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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Clark v. Lord Advocate [1922] ScotLR 442 (17 June 1922) URL: http://www.bailii.org/scot/cases/ScotCS/1922/59SLR0442.html Cite as: [1922] SLR 442, [1922] ScotLR 442 |
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Page: 442↓
[Sheriff Court at Stirling.
A post office employee while ascending a stair in the course of his employment was about to pass a fellow employee who was descending in a heedless or careless manner. The latter waved his hand to a third employee standing on the landing above, and in so doing, and without intending to touch the claimant whose approach he had not noticed, struck his eye with one of his fingers and injured it. At the place where the accident happened the stair was so constructed that two persons passing required to exercise care. Held that the accident was one arising out of as well as in the course of the employment.
James Key Clark, post office sorting clerk, St Ninians, appellant, being dissatisfied with an award of the Sheriff-Substitute ( Dean Leslie) in an arbitration under the Workmen's Compensation Act 1906 between him and the Lord Advocate acting on behalf of the Postmaster-General, respondent, appealed by Stated Case.
The Case stated—“This is an arbitration under the Workmen's Compensation Act 1906, under which the appellant applied to have it found that he was totally incapacitated for work as the result of an accident while in the employment of the respondent.… I found the following facts proved or
Page: 443↓
admitted From September 1916 until 8th August 1921 the appellant was a sorting clerk in the employment of His Majesty's Postmaster—General at the Post Office, Stirling. His average weekly earnings amounted to £3, 6s. The employee's retiring room of the Stirling Post Office is in the basement flat. Between this room and the working rooms access is had by a stair consisting of six straight steps, nine wheeling steps, and another six straight steps. The upper half of the stair is quite well lighted. The lower half is rather dark. The steps are rather steep, being 7 or 8 inches in height. The straight steps are 3 feet 6 inches in length. The wheeling steps are a little longer, extending into rectangular corners. Two persons passing at the wheeling steps require to exercise care. It is not a dangerous stair. It is not in a part of the office open to the public. On 2nd August 1921 at 2 p.m. the appellant was in the course of his employment ascending the stair. Just after he had begun the ascent a fellow employee in the post office named Ingram began to descend. As Ingram had begun to descend a friendly remark was made to him about his return from camp, by a third employee who was on the landing which Ingram had left. Ingram replied and continued to descend, looking upwards and waved his left hand. As he brought down his hand the spectacles the appellant was wearing were displaced by it and one of Ingram's fingers touched the appellant's left eye. Ingram was going down smartly and the appellant was going up slowly. Ingram did not observe the appellant until his hand came in contact with him. When the accident occurred the appellant and Ingram were at or about the upper portion of the wheeling steps. There the light was not defective. The appellant continued at work until 8th August, when he had to give it up owing to the injury. The accident injured his left eye, and in consequence he was and still is totally incapacitated for work. On these facts I found that the appellant was not injured by accident arising out of and in the course of his employment with the respondent, and that the appellant was not entitled to compensation from the respondent under the Workmen's Compensation Act 1906.…”
The question of law for the opinion of the Court was—“Was I entitled on the facts found proved or admitted to find that the appellant was not injured by accident arising out of and in the course of his employment with the respondent in terms of the Workmen's Compensation Act 1906?”
Argued for the appellant—The accident arose out of the employment. The arbitrator had found that the construction of the stair was such as to require a certain amount of care on the part of those going up or down. Thus this accident, which arose from an absence of such care on the part of one of the persons, was causally connected with the construction of the stairs and resulted from a risk incidental to the employment. The fact that such a risk might also include a risk more or less common to all mankind was irrelevant— Dennis v. A. J. White & Company, [1917] A.C. 479, per Lord Finlay at p. 481. Counsel also referred to the following cases— M'Kenry v. Wright & Greig, Limited, 1919 S.C. 98, 56 S.L.R. 39; Simpson v. Sinclair, [1917] A.C. 479, 1917 S.C. (H.L.) 35, 54 S.L.R. 267; Trim Joint District School v. Kelly, [1914] AC 667; Reid v. British and Irish Steam Packet Company, [1921] 2 K.B. 319; Arkell v. Gudgeon, (1917) 10 B.W.C.C. 660; Miller v. Refuge Assurance Company, Limited, 1912 S.C. 37, per Lord Kinnear at p. 43, 49 S.L.R. 67; Fearnby v. Betes & Northcliffe, Limited, (1917) 10 B.W.C.C. 308; Armstrong, Whitworth & Company, Limited v. Redford, [1920] A.C. 757; Macfarlane v. Shaw (Glasgow), Limited, 1915 S.C. 273, 52 S.L.R. 236; Blair & Company, Limited v Chilton, (1915) 8 B. W.C.C. 324. The Lord President referred to Morgan v. Owners of Steamship “Zenaida,” (1909) 2 B.W.C.C. 19, and to Pierce v. Provident Clothing and Supply Company, Limited, [1911] 1 KB 997, per Buckley, L.J., at p. 1003.
