Scottish Court of Session Decisions

This was an appeal upon a case stated by the Sheriff-Substitute at Dunfermline ( Gillespie) in the matter of an arbitration upon a claim under the Workmen's Compensation Act 1897, made by Jane Sheriff or Gibson, widow of Alexander Gibson, painter, Musselburgh, as an individual, and also as tutor and administrator-in-law for her son William Gibson, claimant and appellant, against John Nelson Wilson, painter, Inverkeithing, respondent, The facts found proved by the Sheriff-Substitute were as follows—“In the summer and autumn of 1900 improvements had been in the course of execution on Inverkeithing Parish Church. These consisted, inter alia, of removing the gallery and stone staircases, and a brick or stone wall extending across the church behind the gallery to the height of the gallery, inserting ornamental rafters into the ceiling,

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and painter work—the painter work being purely decorative. The respondent was the contractor for the painter work. The church exceeded 30 feet in height. At the time of the accident a scaffolding about 20 feet in height was used by the respondent's workmen, including the appellant's husband, for the purpose of papering the ceiling. The only other purpose for which the scaffolding was used was for the joiners putting up the ornamental rafters before mentioned, which formed no part of the structure. No machinery driven by steam, water, or other mechanical power, was being used. The deceased Alexander Gibson, the husband of the appellant, entered the employment of David Wilson, painter, Dunfermline, the father of the respondent, on Thursday, 2nd August 1900. He worked for David Wilson in Dunfermline on that and the following day, Friday, and also for three hours on the morning of Monday, 6th August, when the respondent, who to a large extent superintended his father's business as well as his own (his father being an invalid), got a loan of Gibson's services to work at his job at Inverkeithing Parish Church. The respondent went with Gibson to Inverkeithing Church and instructed him what to do, viz., to paper the ceiling, which he worked at for the rest of that day. On Tuesday morning Gibson arrived at the door of the church at six o'clock, whieh was his hour for beginning work. Having got the key from a fellow-workman he put it into the lock and turned the key, but it went round and round without moving the lock. The key was one of those keys which if pushed in the right length will turn the lock, but which if pushed in as far as they will go, as Gibson pushed it, will not act. After this ineffectual attempt to get into the church Gibson proceeded northwards along the pavement of Church Street, a distance of about 80 feet from the church door, to the iron railing which fences the yard of the infant school from the street. The schoolyard is separated from the churchyard by a wall about 7 1 2 feet high running east and west and joining the railings at right angles. Gibson climbed up on the school railing, from thence sprang on to the wall, climbed down into the churchyard, and got into the church by a window. While he was climbing up on the school railing one of the spikes pierced his foot. He could have obtained access to the churchyard by another gate, of which a key was kept by the burgh officer, who lived within less than a minute's walk of the church door, and Gibson was aware of this. There was no reason, however, for thinking that in climbing up the school railing he was actuated by any other motive than a wish to get to his work as quickly as possible. After getting into the church he sent for a handkerchief and had his foot tied up. During the rest of the week he continued to work in the church until the usual finishing time on Saturday the 11th August. On Saturday the foot had become much swollen, and he went home to Musselburgh. Thereafter tetanus set in, of which he died, the tetanus being the result of the injury to his foot. The respondent had no control over the premises in which the accident happened, and indeed had nothing whatever to do with them.”

On 13th November 1900 the Sheriff-Substitute pronounced an interlocutor whereby he found in law that the claim failed on two grounds, viz., (1) that the accident to the deceased did not arise out of and in the course of his employment, and (2) that the employment was not one to which the Workmen's Compensation Act applies, and accordingly assoilzied the defender.

The questions of law for the determination of the Court of Session were as follows—“(1) Whether the accident by which the deceased Alexander Gibson was fatally injured arose ‘out of and in the course of his employment’ in the sense of section 1 (1) of the Workmen's Compensation Act 1897? (2) Whether the said employment was one to which the Workmen's Compensation Act 1897 applies? (3) Whether the respondent was the employer of the deceased Alexander Gibson within the meaning of said Act at the time of the accident?” Argued for the claimant and appellant— On question 1—The accident arose “out of and in the course of the employment.” When the deceased arrived at the churchyard gate his employment had commenced, and his working hours had begun to run. If, in finding that the key would not unlock the gate, he had stood still and waited, he would have been in the employment of his master. It was the duty of the master to provide access to the work, and in attempting to get as soon as possible to his work the deceased was acting in his master's interests. As in the present case the hours of employment had begun to run, the case was in a more favourable position for the claimant than in Hotness v. Mackay & Davies, 1899, 2 Q.B. 319, where the workman had been injured on the way to his work. The mere fact that the place where the accident happened was not under the master's control did not exclude the application of the statute— Powell v. Brown, 1899, 1 Q.B. 157. And the fact that the act that caused the accident was outside the ordinary course of the employment did not exclude the application of the statute if that act was done in an emergency— Rees v. Thomas, 1899, 1 Q.B. 1015. Nor did the circumstance that the workman had chosen a method attended with danger put him outside the scope of the statute— Durham v. Brown Brothers & Company, Limited, December 13, 1898, 1 F. 279; Menzies v. M'Quibban, March 13, 1900, 2 F. 732. On question 2—The employment was that of repairing a building more than 30 feet in height, by means of a scaffolding, and was therefore one to which the Act applied— Hoddinott v. Newton, Chambers, & Company, Limited, 1901, A.C. 49. On question 3—The respondent had contracted to perform a substantial part of the repair, and was therefore an undertaker— Mason v. A. R. Dean, Limited, 1900, 1 Q.B. 770. The deceased having been engaged working under and on behalf of the respondent on

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the day of the accident, and for four days thereafter, the respondent was his employer in terms of the Act.

Counsel for the respondent was not called on.