BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Lauchlan v. Anderson [1911] ScotLR 349 (01 February 1911)
URL: http://www.bailii.org/scot/cases/ScotCS/1911/48SLR0349.html
Cite as: [1911] ScotLR 349, [1911] SLR 349

[New search] [Printable PDF version] [Help]

SCOTTISH_SLR_Court_of_Session

Page: 349↓

Court of Session Inner House First Division.

[Sheriff Court at Banff.

Wednesday, February 1. 1911.

48 SLR 349

M'Lauchlan

v.

Anderson.

Subject_1Master and Servant
Subject_2Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 1 (1)
Subject_3“Arising out of and in the Course of the Employment.”
Facts:

A workman was employed as labourer in connection with loading and unloading waggons, and accompanying them while being hauled by a traction engine from one quarry to another. While sitting on a waggon which was being so hauled, he dropped his pipe, and in attempting to get down to recover it he lost his balance and fell in front of the wheels of the waggon, which went over his left leg, seriously injuring him.

Held that the accident “arose out of and in the course of the employment,” within the meaning of section 1 (1) of the Workmen's Compensation Act 1906.

Headnote:

Mrs Jane Wilson or M'Lauchlan, widow of Peter M'Lauchlan, traction engine assistant, for her own interest and also

Page: 350↓

as tutor for her three pupil children, claimed compensation under the Workmen's Compensation Act 1906 from George Anderson, traction engine owner, Fordyce, Banffshire, and being dissatisfied with the determination of the Sheriff-Substitute ( Laing), acting as arbitrator under the Act, appealed by way of stated case.

The Case set forth, inter alia — “This is an arbitration in which I found the following facts established, viz.—(1) that the deceased Peter M'Lauchlan, who resided at 87 Moss Street, Keith, Banffshire, was employed by the respondent as a traction engine assistant from October 1909 to 25th April 1910 inclusive; (2) that the deceased's duties consisted of assisting his fellow workmen, Alexander Reid, traction engine driver, and Alexander Crighton, traction engine assistant, both of Fordyce, Banffshire, to load at various quarries the waggons attached to a traction engine for conveyance to Portsoy; to accompany said waggons to their destination and there to assist in unloading; (3) that on said 25th April, between the hours of 3·30 and 5·30 p.m., the deceased Peter M'Lauchlan was engaged at the Ord Quarries, Banffshire, assisting the said Alexander Reid and the said Alexander Crighton to load the waggons;….; (5) that after the waggons were loaded, the said Alexander Reid, the said Alexander Crighton, and the said Peter M'Lauchlan, about 5·30 p.m. proceeded with the traction engine and waggons from the said Ord Quarries along the public road to Portsoy, where they were to assist in unloading the waggons; (6) that at that time the said Alexander Reid and the said Alexander Crighton were on the traction engine, and the deceased Peter M'Lauchlan was sitting at the right-hand corner of the front waggon next the engine with his legs dangling over the front; (7) that about 6·30 p.m., at a point on the road to Portsoy, the said Peter M'Lauchlan was in the act of lighting his pipe when it dropped from his grasp on to the road; (8) that while he was attempting to get down from the corner of the front waggon for the purpose of recovering his pipe, he lost his balance and fell in front of the waggon, with the result that the wheels thereof went over his left leg, seriously injuring him; (9) that the said Peter M'Lauchlan was removed as soon as possible to the Chalmers Hospital, Banff, where, in spite of medical treatment, he succumbed to his injuries on 26th April 1910; (10) that the deceased Peter M'Lauchlan attempted to get down from the waggon, not for any object connected with his employment with the respondent, but for his own purpose;.…; (12) that the appellant and her said children were wholly dependent upon the weekly earnings of the said Peter M'Lauchlan. On these facts I found in law that the appellant was not entitled to compensation in respect that the accident, from the effects of which the said Peter M'Lauchlan died, was not the result of an accident arising out of his employment with the respondent in the sense of section 1, sub-section 1, of the Workmen's Compensation Act 1906. I therefore assoilzied the respondent from the conclusions of the initial writ.…”

The question of law for the opinion of the Court was—“Whether the death of the said Peter M'Lauchlan was the result of an accident arising out of and in the course of his employment with the respondent, within the meaning of section 1, subsection 1, of the Workmen's Compensation Act 1906.”

Argued for the appellant—The accident arose out of and in the course of the employment. They referred to Moore v. Manchester Liners, [1910] AC 498, per Lord Chancellor Loreburn at p. 500; Keenan v. Flemington Coal Company, Limited, December 2, 1902, 5 F. 164, 40 S.L.R. 144; Harrison v. Whitaker Brothers, Limited, 1899, 16 T.L.R. 108; and by way of contrast to Reed v. Great Western Railway Company, [1909] AC 31, 46 S.L.R. 700.

Argued for the respondent—The Sheriff was right in holding that the accident did not arise out of the employment. The picking up of the pipe was for the workman's own purpose. Nor did it arise in the course of the employment, for he had for the time abandoned his master's work in order to serve his own private ends. Reference was made to Reed ( cit. sup.), opinion of Lord Macnaghten; Smith v. Lancashire and Yorkshire Railway, [1899] 1 QB 141; Morrison v. Clyde Navigation Trustees, 1909 S.C. 59, 46 S.L.R. 40. In any case the Sheriff's finding that the accident did not arise out of the employment was a finding in fact which there was evidence to support.

