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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Officer v. Charles R. Davidson & Co. [1918] UKHL 185 (28 January 1918) URL: http://www.bailii.org/uk/cases/UKHL/1918/55SLR0185.html Cite as: 55 ScotLR 185, [1918] UKHL 185 |
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Page: 185↓
(Before the
(In the Court of Session, March 17, 1917, 54 S.L.R. 362, and 1917 S.C. 485.)
Subject_Workmen's Compensation — “Out of and in the Course of the Employment” — Sailor — Ship's Engineer, Returning after Leave, Drowned in Harbour under Admiralty Control — Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 1 (1).
A ship's engineer was given leave to go ashore for his own purposes. His ship was lying at a quay in a public harbour, which, however, was now controlled by the naval and military authorities, a pass being required for ingress to and egress from the harbour. Passes were only issued to persons having business at the harbour. On his way back the engineer fell into the harbour and was drowned while still some distance from the gangway to his ship.
Held ( dis. the Lord Chancellor, rev. judgment of the First Division) that the accident was not one “arising out of and in the course of the employment.”
Long hurst v. John Stewart & Son, Limited, [1917] A.C. 249, distinguished.
Authorities considered.
This case is reported ante ut supra.
The employers, Charles R. Davidson & Company, appealed to the House of Lords. At delivering judgment—
Page: 186↓
The Sheriff held that the accident to the deceased happened in the course of his employment, but that it had not been shown to arise out of his employment, and therefore found that the steamship owners were not liable. He stated a case, the question of law for the opinion of the Court being whether he was entitled to hold that the accident to the deceased did not arise out of his employment. In a note appended to the case the Sheriff stated that he proceeded on the ground that the absence of the deceased from the ship had not been in pursuance of any duty owed to his employer but on an errand of his own, and that the quay was common to all who had access to it, and did not form the specific means of access appropriate to the “Ferryhill.”
On appeal the Court (the Lord President, Lord Mackenzie and Lord Skerrington) held that on the facts the accident arose out of the employment, and accordingly answered the question put in the case in the negative. From that decision the present appeal has been brought by the shipowners, asking that the decision of the Sheriff in their favour should be restored.
If the question were one of fact merely there would be no appeal from the arbitrator's finding. But it appears to be quite clear from the Stated Case and the note appended to it that there is no dispute as to the facts, and that the question is whether in point of law upon these facts the arbitrator was correct in holding that the accident did not arise out of the employment.
There is a long series of cases in which the question has been discussed at what point employment for the purposes of the Workmen's Compensation Act begins and ends. In Gilmour v. Dorman, 4 B. 279 (1911), the Master of the Rolls said at p. 280—“It has been repeatedly held that a man is not entitled to protection when on his way from his home to the works. There may be some difficulty in ascertaining precisely when a man's employment begins. Generally speaking the factory gate or yard indicates the boundary.” The authorities bearing on this point came under review in this House in the case of Stewart v. Longhurst, ([1917] A.C. 249), and their effect was thus summarised by me at pages 252 and 253 of the report. After a reference to the unreported case of Cross Tetley & Company v. Catterall, the judgment proceeds—“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 or 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
Page: 187↓
The question has often arisen with regard to sailors leaving and returning to their ships when they have been permitted to be absent on leave. If the ship is lying at a quay which forms part of a public highway by a river or estuary the sailor's employment for this purpose ceases when he has got off the gangway connecting the ship with the quay, and it begins again on his return when he reaches the shore end of the gangway. The employer will be liable if the accident happens after the sailor on his way back has got on to the gangway, and also if he was close to the shore end of the gangway, but in the darkness or fog failed to get upon it and fell into the water. On the other hand if the ship is lying in a dock to which the public have not access as a right, and to which only persons coming on business are admitted, liability begins when the sailor enters the dock. The same principle is applied as regards the cessor of liability, and it was decided by this House in Stewart v. Longhurst ( ubi supra) as regards a workman who was drowned by falling into the dock on his way home at the end of his day's work on a barge lying in the dock, that his representatives were entitled to compensation under the Act. The Court of Appeal in that case ( [1916] 2 K.B. 803) decided that as the man had no right to be upon the dock premises except by virtue of his employment the accident arose out of and in the course of his employment. In the report in the House of Lords it is stated that it was not disputed that the accident arose out of the employment, but this merely means that in argument it was admitted that if the man was in the course of his employment going home through the dock it could not be disputed that the accident arose out of it, which was obvious upon the facts of that case. Lord Justice Pickford says (at p. 806 of the report)—“The public had no right to enter these premises by virtue of the general rights of the public, and were not exposed to the dangers which this workman by reason of his employment had to encounter. It seems to me on principle that any accident occurring to him on these premises to which he was taken only by his employment and on which he had no right to be but for his employment was an accident arising out of his employment, and that the relationship of employer and workman did not cease till he left these premises and his position became again that of an ordinary member of the public.” The same view was taken in your Lordships' House, and it was pointed out that the employment must be regarded as commencing as soon as the workman employed on a ship in such a dock has entered the dock and is continuing until he has left. It was pointed out especially by Lord Dunedin, at pp. 256–7, that the actual ownership of the premises by the employer is for this purpose immaterial.
