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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mackinnon v. Miller [1909] ScotLR 299 (12 January 1909)
URL: http://www.bailii.org/scot/cases/ScotCS/1909/46SLR0299.html
Cite as: [1909] ScotLR 299, [1909] SLR 299
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SCOTTISH_SLR_Court_of_Session
Page: 299↓
Court of Session Inner House First Division.
[Sheriff Court at Edinburgh.
v.
Master and Servant — Workrnen's Compensation Act 1906 (6 Edw. VII, c. 58), secs. 7 and 13 — Seaman — Vessel Let to Charterers — “Employer” — Whether Charterer or Owner — Crew Provided and Paid by Owner, who Alone could Dismiss them.
Facts:
M., who was employed as an engineer on board a small steam tug, was last seen asleep in his bunk at 5 a.m. An hour afterwards he had disappeared, leaving his working clothes lying at the side of his bunk. The tug was to commence towing at 7 a.m. that morning, and steam had been ordered to be got up for that hour. The deck was a place where between 5 and 7 a.m. M. was entitled to be. Two days afterwards M's body, clad in his ordinary sleeping clothes, was found in the water near the place where the tug had been moored on the morning in question. In the opinion of the doctor who examined the body, M.'s death was due to drowning. There was no direct evidence as to how M. (who was unable to swim) had met with his death.
Held that the arbiter was entitled to draw (as he had drawn) the inference of fact that M. had accidentally fallen overboard and been drowned, and that the accident arose out of and in the course of his employment, and that accordingly it was not for the Court to interfere with his decision.
A, the registered owner of a steam tug, chartered her to B. Under the charter-party A was bound to provide and pay a crew of two men, including M., and A alone had power to dismiss them. The possession, control, and management of the vessel under the charter-party belonged to B.
Held that A, and not B, was M.'s employer within the meaning of the Workmen's Compensation Act 1906.
The Workmen's Compensation Act 1906 (6 Edw. VII, c. 58) enacts—sec. 7 (1)—“This Act shall apply to … seamen, … provided that such persons are workmen within the meaning of this Act, and are members of the crew of any ship registered in the United Kingdom.…“Section 13 enacts—“In this Act, unless the context otherwise requires, ‘employer’ includes any body of persons,… and where the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, the latter shall, for the purposes of this Act, be deemed to continue to be the employer of the workman whilst he is working for that other person. …”
Mrs Helen Moncrieff White cross or Miller, 38 Hawthornvale, Leith, widow of George Aitken Miller, engineer, Leith, as an individual, and also as tutrix and administratrix-in-law for G. A. Miller, her pupil child, claimed compensation from Archibald Mackinnon, steam-tug owner, Leith, in respect of the death of her husband, the said George Aitken Miller. The Sheriff-Substitute ( Guy) having awarded compensation, a case for appeal was stated.
The case stated—“This is an arbitration in which the respondent claimed compensation from the appellant under the Workmen's Compensation Act 1906 for herself and child, as being wholly dependent upon the earnings of her late husband George Aitken Miller, who met his death by drowning at Ballachulish on the morning of Saturday, 15th February 1908.
