Scottish Court of Session Decisions

I must confess I should have had very great difficulty in agreeing with the judgment in the case of Falconer. I was not present when the case was decided, but if I had been I think that I should have been disposed to concur with Lord Moncreiff. In that event there would have been an equal division of opinion and the case would have had to be sent to Seven Judges.

I can quite imagine a case in which death or bodily injury might occur to a workman engaged at work and within premises dealt with by the Act, and yet where the master would not incur liability. Suppose a person having ill-will to the workman, and, intending to murder him, came into the premises and killed or injured him while engaged in his work. I think that that is a case which does not fall within the scope, meaning, intention, or good sense of the statute, and that the statute was not meant to make an employer liable for death or bodily injuries so occasioned.

But take another case, illustrative of a class of cases which in my opinion do fall within the scope of the statute. Suppose a man is engaged at work at the top of a long ladder placed against a high wall in premises dealt with by the Act. And suppose someone passing by, from carelessness but without any intention of evil, comes against the ladder and brings it down, and the man working on the ladder is killed by the fall. Or suppose that a stroke of lightning brings down the wall and the ladder, and that the workman engaged at his work at the top of the ladder is killed by the fall. I should have thought it clear that these were cases falling within the statute, and dangers which the statute was intended to provide against. They are illustrations of accidents occurring to a man in the course of a dangerous employment—accidents incident to that employment—and caused through no fault or negligence on the part of the workman.

It is unnecessary, however, to deal further with the subject in the meantime. In the present case I am of opinion with your Lordship that the accident occurred during and in course of the employment and arose out of it, and that the workman is entitled to compensation in terms of the statute.

Lord Trayner—In dealing with the Workmen's Compensation Act I think we should be careful not to extend the exceptional liability which that statute imposes beyond the limits which the statute itself expresses. At the same time, as that Act was passed to benefit workmen in dangerous or hazardous employment, it must be construed fairly, if not liberally, in their favour. Looking at the statute in that light, I am of opinion with your Lordship in the chair that the Sheriff here has erred. I see no reason, and have heard none, to induce me to doubt the soundness of the decision pronounced in the case of Falconer. On the contrary, my opinion of its soundness is fortified by the fact that it has been approved and followed by the Appeal Court in England. If this case was the same as the case of Falconer I should not hesitate to repeat the decision there given. But the cases are distinguishable in respect of a matter which I pointed out in the course of my opinion in the case of Falconer. I there said—“If the accident had arisen from the fault or neglect of a fellow servant when engaged in his work—that is, his employer's work—liability would have attached, because in that case it would have arisen out of the employment—out of the employment it may be, badly or carelessly executed—but still out of the employment. It would be properly incidental to the employment” ( Falconer, 3 F., at p. 567). I think that fairly describes the case before us. At the time the accident took place the two men were both engaged in their employer's work. They had not been so friendly with each other as they might have been, though I do not see much reason, or indeed any reason, to condemn the conduct either of one or other. But they were both at work, M'Intyre doing his work and Clark anxious to get at his work, and in the course of preparing himself for the continuance of his work. I think it was an accident arising out of the employment in which they were both engaged. In these circumstances I think that Falconer's case does not rule this one, and that the decision of the Sheriff should be recalled and the case remitted to him to fix the compensation to be awarded.

Lord Moncreiff—I am of the same opinion. The appellant in this case in order to succeed had to distinguish the case on the facts from the case of Falconer. I think he has succeeded in doing so, but the distinction is certainly a fine one, for, stated in one way, the facts of this case show that the accident occurred in the course and in consequence of a quarrel between two men, Clark and M'Intyre. There is not much blame attaching to either of them, but in point of fact they were both to some extent to blame, M'Intyre, the appellant, had taken away another man's brush, or at least a brush which did not belong to him, and on the other hand Clark, whose brush it was, when he tried to get it from M'Intyre, used unnecessary violence and attempted to take it by force. In that respect the facts here are less favourable to the appellant than the facts were to the injured workman in the case of Falconer, for the injured workman in Falconer's case was doing his work and was absolutely free from blame, the injury being caused by two fellow workmen who were working near him and who had stopped their work in order to have a bear fight. Nevertheless I think the view can be taken that in this case both Clark and M'Intyre were at work in their employment, that M'Intyre was actually working, and that Clark—if not actually engaged at his work—wished to get to it, and was

Page: 110↓