The appellants seek to distinguish Longhurst's case on two grounds. The first is that the dock in Longhurst's case was a private dock, to which access could be obtained only by leave of the proprietors, while in the present case the harbour was a public harbour, and any restraint on access was due to precautions taken by the military and naval authorities in consequence of the war. It is not clear how far before the war members of the public not having business there had access to the Cross Wall Quay where the accident happened, and for the purposes of the present case it must be taken that the restriction was due entirely to the regulations of the naval and military authorities. The arbiter states that since the war the naval and military authorities had taken possession of a great part of the harbour, including the Cross Wall Quay, that the two accesses to the shore at positions A and E on the plan were guarded by them, and that passes were required by all persons not in uniform in order to get in and out, these passes being issued to those who had business at the harbour. A pass was issued from the Harbour Office to the deceased before he left the harbour. It was signed by the harbour-master and countersigned by a naval officer, and entitled the deceased to return to the harbour. The deceased received this pass only by virtue of his employment on board the “Ferryhill,” and but for that employment he could not have been on the quay at all, nor could he have passed through the entrance at point A.
It is in my opinion immaterial that the control of the harbour was in this case exercised by the naval and military authorities, while it was exercised in Longhurst's case by the owners of the dock. The result is the same. The deceased got his pass only by reason of his employment, and but for his employment he would have had no access to the quay. The Court of Session held Longhurst's case, which at that time had been decided only by the Court of Appeal, as decisive of the present case, and in my opinion they were right. There is no real difference between the two cases on this point. In each case the servant had to go to a place which had special dangers, and got access to this place solely by reason of his employment.
The second ground on which the appellants seek to distinguish Longhurst's case was that there the deceased was going through the docks on his way home from the barge on which he was employed, while here he had to return by the dock basin because he had been on shore for his own purposes. I cannot regard this as making for this purpose any real difference. The question is, when does the servant return to his employment for the purposes of the Workmen's Compensation Act so that the accident may arise out of the employment? He returns to it in either case at the same point at which he would have left it if he had been going away from the ship. If effect were given to this argument it would
Page: 188↓
A great many cases were cited to us in the course of the argument. It is only necessary to refer to a few of them.
In Moore v. Manchester Liners, Limited, [1910] AC 498, 48 S.L.R. 709, a sailor who had been on shore on leave, on returning had gone on to a ladder which formed the access from the quay to the ship, and fell from the ladder and was drowned. It was held that this accident arose out of and in the course of the employment. As Lord Ashbourne put it—The ladder “was the only mode by which deceased could fulfil his necessary duty of returning. This ladder attached to the ship was a requisite of it for the purpose of access, and practically for that purpose almost formed part of it. The deceased fell off the ladder whilst seeking to re-enter the ship. On the facts I arrive at the conclusion that the accident arose out of and in the course of his employment, and therefore I think the appeal should be allowed.”
In Kitchenham v. Owners of the Steamship “Johannesburg,” [1911] AC 417, 49 S.L.R. 626, the sailor had been on shore with leave. On his return he fell from the quay before reaching the gangway which gave access to the ship. It was held that the claim failed, as it was not shown that the accident arose out of the employment.
