Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Caledonian Railway Co. v. Bathgate [1901] ScotLR 39_246 (10 December 1901)
URL: http://www.bailii.org/scot/cases/ScotCS/1901/39SLR0246.html
Cite as: [1901] SLR 39_246, [1901] ScotLR 39_246

[New search] [Printable PDF version] [Help]

SCOTTISH_SLR_Court_of_Session

Page: 246↓

Court of Session Inner House Second Division.

[Sheriff-Substitute at Glasgow.

Tuesday, December 10. 1901.

39 SLR 246

Caledonian Railway Company

v.

Bathgate.

Subject_1Reparation
Subject_2Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37), secs. 1 and 7
Subject_3Accident “Arising out of and in the course of” Employment
Subject_4Employment “About” a Railway — Carter Injured 315 yards from Railway Station in consequence of Horse Bolting on Leaving Station.
Facts:

A carter in the employment of a contractor, who had a contract with a railway company for the cartage of goods to and from a station belonging to the company, had delivered certain goods there, and was leaving the station for the stables with his horse and lorry, having finished his day's work. Before the back of the lorry was clear of the crossing of the footpath which passed the entrance to the station, his horse bolted, and ultimately ran into a shop 315 yards from the station, with the result that the carter was injured. Held that the accident did not occur “on or in or about” a railway within the meaning of the Workmen's Compensation Act 1897, section 7, and consequently that the railway company were not liable in compensation— diss. Lord Moncreiff, who held (1) that the accident arose out of and in the course of the workman's employment within the meaning of the Workmen's Compensation Act 1897, section 1; and (2) that it occurred “about” a railway within the meaning of section 7 (1).

Headnote:

This was an appeal in an arbitration under the Workmen's Compensation Act 1897, before the Sheriff-Substitute at Glasgow ( Balfour), between the Caledonian Railway Company, appellants, and Archibald Bathgate, carter, claimant and respondent.

Page: 247↓

The facts stated by the Sheriff-Substitute as admitted or proved were as follows:—“(1) That the respondent was a carter with Wordie & Company, contractors, who had a contract with the appellants for the cartage of goods to and from the appellants' station in Buchanan Street, Glasgow. (2) That on 27th October 1900 the respondent had been in accordance with his usual practice collecting goods from various firms in town, and had carted them to the appellants' station and delivered them there. (3) That he was leaving the station with his horse and lorry, when the horse took fright at the gate of the station. (4) That on the occasion in question he had finished his day's work, and was proceeding to the stables when the accident occurred. (5) That the approach to the station from Buchanan Street is by means of a crossing of the footpath of Buchanan Street, and that the lorry was on the crossing, and the hind end of the lorry was not clear of the crossing of the footpath when the horse reared up and bolted. (6) That the respondent and another man on the lorry did all in their power to control the horse, but it got beyond their control and dashed down the incline in Buchanan Street until it came to the top of Dundas Street, where it dashed into an apothecary's shop, and the respondent's left leg was crushed between the wall and the lorry. (7) That the respondent's leg had to be amputated, and he is now unfit for his work as a carter. (8) That the horse continued on its course without any interruption until it dashed into the apothecary's shop, and the shop is at a distance of 315 yards from the entrance of the station. (9) That the respondent had been about ten months in the employment of Wordie & Company, and his duties were to deliver goods from the station in the morning to various places in town, and in the afternoon he was regularly employed collecting goods from various houses in town and delivering them at the station, where his work was finished. (10) That he was not employed in any other work, either on behalf of the appellants or on behalf of Wordie & Company, after he delivered the goods at the station. (11) That Wordie & Company have a contract with the appellants whereby they carry their traffic from the town to the station or from the station to the town at so much per ton, and, generally speaking, the work done under the contract is that Wordie & Company go to the station and load goods and deliver them to various houses in town, and they also go to various houses in town and lift goods and deliver them to the Railway Company at the station.”

In these circumstances the Sheriff-Substitute found in law “(1st) That on the occasion in question the respondent was employed on, in, or about a railway, and the accident arose from the bolting of the horse, which took place at the railway station. (2nd) That the appellants were the undertakers in the sense of the Workmen's Compensation Act; and (3rd) that they contracted with Wordie & Company for the execution by them of their cartage work, and they are liable under the Act to Wordie & Company's workmen in respect of any accident arising out of and in the course of their employment.” The Sheriff-Substitute accordingly awarded the respondent compensation.

