Scottish Court of Session Decisions

In a claim under the Workmen's Compensation Act 1897 at the instance of Mrs Agnes Young or Laidlaw, widow of the late Samuel Laidlaw, railway surfaceman, against the Glasgow and South-Western Railway Company, the Sheriff-Substitute ( Hall), acting as arbitrator, found that the following facts were proved:—“Finds that the deceased Samuel Laidlaw was a surfaceman in the employment of the defenders, and that for the three years preceding his death his average wages were 18s. 1 1 4d. per week: Finds that in January 1899, in consequence of a landslip which had begun to show itself on the up-line side of Blackfaulds cutting on the defenders' railway, the said Samuel Laidlaw and another surfaceman named walter M'Quat were appointed night watchmen to give warning to approaching trains in the

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event of the said landslip extending so as to become a source of danger: Finds that the two men were under the orders of James Gordon, the squad foreman: Finds that they were directed by him to stand one at the said landslip and the other at a point 500 yards down the line in the direction in which trains would approach from Glasgow, but that he left them to arrange between themselves as to the station to be taken by each: Finds that with the knowledge of the said James Gordon a fire was lighted on the six-foot-way opposite to the said landslip: Finds that on 26th January 1899 the said samuel Laidlaw and Walter M'Quat went on duty at 6 p.m., and that they were entitled to be relieved at 6 a.m. on the following day, though it was occasionally somewhat later before the relief arrived: Finds that from 6 p.m. to 10 p.m. the said Walter M'Quat was stationed at the outpost, and that from 10 p.m. onwards his place was taken by the said Samuel Laidlaw: Finds that while the said Samuel Laidlaw was stationed at the outpost he occasionally came up to the said fire, and that between 5 and 6 a.m. on 27th January 1899 he and the said Walter M'Quat sat down one on each side of it, when the said Walter M'Quat fell asleep: Finds that on awakening he discovered that the said Samuel Laidlaw had been struck by a train passing along the downline: Finds that this was a goods train from Carlisle to Glasgow, which reached the said cutting about six o'clock: Finds that the said Samuel Laidlaw died of the injuries which he sustained, in consequence of being struck as aforesaid, in less than an hour afterwards: Finds that at the time when he sustained the said injuries the said Samuel Laidlaw was employed on, in, or about a railway within the meaning of section 7, sub-section 1, of the Workmen's Compensation Act 1897: Finds it not proved that he was asleep, or that there was serious and wilful misconduct on his part, or that, if so, the said injuries were attributable to such misconduct.”

He accordingly awarded compensation.