In Kitchenham's case in the Court of Appeal Lord Justice Moulton says (p. 526 of the report in [1911], 1 K.B.) that he considers it to be settled by the decision of the House of Lords in Moore v. The Manchester Liners that “when a ship is in port and a sailor goes on shore with leave his employment is not interrupted thereby.” I do not think that this is involved in the decision of the House of Lords in either Moore v. The Manchester Liners or Kitchenham's case, as distinguished from observations made in the course of the judgments. The view expressed by Lord Justice Moulton is apparently that on which the arbitrator acted in holding that the accident happened in the course of the employment while holding that it did not arise out of his employment.
In Webber v. Wansbrough Paper Company, [1915] A.C. 51, 52 S.L.R. 859, all that was decided was that the vertical ladder on the side of the quay might be considered as part of the means of access to the ship, and that for this reason liability attached to the employer.
In Parker v. Owners of the “Black Rock” Steamship, [1915] A.C. 725, 53 S.L.R. 500, the sailor had been on shore with leave on his own business. He fell from the pier before reaching the gangway, the ship having been moved, and it was held that the accident did not arise out of the employment. If he had been on the ship's business the owners would have been liable for any accident happening to him in the streets or on the quay, or at any other place to which the business took him.
I have already dealt fully with Longhurst's case, and have given my reasons for agreeing with the Court of Session in thinking that there is no substantial distinction between that case and the present.
For the reasons given above I think that the accident arose out of the employment. In order that the claimant may succeed, it is, however, necessary that the accident should arise not only out of but also in the course of the employment. In my opinion the accident arose in the course of the employment in the present case substantially for the reasons which I have given when discussing the question whether it arose out of the employment. The deceased returned to his employment when he entered the harbcur gates through which he got access only by reason of his employment. The word “employment” must mean the same thing when in apposition with “in the course of” as it means when in apposition with “out of.” “Arising out of the employment” obviously means arising out of the work which the man is employed to do and what is incident to it—in other words, out of his service. “In the course of the employment” must mean, similarly, in the course of the work which the man is employed to do, and what is incident to it—in other words, in the course of his service. In the case of a domestic servant who sleeps and takes his meals in his master's house he is in the course of his service all the time—his service is interrupted if he goes out on his own business or pleasure. A workman who by the terms of his employment takes his meals on his employer's premises is in the course of his service in being there at mealtimes. In either case the master or employer would be liable for damage caused by such an accident as happened in Thom (Simpson) v. Sinclair, [1917] A.C. 127, 55 S.L.R. 267, as it would arise out of the employment, an incident of which is the presence of the servant or workman upon the premises when partaking of his meals, but different considerations might apply if the injury proceeded from choking over a morsel of food, as the act of eating may be no part of the service.
The words “and in the course of” were
Page: 189↓
“In the course of the employment” does not mean during the currency of the time of the engagement. If the words meant this they would be useless, and would add nothing to the words “arising out of the employment,” while to interpret them in this sense would let in the possibility of a number of claims of the nature above indicated' which the words “in the course of the employment,” rightly read as meaning in the course of the work or service, would exclude.
If “in the course of the employment” meant during the currency of the engagement a sailor engaged for a round voyage would be in the course of his employment while in a public-house in any port where he had leave to go on shore. “Course” is more applicable to work or service than to the currency of the engagement. Leave on shore on the sailor's own business or pleasure is an interruption of his employment, not in the course of it.
I have thought it necessary to state the grounds on which I hold that the accident arose in the course of the employment as the grounds on which the Sheriff came to this conclusion appear to me to be erroneous in point of law.
The views which I have expressed as to the meaning of the words “in the course of the employment” may not be in agreement with some expressions in some judgments but are not in my opinion in conflict with any decision of this House.
For these reasons I think this appeal should be dismissed.
The appeal before us illustrates the difficulty we have increasingly to face, for there have been previous cases which, resembling this one pretty closely so far as some of their particular circumstances are concerned, yet in others of their circumstances, while still presenting a considerable degree of resemblance, they have been held to differ from each other in legal result and have been decided in different senses. For features which in one aspect were the same have turned out on scrutiny to be in another aspect in reality different. That this can so readily prove to be so in cases of this class shows how essential it is to ask in the first place what is the underlying principle.