The questions of law for the opinion of the Court were—“1. Whether in view of the fact that the respondent was in the employment of Messrs Wordie & Company, carting contractors, who have contracted with the appellants to carry goods to and from appellants' station at a fixed rate per ton, and that the respondent had delivered at Buchanan Street Goods Station a load of goods falling under the contract with his employers, and at the time of the accident was proceeding to the stables with his horse and empty lorry, the respondent sustained personal injury by accident arising out of and in the course of employment by the appellants as undertakers in the meaning of the Workmen's Compensation Act 1897? 2. Whether, in view of the fact that the horse attached to the lorry in charge of the respondent bolted when on the foresaid crossing outside the gate of Buchanan Street Goods Station, and that the respondent was injured at a point 315 yards distant from said station, the respondent was injured in employment on or in or about a railway.”

In the Court of Session the appellants did not dispute that they were the undertakers within the meaning of the 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 employers shall, subject as hereinafter mentioned, be liable to pay compensation.” Section 7 (1)—“This Act shallapply only to employment by the undertakers as hereinafter defined ( inter alia) on or in or about a railway.” …

Argued for the appellants—(1) The accident to the respondent did not arise out of and in the course of his employment— Gibson v. Wilson, March 12, 1901, 3 F. 661, 38 S.L.R. 450; Holness v. Mackay and Davis ( 1899) 2 Q B 319. (2) The respondent's employment was not “on or in or about” a railway. Clearly it was not “on or in” the railway. Nor was it “about” a railway. That word, according to the decisions, implied local contiguity to the railway or factory, and the workman's claim had been rejected where the accident had occurred within a less distance than in the present case, viz., 315 yards— Kent v. Porter, March 20, 1901, 38 S.L.R. 482; Brodie v. North British Railway Co., November 6, 1900, 3 F. 75, 38 S.L.R. 38; Barclay, Curle, & Co. v. M'Kinnon, February 1, 1901, 3 F. 436, 38 S.L.R. 321; Lowth v. Ibbotson (1899), 1 Q.B. 1003. Although the horse bolted from a point near the railway, the accident could not be said to have occurred there, but at the point where it dashed into the shop.

Argued for the respondent—(1) The accident occurred in the course of the respondent's employment— Tod v. Caledonian
Page: 248↓
Railway Co., June 29, 1899, 1 F. 1047, 36 S.L.R. 784; Holmes v. Great Northern Railway Co. (1900), 2 Q.B. 409. (2) It occurred “about” a railway. The accident was in truth the bolting of the horse, which clearly happened “about” the railway, although the consequences, i.e., the injuries, happened 315 yards away. The case was the same as if the horse had bolted from within the premises, in which case the appellants would have been liable— Monaghan v. United Collieries, Limited, November 27, 1900, 3 F. 149, 38 S.L.R. 92; Strain v. Sloan & Co., March 13, 1901, 3 F. 663, 38 S.L.R. 475; Fenn v. Miller (1900), 1 Q.B. 788.

Judgment:

At advising—

Lord Justice-Clerk—This case raises one of those questions as to the reading of the Workmen's Compensation Act which are so numerous, and sometimes not easy to decide. The facts are very fully and clearly stated by the Sheriff-Substitute in the case, and the only one of his decisions in law which I think is open to question is the first, in which he found that “on the occasion in question the respondent was employed on, in, or about a railway, and that the accident took place from the bolting of the horse, which took place at the railway station.” The latter part of this finding seems to be more a finding in fact than in law, and must be taken along with the more specific findings in fact. [ His Lordship read the findings.] I am of opinion on these facts that the statute does not apply. The horse and cart were no longer in the premises when the occurrence began which led to the accident, and it is not found that there was anything existing or being done connected with the railway or its premises which caused the horse to rear and run away. No cause is stated as matter of fact. There is nothing except this, that the horse being on the street, “took fright … reared up, and bolted,” that it got beyond the control of those on the lorry, although they did all in their power to control it, and that in consequence after running about 315 yards it dashed into a shop, and thus caused the injury to the driver. I feel unable to hold in law that the accident happened when the pursuer was employed on, in, or about the railway. Even if the whole incident beginning just outside the railway on the street could be held to be the accident by which the pursuer was injured, which is I think more than doubtful, I do not think it can be said to have happened so that these words could apply to it. Hitherto the words “or about” have been held to cover cases where the party though not bodily within the factory was engaged in work at it, as for example where a carter on the street at the factory was having his cart loaded or unloaded by appliances of the factory, or the like. I do not think the word can be applied to the case of a man who, outside the limits of the factory, after his work has been completed, is injured by the running away of the horse which he is taking home to another place than the factory, there being no facts connecting the running away with the factory or anything done in or from it as a cause.

