Scottish Court of Session Decisions

Fanny Callaghan, with consent and concurrence of her father Bernard Callaghan, as her curator and administrator-at-law, claimed compensation under the Workmen's Compensation Act, from Thomas Maxwell, farmer, Lochlyoch Farm, Lanark, in respect of her having been rendered permanently incapacitated from working as a farm-servant in consequence of her right leg having been cut off immediately below the knee by the revolving knives of a steam threshing-machine at which she was engaged at the farm of William Coubrough at Sornfalla on 6th October 1898, she having been sent by Mr Maxwell on that day to Sornfalla to assist.

The Sheriff-Substitute at Lanark ( Fyfe), to whom the claim was referred, awarded compensation.

Thomas Maxwell required a case.

The Sheriff-Substitute held that the following facts, inter alia, were proved—“(8) That she (Fanny Callaghan) and the other girl Lawson were by the millman stationed on the mill platform on either side of him, and he fed the mill, their duty being to unbind and hand him the sheaves, which he put through an opening into the mill; (9) that this opening was protected by a folding cover, which served as the guard on that side of the opening; (10) that the female respondent and the other girl were specially directed to remain at their places where they were stationed, and were warned of the danger of moving about; (11) that in the course of the day the millman had occasion to leave his place and go underneath to clean the riddles which had got choked, and, notwithstanding said warnings, during the temporary absence of the millman, the female respondent, being disengaged, attempted to step across the opening for the purpose of speaking to the other girl who kept her place, but was standing with her back to the respondent; (12) that for the performance of her work she did not require to speak to this other girl, or to leave her place, and had she required to cross to the other side she could have done so without stepping across the opening; (13) that in crossing the opening her foot slipped in, and was caught by the revolving drum, and her right leg was taken off below the knee; (14) that she has thereby been permanently disabled from following her avocation of a farm-servant.”

The Sheriff-Substitute held in law, inter alia, that the female respondent had been injured by accident arising out of and in the course of her employment, and not caused by her wilful misconduct.

The questions at law included the following—“(4) Whether the accident, whereby the female respondent sustained personal injury, arose out of and in the course of her employment? (5) Whether the action of the female respondent in leaving her place and attempting to step across the opening in the machine, which caused the accident, amounted to serious and wilful misconduct on her part in the sense of the Workmen's Compensation Act?”

Argued for appellant on these questions—The accident had not arisen out of and in course of the employment. The girl had been specially ordered not to move about, and was warned of the danger of doing so. She was not working at the time she stepped across to converse with her companion. Her act in doing so was serious and wilful misconduct, to which the accident was attributable. She was therefore not entitled to recover under the Act — Smith v. Lancashire and Yorkshire Railway Company [1899], 1 Q.B. 141; Lowe v. Pearson [1899], 1 Q.B. 261.

Argued for respondent—The accident arose out of the employment and in course of it. Her duty required her to be on the platform of the machine, and the accident occurred in connection with her employment at the time. There was no serious and wilful misconduct. Mere neglect of orders was not per se serious misconduct— Durham v, Brown Brothers & Company, Limited, December 13, 1898, 1 F. 279; M'Nicol v. Speirs, Gibb, & Company, February 24, 1899, 1 F. 604; Tod v. Caledonian Railway Company, June 29, 1899, 36 S.L.R. 784. In any event it was a jury question whether the girl's action amounted to serious and wilful misconduct, and the Sheriff-Substitute acting as a jury had held that it did not.