 Judgment:

Lord President—The facts in this case are as follows:—The deceased was engaged as a labourer in connection with loading at various quarries waggons which were afterwards hauled by a traction engine over the roads of Banffshire to Portsoy. The deceased's main duties were to help at the loading and unloading and to accompany the waggons on their journeys. On the occasion of his death he was sitting on one of the waggons which was being hauled by the engine in the prosecution of one of the intermediate journeys from one quarry to another. While sitting on the waggon he dropped his pipe and got down to recover it; in so doing he stumbled and fell, and was run over by the waggon. The arbitrator has found in fact that “the deceased Peter M'Lauchlan attempted to get down from the waggon, not for any object connected with his employment with the respondent, but for his own purpose,” and proceeding upon that has found in law that the appellant is not entitled to compensation in respect that the accident was not an accident arising out of his employment in the sense of section 1 (1) of the Workmen's Compensation Act 1906.

The question before your Lordships is whether that finding in law can be supported in view of the various facts the arbitrator found to be proved, which I have detailed. I am of opinion that the finding cannot be supported. I think the

Page: 351↓

fallacy that has led the learned arbitrator astray is connected with the true meaning of the words “his own purpose.” In one sense anything a man does in connection with his own body is done for his own purpose—eating and drinking are illustrations, but these are none the less things a workman is perfectly entitled to do in the course of his employment. The Lord Chancellor (Lord Loreburn) in the course of his opinion in the case of Moore v. Manchester Liners, Limited, [1910] AC 498, at p. 500, said this—“I think an accident befalls a man ‘in the course of’ his employment if it occurs while he is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time to do that thing.” Now this man's operation of getting down from the waggon to recover his pipe seems to me to satisfy all those conditions. Taking them in their inverse order, he had a right to be at the place, riding on or walking beside the waggons; he was within the time during which he was employed, because the accident happened during the actual period of transit; and he was doing a thing which a man while working may reasonably do—a workman of his sort may reasonably smoke, he may reasonably drop his pipe, and he may reasonably pick it up again.

I think this case is in thorough contrast to the cases which were cited to your Lordships of the engine-driver and the ticket-collector. Each of those men was doing something which was not incidental to his ordinary work, but took him away from his work for a purpose purely his own—the engine-driver went to fetch a book, and the ticket-collector to talk to a lady passenger.

A good deal has been said about the difference between an accident arising “out of” and one arising “in the course of” the employment. No doubt in the earlier cases under the Act there was a certain amount of difficulty in the distinction, but my view on the matter is quite determined. I think it is impossible to have an accident arising out of, which is not also in the course of, the employment, but the converse of this is quite possible, as, for instance, if a workman were shot by a lunatic, or struck by lightning, while at the moment engaged in his work. In a great many cases, however, the two phrases do not admit of separate consideration, and the present is one of those cases. If this accident took place in the course of the workman's employment, it also indubitably arose out of that employment; if not, not. On the whole matter I propose that we should recal the finding of the arbitrator and find the widow entitled to compensation.

Lord Kinnear—I am of the same opinion. Mr Brown has very properly called our attention to a very material finding of the Sheriff, that this injury was not the result of an accident arising out of the workman's employment in the sense of the first section of the Act. He said that this was a finding of fact which we could not disturb if there was evidence before the Sheriff on which it could reasonably be supported. I agree that we must be very careful to keep in view this limitation of our jurisdiction, and that we are not entitled to review findings of pure fact. But this is not a finding of pure fact, but a mixed finding of fact and of law, because to arrive at that finding it was necessary not only to draw an inference of fact but also to construe the Act of Parliament in a particular way, and the Sheriff has enabled us to disentangle the question of law from the question of fact by the series of specific findings in fact which he sets out as leading up to his conclusion. So separating these two questions I am clearly of opinion that the Sheriff has gone wrong in applying the statute to the facts which have been proved in this case.

I do not think that it is necessary to distinguish very exactly between the two requirements that this accident must satisfy in order to fall within the scope of the section, namely, those arising out of and in the course of the employment respectively, because I think it is quite clear here that both conditions are satisfied. The injury arose from a risk to which the workman was exposed by the nature of his work. He was in charge of a traction engine and was run over by it. That this was an accident arising out of his employment I see no reason to doubt. It is proved that the man was in the course of his employment when the accident occurred. The only ground suggested for a different view is that the accident happened when the man had got off the waggon on to the road to pick up something which he had dropped. It is conceded that it was not part of his duty to sit on the waggon all the time. He was entitled to walk, and therefore to be on the road. This is exactly the situation which was considered by the Lord Chancellor in the case of Moore, and I think his reasoning conclusive. The present case is quite indistinguishable from that of Keenan, where it was held that a man was still in his employment though he had moved a few steps from the place of his work in order to get a drink of water. There is no such distinction between the purpose of drinking and that of picking up an article that has fallen as to justify a finding that the one man was still in employment whilst the other was not. The question to be decided here would be exactly the same if this man had got off the waggon to drink from a spring at the roadside. I therefore entirely agree with the Lord President that the Sheriff has decided upon a wrong view of the statute and that his decision cannot be supported.

Lord Mackenzie—I am entirely of the same opinion. I think that when the facts of the case are considered along with the opinion of the Lord Chancellor in Moore v. Manchester Liners, Limited, [1910] AC 498, to which your Lordships have referred, there is no evidence to justify the result at which the Sheriff-Substitute as arbitrator

Page: 352↓

has arrived. The workman was at his work, and his attempt to get down to pick up his pipe was merely an incident in the day's work.

Lord Johnston was absent.

The Court pronounced this interlocutor—

“Answer the question of law in the affirmative: Recal the determination of the Sheriff-Substitute as arbitrator: Remit the cause to him to proceed as accords,” &c.

 Counsel:

Counsel for the Appellant— Dykes. Agent— J. P. Ross, W.S.

Counsel for the Respondent— A. R. Brown. Agents— Macpherson & Mackay, W.S.

 1911

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/1911/48SLR0349.html