United Kingdom House of Lords Decisions

The decision in that case established that the employment may begin as soon as the workman has reached his employer's premises or the means of access thereto; and in the same way the employment may be considered as continuing until the workman has left his employer's premises.

The case would be different if the workman was at the time of the accident on the public highway on his way to or from his work. His employment cannot be considered as having begun if he is merely in transit in the public street or road to or from his employer's premises. Of course, if his employment were of a kind which is pursued on the highway he might be in the course of his employment while there, but I am speaking of cases in which he is in the public way merely in exercise of the public right of passage there on his way to or from his employer's.

The present case belongs to a class of cases where the thing on which the workman is employed is lying in a dock or other open space to which he obtains access only for the purposes of his work. Actual ownership or control by the employer of the spot where the accident occurred is not essential. The workman comes there on his way to and from his work, and he may be regarded as in the course of his employment while passing through the dock or other open space to and from the spot where his work actually lies. Such passage is within the contemplation of both parties to the contract as necessarily incidental to it.

The case of Cook v. Owners of Steamship “Montreal,” 6 B.W.C.C. 220, was much relied on by the appellants, but seems to me to have no application. That was the case of a sailor who had been paid off on board his ship at the end of the voyage, and from the ship got on to a “dolphin” or floating stage connected with the quay by fixed steps, and fell into the water between the “dolphin” and the quay. According to the view taken of the facts in that case he had reached the shore before the accident took place, and on that view of the facts it was held that his employment had terminated. It may be that a different view might have been taken of the facts as regards the termination of the workman's transit from the ship to the shore, but that is immaterial. On the view taken of the facts the case has no bearing on the present one. In the subsequent case of Webber v. Wansbrough Paper Company, Limited, 1915, A.C. 51, the Court of Appeal, apparently in deference to Cook v. Owners of Steamship “ Montreal,” decided against the claim, but their decision was reversed in the House of Lords on the ground that the ladder from which the accident took place formed the ordinary means of access to the ship, so that the accident was held to take place in the course of the employment.

There is, however, a decision in the Court of Appeal in Holness v. M'Kay, 1899, 2 Q.B. 319, which appears to me to be in conflict with the view which I have above indicated. In that case contractors were ballasting a siding which could be reached only by going for some distance through the premises of the railway company. On a foggy morning a workman while proceeding to his work got on to the main line and was run over and killed. A. L. Smith, L. J., and Vaughan Williams, L.J., held that the accident did not arise in the course of the employment, the former pointing out that there was an entire absence of control by the employer over the premises where the accident occurred. Romer, L.J., differed from his colleagues, and in the course of his judgment made the following observations (pp. 328–9)—“The deceased man was in the employment of the appellants, who had contracted with the railway company to do certain work at a spot substantially surrounded by lines of railway, and the access to which was not unattended with danger. By their contract with the railway company the appellants had to provide access for their workmen at their own cost, and accordingly they directed the men that they must cross the line to get to their work. The men were bound by the necessities of their employment and as part of its duties and dangers to cross the lines and to have, through the appellants, a special right or licence from the railway company to cross them, that special right or licence being given by implication. When the workmen began to cross the lines they were acting under this right or licence obtained for them by the appellants; they were doing something which they were specially bound to do under their contract of employment, and which they could not lawfully do but for that contract. Under these circumstances I think that the employment in this case substantially began when the deceased began to act upon the implied right or licence to cross the lines. I am of opinion, therefore, that the County Court Judge was justified in holding that the accident occurred in the course of the deceased's employment. I think also that his finding was correct as to the circumstances under which the accident occurred. The deceased had been told to go to the Waterloo gate; it was his nearer and more convenient way to get to his work, and it was in evidence that he was never known to use the other gate. On the facts I should come to the conclusion that he did go by the Waterloo gate, and that he lost his way owing to the fog, and that the accident arose directly by reason of his being obliged to cross the dangerous zone of lines in order to get to his work. I think therefore that the deceased man was at the time of the accident acting in the course of his employment, and that the accident arose out of his employment. The cases show that the Court is not bound by a hard and fast line to consider that a workman is not acting in the course of his employment until he actually begins the work which he has to do. To my mind the present case is like that of a workman

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