Scottish Court of Session Decisions

Lord President—I cannot say that I have any doubt in this case, because I think that the matter has really been practically settled by many cases that have already been decided by Judges in this Court, in the Court of Appeal in England, and in the House of Lords.

The accident must, of course, arise both in the course of and out of the man's employment. Well, now, it is admitted that this accident arose in the course of the appellant's employment. He was doing his ordinary business as a canvasser when the accident occurred. The only question to be determined that has been argued before us is whether it arose out of his employment. Now I think it did. I think that it was one of the ordinary dangers to which his employment exposed him, because it is quite clear from the statements before us that his employment as collector forced him to traverse the streets. And I think therefore that a danger which is an ordinary danger in the street—and I think we are entitled of our own knowledge to know that the behaviour of a passing horse is one of the ordinary dangers of the street—is therefore a danger arising out of his employment.

It is quite true that many members of the public are exposed to the same danger, but that does not seem to me to be the criterion. These many members of the public might be either parties who are in employment or who are not, but even if they were parties in employment, they might well be in the street not in the course of their employment, and then there would be no liability. I refer to the ordinary case of a workman who is leaving the factory. After he has once got clear of the factory and is going to his own home in another part of the town, he would not be injured in the course of his employment.

But here the man, in the course of his employment, is compelled to go into the streets. I cannot myself distinguish between this case and the case of a coachman who has to drive about the streets for his master's benefit and not for his own, and is injured. I think the appellant was injured by a danger arising out of his employment.

The precise point is stated most clearly by the Master of the Rolls in the case of Macdonald v. The Owners of the s.s. “Banana,” [1908] 2 KB 926, in the passage to which I alluded in my judgment in M'Kinnon v. Miller ( 1909 S.C. 373).

I think therefore that the answer to the question of law must be that the arbitrator was not right, and that the case must be remitted to him to find the proper sum due as compensation.

Lord Kinnear—I agree with your Lordship. The question before the Court is confined to the soundness of the Sheriff-Substitute's proposition in point of law, that the accident which happened to this man did not arise out of his employment. That is clearly a decision on a point of law, because the Sheriff-Substitute finds as a matter of fact that he was riding upon a certain road upon a bicycle in the course of his employment, and that when he was thus on the road in the course of his employment he was kicked on the knee by a passing horse. And the only question that the Sheriff-Substitute puts for the Court of Appeal is whether that is in the sense of the statute an accident arising out of the employment. I agree with your Lordship for the reasons you have given. According to the statement the man had certainly in the course of his employment to traverse this particular road for his employers' purposes, and therefore the dangers and risks of that particular road at the time and on the occasion in question are to my mind incidental to the employment.

I quite agree also that the judgment your Lordship has quoted is directly in point.

Lord Johnston—I agree that I am bound by the course of previous decisions, and the dicta of those eminent Judges to which your Lordship has referred, to acquiesce in the judgment your Lordship proposes.

Lord Salvesen was sitting in the Second Division.