In order to come within the statute an accident must occur not only “in the course of”—that is to say, during actual employment—but in addition must arise “out of” it. In other words, there is required to be shown something in the nature of a causal relation between the accident and an order, expressed or implied, given by the employer. As to how this causal relation is to be sought for and ascertained I ventured to make some observations in Thom v. Sinclair, 1917 A.C. 135, 55 S.L.R. 267, about the meaning of the expressions involving causality used in the Act. To these it is not necessary for me to add anything on this occasion. Now was there anything said or done by the employers in the present case that was a cause or reason of the accident? Through their agent they on the evening in question allowed the dead man leave to go ashore “for,” as the Sheriff-Substitute
Page: 190↓
I have, as I was bound to do, examined the previous decisions of this House on the type of question before us. But I have examined them, not with a view to finding mere analogy of circumstance, but in order to see whether they lay down anything which when properly applied to the facts found by the Sheriff-Substitute in this case prevents me from coming to the conclusion which appears to me to result from the application of a broad principle. As the result I think that we should hold that the Sheriff-Substitute was right in his conclusion that the accident was not shown to have arisen out of the employment, and that the appeal should be allowed.
It is not necessary in this view to consider whether the accident in the present case can properly be said to have arisen in the course of the employment, as required by the second branch of the condition which the statute imposes. If it were necessary to express an opinion on this point I should find difficulty in satisfying myself that when an employee is absent on his own business an accident which happens to him happens in the course of his employment merely because he is receiving wages and may be called on to return to work. A servant who has been allowed to go on a holiday to pay a visit to his own relatives, and while with them meets with an accident wholly unconnected with his employment can hardly be contemplated as meeting with it in the course of his employment. And if not, the circumstance that the leave of absence is only for a short time surely cannot alter the principle to be applied in deciding the question of liability. At some time this question will need consideration when it arises in a definite form. I doubt whether it was really disposed of in Moore v. Manchester Liners, [1910] AC 498, 48 S.L.R. 709.
I had the advantage of reading in advance the judgment which has just been delivered from the Woolsack in the present case, and I entirely concur with the observations on the meaning of the words “in the course of” made by the Lord Chancellor.
Page: 191↓
Now here the question is a different one. The engineer was not sent to the place where he met his death on his employer s order. That in my view completely distinguishes the case from the case of Stewart, but it does not, of course, solve the question in favour of the employer. Only a different class of cases come into view as illustrating decision in analogous circumstances. Expressed in terms of such cases the question would be, assuming that he was in the course of his employment, whether the case fell within the decision of Kitchenham or of Moore v. Manchester Liners.
I have said “assuming that he was in the course of his employment,” but I must now ask myself the question, Am I justified in making such an assumption? It is indeed assumed, or perhaps I should say dogmatically stated, by Lord Skerrington, who says—“The employment was continuous in the capacity of a ship's engineer, and the man having gone on shore on leave, he perished in the course of his employment.” I cannot say that I am surprised at his Lordship thus expressing himself, for he had authority to go on. He had the opinion of Moulton, then L.J., in Kitchenham's case, [1911] 1 KB 523, and that of Earl Loreburn in Moore v. Manchester Liners, [1910] A. C.498. With the utmost deference I do not agree with those opinions, and I think their soundness is not involved in any judgment of your Lordships' House. I am glad to see that your Lordships who have preceded me share my view on this point.
I shall first consider the words of the Act apart from authority. It is obvious that the addition of the words “and in the course of” are meant in some way either to qualify or further explain the words “out of.” My own view is that they do the latter. It is in one sense difficult to imagine that there could be any injury held as arising out of the employment which would not also be in the course of the employment. But it may well be that the determination of the question whether at the moment of the injury the workman was in the course of his employment may go to solve the question of whether the injury arose out of the employment. Let me instance the case of the domestic servant who is run over in the street. Given but the two facts that the man is, e.g., a butler, and that he is run over in the street, you would not be able to decide whether the injury arose out of the employment or not. The facts are consistent with either supposition. But given the further fact that either (1) he has been sent by the master on a message, or (2) that he is enjoying an evening out, then you can determine whether he is in the course of his employment or not, and from that, if being run over is one of the inherent dangers of the street, you will be able to determine whether the injury arose out of the employment or not. Now I have taken the illustration of a domestic servant purposely, because domestic servants are not, as colliers and other workmen often are, engaged from day to day, but are engaged for a term, and the accident that happens is during the period of their engagement. In my view “in the course of employment is a different thing from “during the period of employment.” It connotes to my mind the idea that the workman or servant is doing something which is part of his service to his employer or master. No doubt it need not be actual work, but it must, I think, be work, or the natural incidents connected with the class of work— e.g., in the workman's case the taking of meals during the hours of labour; in the servant's, not only the taking of meals, but resting and sleeping, which follow from the fact that domestic servants generally live and sleep under the master's roof.
