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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mitchell and Others v. Whitton [1907] ScotLR 955 (18 July 1907) URL: http://www.bailii.org/scot/cases/ScotCS/1907/44SLR0955.html Cite as: [1907] ScotLR 955, [1907] SLR 955 |
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Page: 955↓
[Sheriff Court at Dundee.
A farm servant in charge of a horse and cart was fatally injured through the horse suddenly bolting and the cart being upset. At the time of the accident the deceased, who was driving the cart along a public road, was not holding the reins, having tied them, within reach, to the upper left ring of the breeching. The Sheriff-Substitute “found in fact” that the deceased had not been guilty of serious and wilful misconduct and awarded compensation.
In an appeal held (1) that the question was one of fact and not subject to review, and (2) assuming review to be competent, that the deceased had not been guilty of serious and wilful misconduct in the sense of section 1, subsection 2 ( c), of the Workmen's Compensation Act 1897.
The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), section 1, sub-section 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.”
The General Turnpike Act (1 and 2 Will. IV, cap. 43), section 97, incorporated in the Roads and Bridges (Scotland) Act (41 and 42 Vict. cap. 51), section 123, provides—“If the driver of any cart … on any turnpike road shall ride on the shafts, or in or on any other part of such carriage, without having and holding reins attached to each side of the bridle of each beast of draught drawing such cart, … such driver shall for every such offence forfeit and pay a sum not exceeding five pounds over and above the damages occasioned thereby.”
In an arbitration under the Workmen's Compensation Acts 1897 and 1900, between James Whitton, farmer, Easter Jordanstone, Meigle, and Waterybutts, Barry, and Mrs Mary Lyall or Mitchell, Waterybutts, Barry, widow of the late William Mitchell, farm servant there, and others, claimants, the Sheriff-Substitute ( Campbell Smith) awarded compensation, and at the request of Whitton stated a case for appeal.
The case stated—“That on 14th January 1907 the husband of the senior respondent, and the father of her children, when working as a farm servant in the employment of the appellant on the farm of Waterybutts, of which the appellant is tenant, and in charge of a horse and cart belonging to him, was so severely injured that he died in consequence of and within four hours after
Page: 956↓
the overturning of the said cart, which fell upon him near the entrance to a field which adjoins the road to Barry railway station; that the defence that his death was brought about or caused by his wilful or conscious default has not been proved in point of fact; that the causes of this fatal accident were complex and not capable of definite separation, and included (1) the leaving open of the gate of the field into which the steady horse that he was sitting behind on the head of the coup cart suddenly bolted; (2) that at the left-hand pillar of entry by this open gate a small mound of road scrapings had been piled up; (3) that the left wheel mounted this small mound as an inclined plane: and (4) that it knocked over or broke the left-hand pillar of the gate and climbed it so far as to capsize the cart and cause the fall of the deceased below the cart thus thrown off its balance and turned over on its right wheel. The deceased was not holding the ropes called ‘reins’ in his hand at the time, but had tied them within reach to the left upper and most accessible and convenient ring of the britchen on leaving the steading, as the farmer's son who followed and accompanied him had also done, and for the defence it is maintained that the failure to hold the reins in his hand was in law wilful default on his part, and was in fact the truly sufficient cause of the death; but the Sheriff-Substitute … held in law that no working man is bound to foresee the unusual, much less the unprecedented, or to be wiser than his class; and found in fact that the death of the workman in this case was not attributable to any serious and wilful misconduct on his part. The Sheriff-Substitute therefore found the respondents entitled to compensation, and granted decree as craved, with five guineas of expenses.” The question of law was—“Was the accident to the deceased attributable to his own serious and wilful misconduct within the meaning of section 1, sub-section 2 ( c), of the Workmen's Compensation Act 1897?”
Argued for appellant—The deceased in not having hold of the reins was in breach of a statutory regulation — Roads and Bridges (Scotland) Act 1878, section 123, incorporating, inter alia, section 97 of the General Turnpike Act (1 and 2 Will. IV, cap. 43)—and breach of a statutory regulation amounted to serious and wilful misconduct— Dobson v. United Collieries, Limited, December 16, 1905, 8 F. 241, 43 S.L.R. 260.
Counsel for respondents were not called on.
The Court answered the question of law in the negative and dismissed the appeal.
Counsel for Appellant— Morison, K.C.— James Macdonald. Agents— Gordon, Falconer, & Fairweather, W.S.
Counsel for Respondents (Claimants)— Watt, K.C.— Macmillan. Agents— Gardiner & Macfie, S.S.C.