I therefore think that it should be held that the respondent was injured while in the employment of the appellants, but not on, in, or about a railway, and that the question should be answered accordingly.

Lord Young—I agree in thinking that the Sheriff-Substitute was in error, and that this accident does not fall under the provisions of the statute.

Lord Trayner—I have had considerable difficulty in arriving at a decision upon this case, and have not always been of one mind regarding it. But I have come to be of opinion that the injuries for which compensation is asked were not sustained “on, in, or about” a railway, and that therefore the appeal should be sustained.

Lord Moncreiff—The first question to determine is at what place for the purposes of this case the accident occurred—was it at the place where the horse bolted, that is, the entrance to the station, or the place 315 yards off, where the respondent's left leg was crushed? If at the latter, it did not occur “in or about” the railway. But I am of opinion that the accident must be held to have happened at the place first named. It was there that the respondent was first put in peril, he continued in peril the whole of the distance, and between the time that the horse bolted and the time when the respondent's leg was crushed he was doing his best in the interest not only of himself but of his employers to pull up the horse and escape injury.

There remaintwoquestions—first, whether when the horse bolted the respondent was engaged in the employment of the appellants; secondly, if he was so engaged, whether the accident occurred, that is, the horse bolted, “in or about” the appellant's railway. These questions must be considered separately.

1. As to the first, I am of opinion that the accident arose out of and in the course of the respondent's employment in the sense of the first section of the Act. A coachman or a carter is acting in the course of and within the scope of his employment when he is coming from or returning to his stables, as much as when he is driving his master or his guests or carrying his luggage or goods. The fourth section of the Act places the servants of contractors who are engaged by undertakers to work for them in the same position as regards compensation as if they had been their own servants.

It is said here that the respondent having delivered goods at the station, his connection with the appellants as employers was at an end from the moment when the goods were delivered. I am unable to take this view. This was not casual employment. The ninth finding in fact is to the following effect—[ His Lordship then read the Sheriff-Substitute's ninth finding]. If, as I must hold, that finding is correct, the respondent had been executing work for the

Page: 249↓

appellants continuously and exclusively for ten months, just as if he had been a carter in their immediate employment.

But besides, it would be too narrow a view to take of the Act to hold that the moment a contractor's servant has unloaded goods carried for the undertakers all liability of the latter immediately ceases. The appellant's argument would admittedly have been the same if the goods had been delivered inside the station and the horse had bolted there, run through the entrance into the street and upset the driver half-a-mile away. Take the converse case of the carter being crushed against the gate-post on entering the station premises with an empty cart to take up a load of goods at the station. Could it have been said that the accident did not arise out of and in the course of his employment? I cannot accept that view, and therefore I think that when the accident occurred the respondent must be held to have been still in the employment of the appellants.

2. But this is not sufficient, because the respondent cannot recover unless the accident occurred “in or about” the railway. Upon this point I have little doubt. The horse bolted when it had barely cleared the entrance to the station; the hind wheels at least of the lorry had not even reached the causeway. It has been decided again and again that an accident occurring to a workman immediately outside a factory while the cart or lorry at which he is working is standing on the causeway is an accident occurring about a factory. In the present case the lorry had not even reached the causeway. It is true that at the moment the carter was not engaged in loading or unloading goods but on this question it makes no difference that instead of taking a load into the station the respondent had delivered a load and was coming away. I therefore think that as regards proximity the accident occurred about the railway in the sense of the statute.

I am therefore of opinion that the Sheriff has arrived at the right result, and that both questions should be answered in the affirmative.

The Court found that the respondent was not on, in, or about a railway when the accident occurred; therefore sustained the appeal, recalled the award of the arbitrator, and remitted to him to dismiss the claim.

Counsel:

Counsel for the Appellants— Dundas, K.C.— King. Agents— Hope, Todd, & Kirk, W.S.

Counsel for the Claimant and Respondent— Watt, K.C.— Christie. Agent— James G. Brydon, Solicitor.
1901