Argued for the respondent—The accident did not arise out of the employment. The arbitrator had found in fact that the stair was not dangerous. The accident was one that might happen anywhere. It was not causually connected with the circumstances of the employment. The risk was one common to all mankind, as in Craske v. Wigan, [1909] 2 KB 635, and the respondent therefore was not liable. Counsel also referred to the following cases— Lancashire and Yorkshire Railway Company v. Highley, [1917] A. C. 352, per Lord Sumner at p. 372; Trim Joint District School v. Kelly ( cit.); Reid v. British and Irish Steam Packet Company ( cit.), per Lord Sterndale, M.R., at 322; Wilson v. Laing, 1909 S.C. 1230, 46 S.L.R. 843; Wrigley v. Nasmyth, Wilson, & Company, Limtted, (1913) 6 B.W.C.C. 90; Clayton v. Hardwick Colliery Company, Limited, (1915) 9 B.W.C.C. 136; Hardie v. Gain & Sons, 9 B.W.C.C. 328; Challis v. London & South-Western Railway, [1905] 2 KB 154; Armitage v. Lancashire and Yorkshire Railway, [1902] 2 KB 178, per Collins, M.R., at p. 180; Warner v. Couchman, [1912] AC 35; Hannifin v. Fitzmaurice, (1920) 14 B. W.C.C. 320.
At advising—
Page: 444↓
The proximate cause of the appellant's injury was found by the arbitrator to have been a careless gesture on the part of a person named Ingram who was employed along with the appellant in the post office at Stirling. The accident occurred upon a stair leading from the post office on the ground floor to the employees' retiring room in the basement. The appellant was going up slowly, but Ingram was coming down “smartly” and was not looking in the direction in which he was going. After waving to a third employee who had made a friendly remark about Ingram's return from camp, the latter without intending to touch the appellant, whose approach he had not noticed, brought down his hand in such a way as to touch the appellant's left eye with one of his fingers and so injure it. The question which the arbitrator had to consider was whether the appellant's employment, though not the proximate cause of the accident, was “one of the contributing causes without which the accident which actually happened would not have happened.” The words quoted are from the opinion of Lord Loreburn, L.C., in Clover, Clayton, & Company, Limited v. Hughes, [1910] AC 242, at p. 245.
The arbitrator has found as matter of fact that “the appellant was in the course of his employment ascending the stair.” It follows that at the time of the accident he was doing something which was part of or incidental to his service in the Post Office — Officer v. Davidson, 1918 S.C. (H.L.) 66. The only question which remains is whether the stair which the appellant was ascending was so constructed that he was necessarily brought into such close proximity with any employee who might be descending at the same time as to expose him to the risk of being injured in his person by a careless though otherwise innocent gesture on the part of that employee. This question admits of only one answer, viz., in the affirmative. Although the stair was unobjectionable as regards construction and lighting, it was at the place where the accident occurred formed of “wheeling steps” a little more than 34 feet in length, and such that “two persons passing … required to exercise care.” It is irrelevant to point out (what is quite true) that even if there had been no stair and no narrow passages in the Post Office, but simply one large chamber, two employees might have found a reason—good or bad—for coming into close prox-imity and thus exposing themselves to injury from each other's clumsiness. It is equally irrelevant to point out that in most employments the employees are more or less often brought into close proximity with each other, and that persons who are not in any employment come into similar proximity with each other on many occasions in every twenty-four hours. As regards this argument, I respectfully adopt what was said by Buckley, L. J., in a passage from his opinion in the case of Pierce v. Provident Clothing and Supply Company, Limited ( [1911] 1 KB 997), which was quoted with approval by Lord Finlay, L.C., in his speech in Dennis v. White & Company, [1917] A.C. 479. The passage is as follows:—“The question whether the accident is the result of a risk to which all mankind are more or less exposed is in my judgment not an exhaustive test of the question whether or not the accident arises out of the employment. The words ‘out of’ necessarily involve the idea that the accident arises out of a risk incidental to the employment. An accident arises out of an employment where it results from a risk incidental to the employment as distinguished from a risk common to all mankind, although the risk incidental to the employment may include a risk common to all mankind.”
For the reasons indicated I think that the question of law should be answered in the negative, and that the case should be remitted to the arbitrator in order that he may assess the compensation due to the appellant. I express no opinion as to what the legal position would have been if the appellant had been injured in circumstances which made it possible to argue that the connection between his employment and the accident had been broken by the intervention of a new and independent cause, e.g., if Ingram had put forward his hand with the intention of touching the appellant's face either in anger or as a joke, or if the appellant had been assaulted by a criminal or a lunatic who was lurking in one of the “rectangular corners” of the stair. In the absence of any contrary statement in the case or suggestion in the argument, I have, of course, assumed that Ingram was entitled to use the stair, and was doing so for a lawful purpose at the time of the unfortunate occurrence.
The facts found by the arbitrator show in my opinion that it was incidental to the appellant's employment at the Post Office, Stirling, to use the stair in question during business hours, and in ascending the stair at any particular time he ran the risk of a collision or impact with some one of his fellow-workers in the office who might be descending in a heedless or careless manner. On that footing it appears to me in accordance with the more recent authoritative pronouncements regarding the meaning of the statute to hold that the accident in question arose out of the appellant's employment. I accordingly concur in answering the question in the Stated Case as your Lordships propose.
The Court answered the question of law in the negative.
Counsel for Appellant— Wark,. K.C.— Paton. Agents— Maxwell, Gill, & Pringle, W.S.
Counsel for Respondent—Solicitor-General ( Constable, K.C.)— Skelton. Agent— John S. Pitman, W.S.