Holding these views as to the meaning of the Act, I disagree with the dictum of Moulton, then L.J., who, speaking in Kitchenham's case of the judgment of this House in Moore's case, said—“I hold it to be settled that when a ship is in port and a sailor goes on shore with leave, his employment is not thereby interrupted.” Nor do I agree with the dictum of Earl Loreburn in the case of Moore—“In the case of a continuous engagement a man is in the course of his employment if the accident happen at any place where he may reasonably be at that time.”
I now turn to the point of whether I am bound to take the view which I personally do not hold in respect of decisions of this House.
I apprehend that the dicta of noble Lords in this House, while always of great weight, are not of binding authority and to be accepted against one's own individual opinion unless they can be shown to express a legal proposition which is a necessary step to the judgment which the House pronounces in the case. Now the dicta I have quoted were not as dicta agreed to by Lords Macnaghten and Mersey. They were pronounced in cases in which the sailor met with the accident in the course of his return to the ship.
I have had the advantage of reading the opinion which is about to be delivered by my noble friend Lord Atkinson. In that opinion he examines minutely all the cases decided as to sailors going from or returning to their ship. I concur in the view he takes of them, and it is unnecessary to duplicate such an examination. The upshot of it is that there is no case where liability has been found in which the accident has occurred at any place other than what may be termed the provided access to the ship. If an accident occurs there it may well be—and I agree it is involved in the decisions—that when a sailor is leaving his ship by the provided access, or has reached the provided access on his return, he has not left the course of his employment in the first case, in the second he has returned to it. And obviously if the provided access is defective, as was the case in Moore's case, it is easy to come to the conclusion that the accident arose out of the employment. I am therefore of opinion that the general proposition as to continuous employment enunciated by Lord Loreburn in Moore's case
Page: 192↓
It follows that in my view the mere fact in the present case that the man was under engagement as an engineer at the time that the accident happened is not enough to entail the consequence that the accident happened in the course of his employment. None the less, it may be that he was in the course of his employment. As the course of his employment was interrupted when he left the ship for his own purposes, so it would be resumed when he returned to the ship. If, therefore, the place at which the accident happened was in any fair sense the access to the ship, then the accident would be in the course of his employment. Now admittedly it is not shown that he was on the gangway or on anything that served as a gangway. The only ground for holding that he was within what might be termed the access to the ship lies in the fact that he was in the harbour, and that the harbour on the occasion was not open to the public.
I cannot think that the action of the military authorities in drawing a cordon round certain places turns what is a public place into an access to the ship. In Stewart's case the dock was the theatre of the man's employment, because he was sent there and he had to traverse the place. The point of the dock being a private dock was that it prevented the presence of the man there being the presence of a man in a public street going to his work, but that work not yet begun. In the present case the fact that the man would not have been admitted unless he had been a privileged person, and that his privilege arose from the fact that he was sleeping on board a ship which was lying in the dock, was a matter entirely of the arrangement of the military authorities, and had nothing to do with the relations between his employers and him.
I am therefore of opinion that the result at which the arbitrator arrived was right, and ought not to have been interfered with by the learned Judges of the First Division. I think that the appeal should be allowed and the judgment of the arbitrator restored; the respondents to pay the costs of the appeal, and expenses in the Court below.