“The following facts were admitted or proved:—… (l) The appellant is the registered owner of the steam tug ‘Renown’ of Leith. (2) The ‘Renown’ is a small screw steamer of 15·22 tons register, 70 feet in length, and 16·5 feet beam. (3) The deck of the ‘Renown,’ which is of iron except the forward part, which is planked with wood, is all practically flush, but in the centre of the deck the boiler casing projects from it to a height of about a foot at the part nearest the bulwarks, and to a greater height in the centre of the vessel, while the wheel by which the vessel is steered is placed at the forward end of the boiler casing. (4) Bunks for the crew were provided in the part of the vessel forward of the engine and boiler space. (5) Access to the fore cabin was obtained by a small hatch on the deck a few feet forward from the wheel. (6) On the deck in front of the boiler casing and wheel were a water-tank and a chain chest of a about 2 feet in height. (7) Access to the engines and to the firehole
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and to an after cabin in which stores were kept could only be got from the sleeping place by coming on deck by the said hatch and passing along the deck between the boiler casing and the bulwark—a space about 3 ft. 6 ins. in width. (8) The bulwark was 20 inches in height. (9) The steering chain crossed this narrow part of the deck on either side abreast of the wheel, and would lie either upon the deck or 2 or 3 inches above it, according to how the wheel had been left; there was a closet in the forepeak entering off the fore cabin, but owing to the discomfort caused by the smell proceeding from it the crew did not use it, but went to the fire hole in order to to relieve themselves. (10) From the beginning of May 1907 to the end of September 1907 the ‘Renown’ had been employed in towing barges laden with sand on Loch Leven from Ballachulish to Kinlochleven, and the deceased George Aitken Miller, engineer, who resided at 38 Hawthornvale, Leith, was one of the crew appointed and paid by the appellant. (11) In the beginning of the year 1908 the appellant proposed to send the ‘Renown’ to Loch Leven for similar employment, and at the same time the wages of the said George Aitken Miller were increased from £2 per week to £2, 5s. per week. (12) In January 1908 the said steam tug was chartered by Sir John Jackson, Limited, for towage purposes in Loch Linnhe, Argyllshire, and its branches. (13) The appellant was bound under the charter-party to provide and pay a crew consisting of two men, while the charterers were to appoint and pay the master and any additional men that might be required; the charterers had no power to dismiss the said two members of the crew; the insurance of the vessel, and all provisions, deck, and engine-room stores, were to be paid by the appellant, by whom the vessel was to be maintained in an efficient state, while fuel, port charges, &c., were to be paid by the charterers.… (11) On 6th February 1908 the ‘Renown’ sailed from Leith to go via the Caledonian Canal to Ballachulish for delivery to the charterers. (15) She arrived at Ballachulish on or about 11th or 12th February, and was on the 12th February delivered to the charterers, from which date she was being employed under the said charter, and the possession, control, and management of the said vessel were in the charterers. (16) The air feed pump of the engines had been giving some trouble, and the appellant had intimated to the deceased that Mr James Macdougall, his superintending engineer, would meet the ‘Renown’ either at Ballachulish, or between there and Kinlochleven on the forenoon of Saturday, 15th February. The object of Mr Macdougall's going there was to repair the engine, and the defect was not in any way attributable to the deceased. (17) On the night of Friday, 14th February 1908, the said steam tug was moored to a barge which was moored to the jetty at Kinlochleven. (18) On the night and morning of the 14th and 15th February there were no lights burning on the ‘Renown’ and her deck was in darkness. The weather conditions were such that there was no unusual motion of the ship. (19) The ‘Renown’ was to be ready to commence towing at 7 o'clock on the morning of 15th February. (20) On the night of 14th February, the master, the said George Aitken Miller, and the fireman were on board and occupied their usual sleeping bunks in the cabin, and the deceased was then in his usual health and had apparently nothing on his mind and was looking forward to the respondent coming to Ballachulish with his son in July following. (21) About 5 o'clock on the following morning, Nicholas Wills, the master of the ‘Renown,’ and the fireman were both awake and saw the deceased in his bunk. (22) Afterwards they fell asleep again, but about 6 o'clock the deceased was not in his bunk. (23) The deceased was never again seen alive, and no person witnessed how he came by his death. (24) One of the bunker lids of the ‘Renown’ was missing at the same time as the deceased and has never been found, but it was not proved that this had any connection with the deceased's death. (25) The duties of the fireman usually took him on deck about an hour before the deceased commenced duty. (26) The master of the ‘Renown’ had ordered steam to be got up for 7 o'clock on the morning of the 15th of February. (27) The said fireman went on deck about 6 a.m. on the 15th of February. (28) The deceased by that time had disappeared, leaving his working clothes lying at the side of his bunk. (29) On the afternoon of Monday, 17th February, the deceased's body was found by a diver in the employment of Sir John Jackson, Limited, in the water close to where the ‘Renown’ had been lying on Saturday morning. (30) The deceased's body when brought up by the diver was dressed in his ordinary sleeping clothes as usually worn by him. (31) The body was examined on the same day by Dr M'Dougall, who found no marks on the body to indicate that the deceased had sustained any injury before getting into the water. In Dr M'Dougall's opinion the death of the deceased was caused by asphyxia, caused by drowning, and he certified it accordingly. (32) The deceased George Aitken Miller had been for a considerable number of years in the employment of the appellant, and he was a man of cheerful disposition and of sober, steady habits, careful in his work in every way, and enjoying the esteem of his employers. He was a good husband and father and was happy in his home life. He enjoyed good health but was slightly lame, the lameness not being of such a kind as to interfere with the performance of his duties as engineer. He was unable to swim. He did not commit suicide. (33) The sum of £295, 19s. 2d. is the sum equal to his earnings in the employment of the same employer during the three years next preceding the accident. (34) The deceased was survived by the pursuer, his widow, and by a pupil child, George Aitken Miller, who is eleven years of age. (35) The said widow and child were wholly dependent on the earnings of the deceased Page: 301↓
at the time of his death, and were the only persons dependent upon his earnings.” The Sheriff-Substitute further stated—“I accordingly, taking into consideration the whole facts proved and admitted, drew the inference in fact that about 6 a.m. on the morning of 15th February the said George Aitken Miller left his bunk, went on deck, and accidentally fell overboard and was drowned, and that said accident arose out of and in the course of his employment as a seaman on board said vessel.