The following note was appended to the judgment—“While there is no doubt as to the cause of Laidlaw's death, as M'Quat, the only person present at the time, was asleep, the circumstances attending it are involved in some obscurity. It appears that the goods train mentioned in the interlocutor had been preceded about a quarter of an hour before by an express train, also from Carlisle to Glasgow, of which M'Quat seems to know nothing, but by which Mitchell, the driver of the goods train, maintains that Laidlaw must have been struck and killed. On the other hand, both Mitchell and Watson, the fireman, depone that as they approached the fire in Blackfaulds cutting they saw a lamp apparently carried in a man's hand, and seeming to be moving about. There is unfortunately no evidence as to the position in which Laidlaw's lamp was found after the accident, but since M'Quat was asleep the man carrying the lamp must have been Laidlaw, who was therefore alive and awake when the goods train came up. As it was a very frosty night he may have slipped and fallen so as to be struck by the goods train, and indeed the accident can in no other way bea ccounted for assuming the accuracy of Mitchell's and Watson's observations. If this be so, the fact that Laidlaw, contrary to his instructions, was at the time in the company of his fellow-watchman, did not occasion the accident, since he might equally well have slipped and fallen in front of the goods train had he been in his proper station at the outpost. In any event, I am not disposed to hold that though Laidlaw failed in some respects to carry out the orders which he and M'Quat had received from the foreman he was guilty of serious and wilful misconduct. There was undoubtedly a certain amount of looseness in those orders in not fixing which of the men was to take the post at each of the two stations, and when Laidlaw came up to the fire for the last time after he had cleared a train from Glasgow which reached the cutting about five o'clock, M'Quat seems to be in some doubt whether it was not then his turn to have gone to the outpost. It was in the knowledge of Gordon that there was only one fire, and that it was lighted in the six-foot-way opposite to the landslip, and the evidence, including that of Gordon himself, seems to show that it was almost a matter of necessity that the man on duty at the outpost should occasionally resort to it. Even if Laidlaw did so to an extent which could be held to constitute misconduct, only his last visit to the fire can have had any connection with the accident which caused his death. On this last occasion it is undoubtedly the fact that Laidlaw and M'Quat sat down and smoked beside the fire, and it is assumed by the defenders that both fell asleep. As I have already said, this is at all events doubtful in the case of Laidlaw, but if it were true it would hardly, I think, in the circumstances, amount to serious and wilful misconduct, whatever view may as a general rule be taken of the blame attachable to a watchman who goes to sleep at his post. In the present case it was natural for Laidlaw to consider that the time at which he might reasonably expect to be relieved after a twelve hours' vigil in an exceptionally cold night was close at hand, and that he had passed the last train which was likely to approach the cutting from the Glasgow side before relief arrived. On the whole matter, therefore, I have come to the conclusion that the claim of the pursuer and her daughters to compensation under the Act is not excluded by anything known and proved to have been done by Laidlaw at the time of the accident.”

The Glasgow and South-Western Railway Company requested a case for appeal, and stated the following as the question of law—“Whether the injury to the deceased was attributable to serious and wilful misconduct on his part within the meaning of section 1, sub-section (2) ( c), of the Workmen's Compensation Act 1897?”

The Sheriff refused to state a case, and

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gave a certificate of refusal in the following terms—“I hereby certify that on this date I refused to state and sign a case in the arbitration Laidlaw v. The Glasgow and South-Western Railway Company, on the application of the defenders, because I am of opinion that the question of law stated in the draft case submitted to me was not raised by the admissions made or the facts proved before me, in respect that, assuming the deceased Samuel Laidlaw's temporary desertion of his post to have been serious and wilful misconduct, the accident which caused his death was not attributable to that misconduct.”

The Railway Company presented a note to the Court of Session praying for an order on the applicant to show cause why a case should not be stated by the Sheriff.

Mrs Laidlaw lodged answers.

By section 14 of Schedule 2 of the Workmen's Compensation Act 1897 it is provided that “in the application of this Act to Scotland … ( c) Any application to the Sheriff as arbitrator shall be heard, tried, and determined summarily … subject to the declaration that it shall be competent to either party, within the time and in accordance with the conditions prescribed by Act of Sederunt, to require the Sheriff to state a case on any question of law determined by him, and his decision thereon in such case may be submitted to either Division of the Court of Session, who may hear and determine the same finally, and remit to the Sheriff with instruction as to the judgment to be pronounced.” By section 1 it is provided that compensation shall be awarded subject to the proviso “( c) If it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall be disallowed.”

Argued for the appellant—A case should be stated. It was a question of law whether in the circumstances of the case a railway workman was guilty of serious and wilful misconduct in leaving his post— M'Nicol v. Speirs, Gibb, & Company, February 24, 1899, 1 F. 604; Todd v. Caledonian Railway Company, June 29, 1899, 36 S.L.R. 784. The facts found by the Sheriff disprove his conclusion that the accident was not attributable to the workman's fault, if fault there were, because if he had stayed at his post he would not have met with that particular accident, though he might have been knocked down by another train. If the Sheriff decides a fact when there is no evidence on which he can properly find it, that is a matter of law— Chandler v. Smith, 1899, 2 Q.B. 506, per A. L. Smith, L.-J., at page 510. If the facts show a question of law, it is the duty of the Sheriff to state it— Durham v. Brown Brothers, December 13, 1898, 1 F. 279.

Counsel for the respondent were not called upon.