Page: 193↓
Fletcher Moulton, L.J., in his judgment in the Kitchenham case, deals with his judgment in Moore v. Manchester Liners, in a passage which, though somewhat long, it is well to quote. It runs thus—“In the cases before us the accident occurred on the return of the seaman to the ship immediately prior to his actually getting on board. This is the critical moment when the dangers to which he is exposed change from being of the one class to being of the other class.’ By this, as appears from the context, the Lord Justice means the dangers to which he would be exposed as a member of the public as distinguished from those to which he would be exposed as one of the crew of the ship. He then proceeds—“And it will frequently be a difficult task to draw the line between the two. But I do not think it is difficult to lay down the general principle by which our decisions ought to be guided. The return to the ship is in the course of his employment, but the risks do not become risks arising out of his employment until he
Page: 194↓
Fletcher Moulton, L.J., dealing with this evidence, said—“In my opinion this is not sufficient to negative the possibility that the accident was due to an accidental slip on the wharf or to the sailor having gone to the edge of the wharf for his own purposes, perhaps to look over to see the state of the tide, and fallen over.”
The decision in the case of Marshall v. The “Wild Rose,” [1910] AC 486, 48 S.L.R. 701, is precisely on the same lines on this latter point as indeed is Wakelin v. London and South-Western Railway Company, [1912] A.C. 41. Reverting to the first point, I think I am safe in saying that we have not been referred to any case where a sailor returning to his ship recovered compensation for an injury by accident which he sustained unless he met with that accident by reason of the defective or insufficient character of the physical means provided by the owner for access to or egress from the ship to the quay or dock wall. In Cook v. Owners of s.s. “Montreal,” 6 B.C.C.220, Buckley, L.J., as he then was, laid it down that “in the obligations contractually existing between master and servant it is part of the duty of the master to afford the workman when he is dismissed reasonable facilities for leaving the place of employment, and if the servant is injured while availing himself of these facilities the master may be liable.” That statement of the law, and also the decision in Kitchenham v. Owners of s.s. “ Johannesburg,” were approved of in Webber v. Wasborough Paper Company, Limited, [1915] A.C. 51. In this last-mentioned case the means of egress from the ship provided by the master was a plank with one end resting on the vessel and the other resting on the rung of an upright iron ladder fixed to the quay wall. The seaman on going ashore, his day's work being done, walked along the plank in safety, but after he had gone a step or two up the ladder he slipped, fell into the harbour and got injured. ‘Lord Moulton said the County Court Judge appeared to him to have been of opinion that the ladder on which the plank landed the workman was not such a safe portion of the quay that the responsibility of the employer ceased when he had put the workman there. This in other words means that the mode of egress provided for those going from the ship to a safe place upon the quay was defective and the accident was caused by reason of the defect. Thus the risk to which the workman was exposed and from which he suffered was due to the defective means of egress from the ship, and therefore arose out of the employment which obliged him to avail himself of those means and encounter that risk.
In the face of these authorities it is, I think, impossible to hold that the risk to which the deceased in the present case was exposed as he walked along these quays had, before the accident, changed from that to which an ordinary wayfarer on the pier was exposed to that to which the deceased became exposed by virtue of his being a member of the crew of his ship. The risks to which he was exposed therefore did not arise out of his employment since he had not up to the time of the accident done or attempted to do anything specially connected with his employment on the ship. His employment was not, 1 think, to any extent the cause of the accident, proximate or remote.
The principles contended for on behalf of the respondent would lead to the most astonishing and, I think, unjust results. If it were sound, then a master who allowed his domestic servant to go on a visit to his friends in the country on the condition that he should return on a certain day if not sooner recalled, would be liable for an injury sustained by the servant in a railway accident when on his return journey to his master's house on the day named.
