Scottish Court of Session Decisions

The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), section 1 (1) enacts— “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.”

In an arbitration upon a claim by John M'Allan (respondent) against The Perthshire County Council, Western District, Dunblane (appellants), under the Workmen's Compensation Act 1897, the Sheriff-Substitute at Perth ( Sym) awarded compensation. At the request of the defenders he stated the following case: — “The appellants are the authority having control of the roads in the Western District of Perthshire, and the respondent, who is sixty-five years of age, was employed by them in road mending from 24th July till the beginning of September 1905, at a wage of 3s. 0d. per day. On 21st August 1905 the respondent when stepping down from a steam roller belonging to the appellants received an injury to his left leg below the knee, which ultimately resulted in periostitis of the leg. He thereafter presented an application for compensation under the Workmen's Compensation Act. At the date of and for some time prior to the accident the appellants’ steam roller was being used in repairing the road between Kippen Station and Thornhill, which crosses the river Forth at the Bridge of Frew. The roller was under the charge of an engineinan named M'Callum, assisted by a man named M'Arthur, who acted as fireman and flagman. It was exclusively the duty of M'Callum and M'Arthur to work, clean, oil, and fire the engine. The work of repairing the road was under the charge of M'Diarmid, a foreman surfaceman, who acted under the directions of the road surveyor, and the duty of the respondent was to sweep and to put ‘blinding ’ on the part of the road on which the roller was working. The respondent was subject to the orders of M'Diarmid, but also occasionally required to take the directions of M'Callum, the engineman, as to the particular piece of road which was to be prepared for the roller. For the sole use of the engineman and fireman the appellants provided a moveable wooden hut, which at the date in question was stationed at the Bridge of Frew. Instead, however, of occupying the but at night, the engineman and fireman, who were living in Doune, cycled backwards and forwards to their work, and allowed the respondent to sleep in the hut. The respondent, w'ho had been lodging at Thornhill, was glad to get leave from the engineman to stay all night in the hilt. The hour for commencing work was 7 a.m. It took a short time, however, to get up steam, and therefore the fire of the engine needed to be attended to before 7 a.m. In order to save him from returning before that hour in the morning, the engineman arranged with the respondent to break up the engine fire in the mornings before he arrived. The said arrangement was a mutual convenience to the engineman and the respondent. In accordance with this arrangement between him and the engineman the respondent, about 6-30 a.m. on the morning of the 21st August, went on to the engine which was drawn up near the side of the road for the purpose of attending to the fire. It was when he was stepping down from the engine a few minutes later, and before seven o'clock, that he sustained the injury to his leg. It was not part of the duty for which the respondent was employed or paid to attend to the engine or to work before 7 a.m. Having regard to the manner in which the

Page: 593↓

Supreme Court has interpreted the words ‘arising out of and in the course of the employment,’ I am of opinion that the accidental injury to the respondent's leg must be held to be within these words. … I have therefore found the respondent entitled to compensation, and awarded a certain compensation.”

The following question of law was sub-mitted for the opinion of the Court — “(1) Whether the respondent's accident arose out of and in the course of his employment by the appellants within the meaning of section 1 (1) of the Workmen's Compensation Act?”

Appellants argued—The accident did not arise “out of and in the course of” respondent's employment. “Out of and in the course of” involved two considerations—(1) the time of the accident; (2) the scope of the duties for which the workman was employed. As to “time,” he was injured before the hour at which his employment began; as to “scope of duties,” the work upon which he was engaged at time of accident was entirely beyond and outwith that for which he was employed. It was not a case of helping in an emergency or danger, or of doing something to further master's interest, but was a voluntary arrangement to do another's work. The following cases were in appellants' favour — Callaghan v. Maxwell, January 23, 1900, 2 F. 420, 37 S.L.R. 313; Falconer v. London and Glasgow Engineering and Iron Shipbuilding Company, Limited, February 2$, 1901, 3 F. 564, 38 S.L.R. 381; Gibson v. Wilson, March 12, 1901, 3 F. 061, 38 S.L.R. 450; Benson v. Lancashire and Yorkshire Railway Company, [1904] 1 KB 242. The case of Sharp v. Johnson & Company, Limited, [1905] 2 KB 139, was distinguishable.

Argued for the respondent—The accident arose “out of and in the course of the employment,” because but for that employment it could not have occurred. “In the course of” referred, it was true, primarily to time, but the Courts had construed questions of time liberally and had not debarred a workman from compensation because the accident had happened a little before or after strict working hours— Sharp v. Johnson & Company, Limited, cit. sup. Similarly, too, the fact that he was not actually engaged upon the work for which he was hired was immaterial, if he was acting in a reasonable manner and in his master's interest, or that of a fellow-workman. Mensies v. M'Quibban, March 13, 1900, 2 F. 732, 37 S.L.R. 526, was a favourable authority, and showed that this latitude was extended to cases other than those of danger and emergency.