Scottish Court of Session Decisions

Mrs Mary Ann Low or Jackson, in the Sheriff Court at Edinburgh, claimed from the General Steam Fishing Company, Limited, compensation under the Workmen's Compensation Act 1906 in respect of the death of her husband, the late Robert Slimon Jackson, watchman.

In the arbitration the Sheriff-Substitute (GUY), on July 8th 1908, found the defenders liable for £150 as compensation, and refused to state a case.

The defenders appealed to the Court of Session by note, stating that—“The facts admitted or proved are as follows:—(1) That the respondent is the widow of the late Robert. Slimon Jackson; (2) that the appellants are a limited company carrying on business as trawlers at Granton; (3) that the said Robert Slimon Jackson was in the employment of the appellants, his employment being to watch the trawlers while they lay at Granton Harbour between their voyages; (4) that about 4 p.m. on Saturday, 22nd February 1908, he went on duty as watchman of four trawlers belonging to the appellants, moored to Granton quay, his duty in connection with these being expected to terminate about 5 p.m. on the following day; (5) that in connection with said duty it was necessary for him to be at times on the quay at Granton; (6) that during the twenty-five hours of his continuous duty he had to provide his own food, which was sometimes brought to him by members of his family; (7) that on the night of said Saturday, 22nd February, between nine and ten p.m., he left the trawlers and went to Wardie Hotel, which is a short distance from the harbour, to obtain some refreshment; (8) that the refreshment partaken of by him at the hotel consisted of half a glass of whisky and a glass of beer; (9) that he was absent from the boats for a very short time, and on returning to the quay along with two friends he proceeded to descend the fixed ladder attached to the quay for the purpose of getting on board one of the trawlers, and while doing so he slipped and fell into the water and was drowned; (10) that said accident arose out of and in the course of his employment with the defenders; (11) that the average weekly earnings of the deceased were 6s.; (12) that the respondent was wholly dependent upon her said husband's earnings, and was the only person so dependent.

Page: 56↓

The question of law proposed to be submitted for the opinion of the Court is whether the deceased was drowned through an accident arising out of or in the course of his employment.

The appellants pray for an order on the respondent, the said Mrs Mary Ann Low or Jackson, to show cause why a case should not be stated by the Sheriff, for the following reasons:—( First) Because the deceased was a watchman who, on the above findings, left his employment to obtain whisky and beer, and was drowned while attempting to return to his duties as watchman, and the appellants accordingly maintain that no compensation is due. ( Second) Because the question, whether the deceased was or was not killed through an accident arising out of or in the course of his employment under the conditions found proved as above, is a question of law and not of fact.”

The Sheriff-Substitute issued the following certificate and note:—“The Sheriff-Substitute refuses to state a case for the opinion of the Court of Session, as in his view the question proposed is not a question of law but of fact, and that the arbitration disclosed no controversy between the parties except on questions of fact. Note.—I have revised the findings in fact to bring them into conformity with the proof in the proceedings.”

Answers to the note were lodged by the pursuer, submitting that the proposed question was, in view of the findings in fact of the Sheriff-Substitute, not a question of law in terms of the Act but only a question of fact, that it had been decided as such by the Sheriff-Substitute as arbitrator, that he found that there was no controversy in law between the parties, and that it was incompetent in the circumstances for the Sheriff-Substitute to state a case.

The Court called on counsel for the respondent to argue whether the tenth finding as revised by the Sheriff-Substitute could be treated as a finding in fact.

Argued for the respondent—A finding by an arbiter under the statute that an accident arose out of and in the course of the employment was a finding in fact— Henderson v. Glasgow Corporation, July 5, 1900, 2 F. 1127, 37 S.L.R. 857; Vaughan v. Nicoll, February 6, 1906, 8 F. 464, 43 S.L.R. 351.