I am well aware that it has been decided by the cases of the Caledonian Railway v. Walker's Trustees, 7 A.C. 259–275, 9 R. (H.L.) 19, 19 S.L.R. 578, and in London Street Tramways Company v. London County Council, [1898] AC 375, that a decision of this House on a point of law is conclusive and binds the House in subsequent cases, but the decision itself with everything necessary involved in it is the thing which binds. For the reasons I have already given I do not think it can be taken that this House in Moore v. Manchester Liners did decide as a point of law arising on construction of the Workmen's
Page: 195↓
It was contended on the part of the respondent that the present case is governed by the case recently decided of Stewart and Son, Limited v. Longhurst. I cannot bring myself to think so. though of course I must feel my confidence in my own opinion somewhat shaken by the fact that my noble friend on the Woolsack has come to a different conclusion. Stewart v. Longhurst was one of those cases of which several have been decided recently, in which an employer who expressly or impliedly orders his workman to do a particular thing has been held to be responsible for an accident caused to the servant by a risk ordinarily attending the doing of that thing. For instance, if a master should send his servant into the street to post a letter, and the servant while on that errand gets run over in the streets, the master is held responsible, running over being one of the ordinary street risks. In Longhurst's case the owner of a barge got liberty from the owner of a private docks to place his barge in these docks for the purpose of having her repaired. He employed the deceased mechanic to repair her. He therefore necessarily hired him and impliedly ordered him to traverse the docks from the dock gates to the place where the barge lay by the route provided by the dock owners, and on knocking off work to re-traverse the docks by this same route. As between the workman and the employer the relative rights and obligations of the parties were the same as if the docks were the private close of the employer. The conditions under which the work was done must be taken to have been known to the employer. There was no allegation of neglect by the workman. He was on these premises, using this way of approach to his work, and from his work to get to the dock gates under his master's implied orders by virtue of his employment and in no other character or by virtue of no other right, he, without any negligence, strayed off his route when leaving his work and fell into the docks. The risk of doing so was, under the condition, I think, a risk incidental to the doing of the work he was by his master hired and commanded to do. Had the workman been walking about the private docks for his own pleasure, not by his master's orders, there might be some analogy between that case and the present, but in fact it was entirely otherwise.
The harbour of Ramsgate was at one time a public harbour. The Admiralty have since the war assumed control over it and its quays and piers. The respondents contend that this control turned the docks into such a private close as were the docks in Longhurst's case.
Under the regulations made by the naval authorities, persons wearing naval or military uniform and having business within the harbour are allowed by the authorities to enter it by certain places of access, and in order to entitle them to enter they must possess passes signed in the manner prescribed. It is scarcely necessary to say that no authority was produced to show that where the military, for the purposes of the war, draw a cordon around a certain area and only permit certain persons, duly authorised, to pass in or out of that area, that circumstance turns the area within the cordon into the private property of any person, certainly not the private property of such a person as was the employer of the deceased in the present case by whom or for whom the control was not imposed. Moreover, the authorities might give passes to whomsoever they pleased—might even allow the general public to pass through the entrances if they thought fit. The deceased obtained a pass on his way out in order that he might return again, but he was not ordered by his employer to go out. He was not sent to do any business for his employer. He owed no duty whatever to his employer to go out or to stay in the harbour. The only duty he owed to him was to be back in his ship that night. He might have never obtained a pass, never gone out of the harbour, have spent the evening in some ship within the harbour amongst his friends and walked about upon the quay or pier from which he subsequently fell, according as he desired, irrespective altogether of the wishes of his employer. Everything he did, with the exception above mentioned, he did, not by the orders express or implied of his master or to discharge any duty he owed to his master, but on his own initiative, for his own purposes, and according to his own desire, so that even if the harbour of Ramsgate could be considered to stand as between the employer and his workman in this case in the same relation as did the private docks stand in the Longhurst case, which I hardly think it did, I should still be of opinion that this case is as different from the Longhurst case as would be the case of a servant who was run over in the street while he was walking there for his own business or pleasure, from the case of such a servant who was run over in the street while walking there on some errand on which he was sent by his master. I think the authorities establish that in the former case the servant would fail to recover. For these reasons I am of opinion that the claimant on whom the burden of proof lies has failed to establish that the accident by which the deceased met his death arose either out of or in the course of his employment,
Page: 196↓
On the evening of February 25, 1916, the deceased man left his ship “Ferryhill” and went ashore for his own purposes and not on ship's business. He returned to the harbour about 10.30 p.m., and passing through an entrance by means of a pass duly signed and entitling him to do so, went on the quay with the object of making his way to his ship. No one witnessed the accident to the deceased, but the Sheriff-Substitute drew the inference that as the deceased was proceeding towards his ship he missed his way owing to the darkness prevailing, and falling into the harbour, was drowned. The body was found about 20 yards from the point of access to the ship from the quay, and was probably near the place of the accident. In ordinary times the harbour is a public harbour, and access to its quays has been ordinarily open to the public, but since the outbreak of the war the quay where the accident happened has been subject to the control of the naval and military authorities, and used conform to their regulations. The deceased prior to leaving the harbour on the night of the accident received a signed pass entitling him to return, and was in possession of the pass when he re-entered the harbour area.
