Scottish Court of Session Decisions

Lord M'Laren—The appellant, at the time when he met with the disabling accident, was a capstanman in the employment of the Clyde Navigation Trustees, his duty being to work the hydraulic machinery by which waggons were moved to and from the coal-shoot which was used for loading vessels at Prince's Dock with coal. On 9th April of this year the appellant left his work about 2 p.m., being the commencement of the hour allowed for dinner, and proceeded to walk towards the east gate of the docks on his way home. This gate is distant about 600 yards from the coal-shoot where the appellant was employed, and when the appellant was about half-way to the gate he endeavoured to climb on to one of the waggons of a passing train, which is stated to have been travelling at considerably more than a walking pace, and in so doing he missed his footing and sustained injuries which have resulted in serious and permanent disablement. In fact it was found necessary to amputate the appellant's right leg above the knee.

These facts are all found by the Sheriff-Substitute, who has also found that the appellant did not climb the waggon for any object of his employers but for his own pleasure. In these circumstances the appellant challenges the decision of the Sheriff-Substitute assoilzieing the respondents, and claims the judgment of the Court on the question: “Was the Sheriff-Substitute right in holding upon the facts found by him that the accident did not arise out of and in the course of the appellant's employment?”

There are cases where a workman may be entitled to claim compensation for an injury received in circumstances which were only indirectly connected with the special duties of the workman; and in particular it has been recognised that a workman owes a duty to his employer to give occasional help to a fellow-workman, e.g., in lifting heavy materials or removing obstructions; and if such assistance is given in the ordinary course of the business in which the workman is engaged, and in the furtherance of the business of the employer, it cannot be said, in a reasonable sense, that the workman has gone outside the course of his employment. Such cases when they arise will be considered on their merits, but the present case does not fall within any exceptional category, because it is expressly found that the appellant did not mount the waggon for any object of his employers.

We were referred, very properly, to various cases in which this question or something like it had been raised; but I prefer to rest my judgment on the facts of this case, because in a pure question of fact decisions on one set of facts are seldom useful as a guide to the decision of a case depending on different facts. I may add that there are no doubt many cases under the previous Act of Parliament where the defence would not be raised that the workman was outside the scope of his employment, because it was perfectly clear that the accident was the result of the workman's misconduct. But now, under the operation of the new statute, the Workmen's Compensation Act 1906, the defence of “serious and wilful misconduct” is not pleadable when the accident results in a permanent disablement, incapacitating the employee for work. In the present case, accordingly, we have no occasion to consider whether the appellant was chargeable with fault in mounting a waggon in motion; the only question is, whether the injury arose out of and in the course of his employment.

The best that can be said for the appellant's case is, that he was on his employers' premises within the dock-gates, and that he was within his contract in proceeding homewards for his dinner at 2 o'clock. But this does not advance his case very far. Under the present law we have not to consider whether the accident occurred in or about the employers' premises; the right to compensation will accrue independently of locality if the workman was at the time and place in question in the exercise of his employment. But this consideration only accentuates the condition that the party must satisfy the arbitrator that the accident arose out of and in the course of his employment, because it was not intended that the employer should be a universal insurer.

Now it was certainly not within the contemplation of parties when the appellant was engaged that he should get upon a moving waggon to enable him to go home to his dinner, and it is found that his doing so was not for any object of his employers; and this is just another way of saying that the act which led to the disablement of the appellant neither arose expressly nor by implication out of his employment. I come therefore without any difficulty to the conclusion which the Sheriff-Substitute has arrived at on the facts of the case.

If it is necessary to refer to authorities, the case of Reed v. The Great Western Railway Company, decided last week in the House of Lords, supports our judgment, because in that case an engine-driver who had crossed the main line to get a book from a fellow-servant and was run over in returning to his engine, was on this ground held disentitled to compensation. I am for answering the question in the affirmative and dismissing the appeal.

Lord Pearson—At the time when this accident happened, the appellant had not left his employers' premises, but was on his way towards the gate to spend his dinner hour at home. It may be that by an extension of the term “employment” the liability of an employer will extend to an accident occurring to a workmen on his way to the exit after his actual work is over for the time. But in order to fix liability on an employer it is necessary that the accident should arise out of and in course of the employment; and whatever may be said here as to the appellant having been still in the course of his employment, which I

Page: 42↓