Page: 483↓
[Sheriff-Substitute at Cupar.
Facts:
A worker in a spinning mill was injured in attempting to clean a teaser card machine at which she was working while the machine was in motion. It was the strict rule and practice of the mill, known to the worker, that no cleaning should be done unless the machinery was stopped.
Held that the accident was attributable to the serious and wilful misconduct of the worker within the meaning of sec. 1 (2) of the Workmen's Compensation Act 1897, and that her employers were consequently not liable in compensation.
This was an appeal in an arbitration under the Workmen's Compensation Act 1897, before the Sheriff-Substitute of Fife at Cupar ( Armour), between Susan Guthrie, millworker, Leven, claimant and appellant, and The Boase Spinning Company, Limited, Leven, respondents.
The facts stated by the Sheriff-Substitute in the case for appeal to be admitted or proved were as follows:—“That on 18th August 1900, about 7·30 o'clock a.m., the appellant received injuries at a teaser card machine, wrought in the hand-hackling shop of the respondents' factory, whereby she lost her right arm. That said injuries were sustained by the appellant starting the machine contrary to the rule aftermen—tioned, and immediately there after removing the guard, viz., the lid of the stour-box, and proceeding to clean out the stour-box with her hand, although a brush was provided for the purpose. The stour-box was underneath the machine and inside the frame thereof. In doing so her hand was caught between the large cylinder and the stripper cylinder underneath the machine and her arm drawn in. That said cylinders were well fenced and guarded, and the working of the machine simple. That, while it was the duty of the appellant to clean her machine, it is the rule and practice of the factory that the machine should only be cleaned three times a day, when the machinery is stopped for that purpose, and further it is a strict rule and practice that no cleaning of machinery is to be done unless the machinery is stopped. Of this rule and practice the appellant was aware. Copies of the rule were posted in the machine room but not in the hand-hackling shop where the appellant was working on the day of the accident. The machine room and the hand—hackling shop form one department under the same foreman, The appellant had been employed in the machine room for a period of nearly five years. That at the time of the accident there was no occasion for the appellant cleaning the machine, or the stour-box which was a art thereof, and in any case she could have stopped the machine with little or no trouble. The ordinary time for cleaning the machine, viz., before the next meal hour or 9 a.m., had not arrived.”
On these facts the Sheriff-Substitute held that the accident, although arising out of and in the course of the appellant's employment, was occasioned by the appellant, contrary to the above rule and without necessity, having removed the guard, viz., the lid of the stour-box, and attempted to clean the machine or the stour-box while the machine was in motion, and that the appellant's injuries were attributable to her serious and wilful misconduct in the sense of the Act. The Sheriff-Substitute therefore disallowed her claim.
The question of law for the opinion of the Court was—“Upon the facts stated, was the injury to the appellant attributable to serious and wilful misconduct within the meaning of the said Act?”
The Workmen's Compensation Act 1897 enacts (section 1) (1)—“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.” (2) “Provided that …( 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—The Sheriff-Substitute was wrong in holding that the appellant's breach of the rule that the machinery must be stopped before cleaning amounted to “serious and wilful misconduct.” Breach of a rule was not per se serious and wilful misconduct— M'Nicol v. Speirs, Gibb, & Co., February 24, 1899, 1 F. 604, and the facts stated by the Sheriff did not exclude the idea that the appellant might have thought, although mistakenly, that this was a proper thing to do. The fact that the rule was not posted in the room where the appellant worked supported that view. The Court would reverse the finding of the Sheriff if they thought that on the facts stated the appellant had not been guilty of serious and wilful misconduct— Callaghan v. Maxwell, January 23, 1900, 2 F. 420.
Counsel for the respondents were not called upon.
Page: 484↓
The Court answered the question of law in the affirmative and dismissed the appeal.
Counsel for the Claimant and Appellant— Wilson, K.C.—Wilton. Agent— David R. M'Cann, S.S.C.
Counsel for the Respondents— Watt, K.C.—Cook. Agents— Cuthbert & Marchbank, S.S.C.