On these facts the Sheriff-Substitute found in effect that it was not proved that the accident to the deceased arose out of his employment. In my opinion the Sheriff-Substitute drew the inference that at the time when the accident happened the deceased was on the quay for his own purposes and not on ship's business. There is evidence from which in reason this inference could be made, and if this is so the decision is, under this head of the case, wholly within the competence of the Sheriff-Substitute. The only other way in which an error in law could arise would be, that the Sheriff-Substitute did not apply the statutory directions in testing the question of liability, or, in other words, that he misdirected himself as to the meaning of the Legislature as expressed in the statute. I can find no indication that he made any such error. On the contrary, I think that he applied the right direction, viz., whether at the time of the accident the deceased was engaged in the duty or business of his employment, and whether, if he was so engaged, there was some form of causal relationship between such duty or business and the accident. No doubt the place where the accident happened is an important factor, but it is not a conclusive factor. For instance, in the present case, it is in my opinion very material to draw a clear distinction between a workman on his way to or on his return from his work, and a workman who is absent from his work for his own purposes. The proper inference in any particular case is one of fact, and not of law, subject always to two conditions, that the inference can, in reason, be made from the evidence, and that the statutory directions of the Act have been properly observed. With all respect to the opinion of the Lord President, I am unable to accept the view that it is immaterial whether the deceased went ashore on his own business or the ship's business, or that the question in debate in the appeal is governed by the case of Longhurst v. John Stewart & Company, [1916] 2 K.B. 803, and [1917] A.C. 249.
That case comes within the category of cases which determine that if a workman meets with an accident when using an access, or means of access, provided by his employer, and where the workman had no right to be except by virtue of his employment, such accident in the absence of special circumstances is incurred in the course of and arises out of the employment so as to make the employer liable to pay compensation. In some cases if an accident is incurred in the course of employment the only possible inference is that it also arose out of the employment, but this is not necessarily the case, and to entitle a claimant to compensation the two conditions must be fulfilled in any particular case. In the Court of Appeal L.J. Warrington refers to the view expressed by L.J. Farwell in Gane v. Norton Hill Colliery Company, [1909] 2 KB 539. Speaking of a collier, L.J. Farwell says—“He is employed not only to work in the pit, but also to do other things that he is entitled to do by virtue of his contract of employment; for example, he is entitled to do, and therefore employed to do, such acts as coming on the employer's premises, passing and repassing for all legitimate purposes connected with his work on the premises … All these things that he is entitled to do by virtue of his contract he is for the purpose of the Act employed to do, and they are therefore within the contract of his employment.” I desire to express my entire concurrence in the view expressed by L.J. Farwell, but it does not appear to me to have any application to a case in which a man employed on a ship is at the time of the accident away on his own account and not on the ship's business. I agree with what was said by Lord Dunedin when the case came on appeal to your Lordships' House. “Control was sought to be raised to the position of affording an absolute test whether employment had begun or ceased. I venture to go so far as to say that control of the place where an accident happens so far from being conclusive is neither here nor there except in so far as it may represent a fact tending to show that the accident arose in the course of the employment. The cases of Gilmour v. Dorman, Long, & Company, 1911, 4 B.W.C.C. 279, in England, and Hendry v. United Collieries, 1910 S.C. 709, 47 S.L.R. 635, are both illustrations
Page: 197↓
In my opinion the appeal should be allowed with costs here and below.
Their Lordships reversed the judgment of the First Division, restoring the decision of the Sheriff-Substitute, with expenses.
Counsel for the Appellants— Sandeman, K.C.— Macmillan, K. C.— Neilson. Agents L. M'Kinnon & Son, Aberdeen— Boyd, Jameson, & Young, W.S., Leith— Botterell & Roche, London.
Counsel for the Respondent— Christie, K.C.— A. M. Mackay— Sharp. Agents— Henry J. Gray, Aberdeen— Murray & Brydon, S.S.C., Edinburgh— Joseph N. Nabarro, London.