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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Diarmid v. Ogilvy Brothers [1913] ScotLR 883 (16 July 1913) URL: http://www.bailii.org/scot/cases/ScotCS/1913/50SLR0883.html Cite as: [1913] SLR 883, [1913] ScotLR 883 |
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Page: 883↓
[Sheriff Court at Forfar.
A was employed to work at a mangle, his duties being to bring the cloth to the machine and to help in putting it on and in taking it off the roller. It was no part of his duty to be inside the rails in front of the mangle or to interfere with the machine while the cloth was in it. On certain days and at certain fixed times A had to assist B, the headman, in cleaning the machinery when it was stopped for the purpose. Cleaning the machinery when in motion was strictly prohibited, and a notice to that effect was placed opposite the mangle. On a day which was not one of the cleaning days, and when B was out of sight, A placed himself within the rails and attempted to clean the mangle, and was injured.
Held that the accident did not arise out of and in the course of his employment.
In an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) between Robert M'Diarmid, factory worker, Kirriemuir, respondent, and Messrs Ogilvy Brothers, manufacturers, Kirriemuir, appellants, the Sheriff-Substitute ( Taylor) awarded compensation, and stated a Case for appeal.
The facts were as follows:—“1. That the respondent was in the employment of the appellants at a weekly wage of 19s. He entered their employment on 2nd December 1912. 2. That the respondent worked at a mangle as underman or beamer along with and under William Burnett as headman. 3. That the mangle at which they worked has three rollers. 4. That at a distance of 4 feet from the mangle there are rails. 5. That the middle roller, called the beamer-roller, moves on slides, and is moved out for the cloth to be passed over the rails and rolled on to it. 6. That while the process of mangling the cloth is going on there is no motion on the slides. 7. That after the cloth is on the beamer-roller it is moved back between the two other rollers. 8. That the cloth is then mangled by an alternate forward and reverse motion of the mangle. 9. That after it is mangled the cloth is rolled on to a fourth roller, called the stripper-roller, which is fixed above the mangle, and this is then unfixed and carried away to a rack with the cloth on it. 10. That part of the beamer's duties is to bring the cloth to the machine, to help to put it on the beamer-roller, to help to take it off on to the stripper-roller, and to carry the latter to the rack with the assistance of the headman.
Page: 884↓
In addition he is under the general orders of the headman. 11. That it is no part of the beamer's duty to be inside the rails while the machine is working. 12. That it is no part of the beamer's duty to interfere with the machine while the cloth is in it. 13. That it was part of the respondent's duty to assist Burnett in cleaning the machinery of the mangle at certain fixed times, viz., Tuesday, 4·30 to 5·30 a.m., and Friday, 4·30 to 5·30 a.m., when the machinery was stopped for the purpose. 14. That there are also fixed times during the day-shift on Wednesdays and Saturdays, when the machinery is stopped for the purpose of having it cleaned. Respondent was engaged during the night. 15. That when engaged on 2nd December 1912 the respondent was told by the foreman, John Farquhar, who engaged him, on no account to clean anything while the machinery was in motion. The respondent had no previous experience of factory work. 16. That there was a notice opposite the mangle at which respondent worked in the following terms:—‘Cleaning machinery in motion and cleaning or any other work (except by specially engaged sweepers) during meal hours strictly prohibited.' 17. That on 23rd January 1913, while Burnett was out of his sight on the other side of the mangle, the respondent, acting without any orders from Burnett, placed himself within the rails and attempted to clean the slide of the mangle with a piece of waste, whereupon the loose waste was caught by the roller and his right hand was drawn into the machine by the motion of the rollers. 18. That the respondent's right hand was severely injured by the accident, and after treatment was required to be amputated as a result of the accident, and was amputated on 26th January 1913.” The Sheriff-Substitute further stated—“On these facts as proved I found that the accident to the respondent was one arising out of and in the course of his employment with the appellants, and awarded compensation to the respondent accordingly.”
The question of law was—“Whether I was right in holding that the respondent was injured by accident arising out of and in the course of his employment?”
