of goods, so that the accident could not be said to “arise out of” his employment. He had clearly travelled outwith the scope of his employment— Losh v. Richard Evans Company, Limited, [1902] 19 T.L.R. 142. Further, it was no case of emergency. The emergency necessitating interference must be proved, and that had not been done here. There was really no element of emergency to entitle him to go outside his own sphere— Lowe v. Pearson, [1899] 1 QB 261, A. L. Smith (L.J.) at 263. The case of Menzies v. M'Quibban, cit. sup., was distinguished by the finding there that the foreman could have ordered the workman to do what he was doing when the accident causing the injury occurred. The statute therefore did not apply, and the questions should be answered in the negative and the appeal dismissed.
Page: 73↓
Now, on the first of the findings which I have read, it would seem that it was no part of the duty for which Goslan was engaged, to assist in carrying heavy articles to the weighing machine. On the other hand, I think we may take it as a matter of common knowledge that when heavy articles are to be carried from place to place in a manufacturing establishment, it may be necessary that the men who take them off the machines should have some extra assistance to lift the load from one apartment or place to another, and in such cases, as you do not have a reserve of idle men kept on the premises, some one whose duties lie nearest to those of the men who are bound to do the work, would naturally be called in to help them. I assume, in the absence of any statement to the contrary, that additional assistance, at least to the extent of one person, was needed for carrying this brass frame to the weighing machine, and that being so, it seems to me that the man who had charge of the weighing-machine, and to whom the frame was to be carried to perform the next operation upon it, was the most likely person and the most suitable person to apply to in order to give assistance. Now, I cannot see that in giving the assistance which Goslan did he was in any way travelling beyond the scope of his employment, or that he can be represented in any reasonable sense as going outside the scope of his employment. I think, on the contrary, he was in the course of his employment, because he was assisting his neighbours to do something that was necessary to enable him to weigh the frame.
It has often been said in this class of cases that it is a material consideration whether the man whose action is in question had intervened for the purpose of promoting his employer's interests or merely to relieve a fellow workman. In one of the cases quoted to us ( Menzies v. M'Quibban, 1900, 2 F. 732) I see I am reported to have said—“We are familiar with the principle of common employment as used in the limitation of claims, and this principle may also be invoked to aid the interpretation of the statute, because impliedly each workman, besides having to perform the special work for which he is hired, owes something to the community of fellow-workers, and must be helpful according to his experience where the necessity arises.” It was a need of intervention in that case, which was the case of a person assisting an engineman to put a belt on a pulley. Now, whether you describe the occurrence as a case of necessity as I have done in this passage—perhaps necessity is not the most appropriate word — or whether you call it an emergency or a proper occasion, is not of much consequence except for accuracy of definition, because in each case we have to consider, apart from definition, whether the thing done was a reasonable extension of the man's ordinary duties, and such as a master or his overseer might reasonably have required the man in question to perform. I think if this weighing clerk had refused to give a hand in lifting articles which were to be weighed, he would not only have been doing a disobliging act, but if this came to the knowledge of his immediate superior he might perhaps have been classed amongst people who were troublesome, and would have to be got rid of at the first opportunity. But it is not necessary to go so far as that, because I am content to support the claim of compensation on the ground that what was done, although beyond what the deceased was specially hired to perform, was still within the scope of his employment, and was a reasonable act done in the furtherance of the employers' interests. I therefore suggest to your Lordships that we should remit this case to the Sheriff to assess the compensation.
The ground for rejecting this claim comes to a very narrow point. If I understand counsel for the employers aright, his position was that if an emergency had arisen which called for the intervention of the workman, the accident would have been within the scope of the Act, but that the principle which in that case would have entitled him to compensation is inapplicable if he intervenes on a reasonable occasion for giving his assistance. I cannot say that I see any sufficient ground for that distinction. It seems a narrow understanding of the contract of employment to say that he went beyond his duty in giving a helping hand to the others.
I may add that I assent to the doctrine which we are told was laid down by the English Courts in the case of Losh v. Evans & Company, Limited, 1902, 19 T.L.R. 142, that where the master has divided the work into certain spheres, and one man steps out of his own class and undertakes to do work which he was not fit for and which was not entrusted to him—as where an unskilled labourer undertakes to do the work of a skilled workman—he does not satisfy the conditions of the first section of
Page: 74↓
The Court answered both questions in the affirmative, and remitted to the Sheriff to determine and award compensation.
Counsel for the Claimant and Appellant— Morison, K.C.— Jameson. Agent— J. Gordon Mason, S.S.C.
Counsel for the Respondents— Spens. Agents— Macpherson & Mackay, S.S.C.
