Scottish Court of Session Decisions

This was an appeal from the Sheriff Court at Glasgow upon a case stated in an arbitration under the Workmen's Compensation Act 1897, between Catherine Harvie or Devine, widow of the deceased John Devine, as an individual, and also as tutor and administrator-in-law for her pupil daughter and her three other daughters, claimants and respondents, and the Caledonian Railway Company, defenders and appellants.

The case stated by the Sheriff-Substitute ( Spens) for the opinion of the Court was as follows—“This is an arbitration under the Workmen's Compensation Act 1897, brought before the Sheriff of Lanarkshire

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at Glasgow, in which the Sheriff is asked to grant a decree against the appellants ordaining them to pay to the respondents the sum of £163, 16s., in such proportions to each as the Court might direct, with legal interest thereon from the date of citation till payment, with expenses.

Proof was led before me and parties heard on 25th April 1899, when the following facts were established:—The said John Devine was employed by the appellants as a carter, and on 10th January 1899 the deceased was engaged within the general terminus of appellant's railway, Paisley Road, Glasgow, being on or in or about a railway within the meaning of the foresaid Act, as a carter, and there met his death under the following circumstances, viz.—Five carters in the employment of the appellants, in charge of five lorries respectively, were at the shed general terminus, Paisley Road, on the day of the accident. The object of their being there was to take delivery of certain chains, which were to be taken by them to a certain place outwith the foresaid general terminus, for the purpose of testing. One of these lorries was being loaded from a railway waggon by means of a crane. The other four were standing on the road leading to the crane, two on each side of it, and the horses facing towards the crane. This road is bounded on the south side by the shed, and on the north by a line of rails, on which at the time of the accident a train of waggons was standing. The lorry of which the deceased John Devine was in charge was on the north side of the road next to the waggon, and the witness Alexander Allison was in charge of a lorry that was on the opposite side. Devine and Allison were talking together in front of their horses while waiting for their turn to get their lorries loaded by the crane. From some unexplained cause Devine's horse started and went round to the right in the direction of Allison's lorry, and Devine ran forward to stop it. By this time Devine's horse was in close proximity to Allison's horse and lorry, and as Devine caught at the horse's head it gave a jerk forward, and the unfortunate man was crushed between his own lorry and Allison's, sustaining injuries which caused death almost instantaneously.

In these circumstances, the agent for the respondents having restricted their claim to £150, I awarded to the respondents the following sums, viz.—The sum of £50 to the respondent Catherine Harvie or Devine, the sum of £35 to the child Rose Ann Devine, £25 to the child Maggie Devine, and £20 respectively to Catherine and Elizabeth Devine, and I found the respondents entitled to expenses.

The following is the question of law which the appellants submit for the opinion of the Court:—Whether the accident to the deceased John Devine arose out of and in the course of the deceased's employment on or in or about a railway within the true intent and meaning of the Workmen's Compensation Act 1897?”

The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), section 1 (1), enacts as follows:—“If in any employment to which this Act applies personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the First Schedule to this Act.” Section 7 (1)—“This Act shall apply only to employment by the undertakers as hereinafter defined on or in or about a railway [and certain other employments mentioned]. (2) … Undertakers,’ in the case of a railway means the railway company.”

Argued for the appellants—(1) It was necessary under the Act that the accident in respect of which compensation was claimed should not only have arisen “in the course of” the employment but “out of” it. “Out of” meant something more than “in the course of.” It implied that there should be some causal connection between the employment and the accident. Here it was found that the accident arose from “some unexplained cause.” At least it was not found that there was any connection between the deceased's employment as a servant of a railway company and this accident. Indeed, it appeared that it was not so, for this was an accident that might have happened to any carter. The scheme of the Act was that it only applied to certain dangerous occupations, and only accidents arising “out of” these dangerous occupatious gave a right to compensation. Employment as a carter was not one of the dangerous employments to which the Act applied, and an accident which arose “out of employment as a carter and not “out of” employment as a railway servant did not give any right to compensation under the Act. (2) The fact that the railway company carried on business not only as a railway company but also as carters did not make them liable under the Act to those whom they employed not qua railway company but qua carters. When a company or firm carried on one business which fell under the Act and another which did not, they were not liable under the Act to those servants who were engaged in the employment to which the Act did not apply.

Counsel for the claimants and respondents were not called upon.