Argued for appellant—The respondent had exposed himself to risks which were not reasonably incident to his employment by arrogating to himself duties which he was neither engaged nor entitled to perform. That being so, the Sheriff-Substitute was in error in awarding compensation— O'Brien v. Star Line, Limited, 1908 S.C. 1258, 45 S.L.R. 935; Lowe v. Pearson, [1899] 1 QB 261; Furniss v. Gartside & Company, Limited, (1910) 3 B.C.C. 411; Reviev. Gumming, 1911 S.C. 1032, 48 S.L.R. 831; Kerr v. William Bail'd & Company, Limited, 1911 S.C. 701, 48 S.L.R. 646; Naylor v. Musgrave Spinning Company, Limited, (1911) 4 B.C.C. 286; Barnes v. Nunnery Colliery Company, Limited, [1912] AC 44; Burns v. Summerlee Iron Company, Limited, 1913 S.C. 227, 50 S.L.R. 164; Smith v. Fife Coal Company, Limited, 1913 S.C. 662, 50 S.L.R. 455. The cases of Conway v. Pumpherston Oil Company, Limited, 1911 S.C. 661, 48 S.L.R. 632; Harding v. The Brynddu Colliery Company, Limited, [1911] 2 KB 747; and Mawdsley v. West Leigh Colliery Company, Limited, (1911) 5 B.C.C. 80, were distinguishable, for there the workman was acting within the sphere of his own employment. It was no part of the respondent's general duty to clean the mangle. He was only entitled to assist in cleaning it, and that at certain fixed hours and on certain days. The day on which he was injured was not a cleaning day. Esto that if in furtherance of the work he was engaged to perform he had disobeyed an order and been injured he would have been entitled to compensation, it was otherwise where, as here, he had arrogated to himself duties he was not entitled to perform.
Argued for respondent— Esto that the respondent was not entitled to clean the machinery on that particular day and at that particular time, it was part of his general duty to act as assistant cleaner. He had not therefore, as the appellants maintained, arrogated to himself duties outside the scope of his employment. Esto that he would not have been entitled to compensation if (1) he had engaged in work other than that he had been engaged to perform— Lowe (cit.), Kerr (cit.)—or (2) if in doing his own work he had gone into territory with which he had nothing to do— O'Brien (cit.)— or (3) if he had acted solely for his own purposes— Barnes (cit.), Naylor (cit.)—he had not done so here. The mere fact that he had disobeyed an order and had attempted to clean the machinery when in motion was not sufficient to disentitle him to compensation— Conway (cit.), Harding (cit.), Mawdsley (cit.).
At advising—
In these circumstances I am very clearly of opinion that the respondent was acting outside the scope of his employment, and that there is no liability. There are various other things said which it is necessary that I should advert to, There was a notice put
Page: 885↓
I think that that is what distinguishes this case entirely from the case which, not unnaturally, was cited by the learned counsel for the respondent, namely, the case of Mawdsley v. West Leigh Colliery Company ( 5 BWCC 80). There the deceased workman was employed to oil a mortar mill, but was told not to oil it while it was in motion. He did oil it while it was in motion, and he was hurt. The point of the case is put by Lord Justice Fletcher Moulton, and their Lordships held that it was a mere disobedience of an order. Now in this case the respondent had no general employment to clean the machine, but a special employment to clean the machine for an hour early on the morning of Tuesday and an hour early on the morning of Friday, when special preparations were made. What I wish to say is this, that the respondent could be under no mistake as to whether he was doing his duty. He could not think he was doing the duty of a Tuesday or a Friday morning; he was doing something on another day which he knew was not his duty.
The test has often been put—I do not know that I need say much more about it, because I have said every thing that I could say in the two cases of Conway v. Pumpherston Oil Company Limited (1911 S.C. 660), and Kerr v. William Baird & Company Limited (1911 S.O. 701). In Kerr's case I expressed it in this way—whether the man was arrogating to himself duties which he was neither engaged nor entitled to perform. The matter is put still more briefly by Lord Moulton, then Lord Justice Fletcher Moulton, in the case of Barnes v. The Nunnery Colliery Company, Limited ( 4 B.W.C.C. 43). His Lordship says this—“The boy was only guilty of disobedience. Was this out of the scope of his employment, or only a piece of misconduct in his employment?” Now I think that is the test, and taking that test I have no doubt whatsoever upon the facts here that this was not a piece of misconduct in the employment, but that the respondent was doing something which he knew perfectly well he was not engaged to perform and that he was not entitled to perform. I am of opinion that the appeal here must be allowed.
I do not think that this award can be supported. As the respondent deliberately engaged in work which he was not employed to do, but on the contrary was forbidden to do, and which there was no emerging necessity for his doing, notwithstanding that the accident may have occurred in the course of his employment, it cannot be said to have arisen out of his employment. By his own unauthorised act he created a risk which was not incidental to his employment. The case is a fortiori of Smith v. Fife Coal Company.
The Court answered the question of law in the negative.
Counsel for Appellants— Sandeman, K.C.— A. R. Brown. Agent— Francis G. Sutherland, W.S.
Counsel for Respondents— Wark— T. G. Robertson. Agents— J. & J. Galletly, S.S.C.