“I further found that the appellant, being the registered and actual owner of said vessel and also the employer of the deceased, was his employer within the meaning of the Workmen's Compensation Act 1906, and I therefore found the appellant liable in compensation under that Act to the extent of £295, 19s. 2d., and also found him liable in expenses.”
The questions of law were—“(1) Whether on the facts admitted and proved I was entitled to hold that the deceased met his death by accident arising out of and in the course of his employment. (2) Whether the appellant, in view of the terms of the charter-party and the before-mentioned circumstances, was the person liable in compensation under the Workmen's Compensation Act 1906?”
Argued for appellant—There was no evidence as to whether Miller's death was due to accident or not. When last seen he was asleep in his berth. The burden of proving that his death was due to accident lay on the applicant, and unless she discharged it she could not succeed— Pomfret v. Lancashire and Yorkshire Railway, [1903] 2 K.B. 719; O'Brien v. The Star Line, Limited, July 18, 1908, 1908 S.C. 1258, 45 S.L.R. 935. The applicant must also prove that the accident arose out of and in the course of the employment, i.e., she must show that the deceased was occupied with his master's business, not his own, at the time— Pomfret ( supra); O'Brien ( supra); Falconer v. London and Glasgow Engineering, &c., Company, Limited, February 23, 1901, 3 F. 564, 38 S.L.R. 381. It was not enough to show that he was on board; the claimant must show that he had a duty to be on deck, for the natural place for him to have been at that hour of the morning was not on deck but in his bunk. There was no presumption that the accident, if unexplained, was within the employment— M'Donald v. Owners of Steamship Banana, [1908] 2 KB 926; Reed v. Great Western Railway Company, October 29, 1908, 25 T.L.R. 36. The question really came to be one of onus. To entitle a claimant to succeed in such circumstances as the present he had to establish the wide proposition that it was enough if the deceased met with the accident while on the premises, though how it happened might be totally unexplained. [The second question was not argued.]
Argued for respondent—This was a pure question of fact on which the Court would not interfere with the arbiter's decision unless he had taken an erroneous view of the law— Henderson v. Corporation of Glasgow, July 5, 1900, 2 F. 1127, 37 S.L.R. 857. The nature of the deceased's employment pointed to accident. In Reed ( supra) the deceased had left his engine; here the deceased was on board. In M'Donald ( supra) the deceased had left his ship. Esto that Miller was on deck, he was still in his employment, for he may have come there for a necessary purpose— Blovelt v. Sawyer, [1904] 1 KB 271; Keenan v. Flemington Coal Company, Limited, December 2, 1902, 5 F. 164, 40 S.L.R. 144. A workman was not out with his employment though not at work, unless he left the premises on his own private business— Smith v. Lancashire and Yorkshire Railway, [1899] 1 QB 141. The risk of falling overboard was one reasonably incidental to the employment, and if the circumstances in respect of time, place, and occasion showed that the risk encountered was reasonably incidental to the employment, the case in which it was encountered would fall within the Act.
At advising—
Now, the facts as found by the Sheriff-Substitute as arbiter under the Workmen's Compensation Act are that on the 14th February the master of the tug, the deceased man Miller, and the fireman were all on board the tug, which at that time was moored to a barge which was moored to the jetty at Kinlochleven. The master and the fireman saw the deceased in his bunk on the tug at about five o'clock a.m. They then went to sleep again and did not awake till about six. At six o'clock the fireman went on deck in accordance with his duty, which was to be on deck an hour before steam had to be got up, and steam had been ordered to be got up that morning at seven o'clock. By that time the deceased Miller had disappeared out of his bunk, leaving his working clothes lying at the side of his bunk, and nothing more could be seen of him. A few days after, the body of the deceased, clad in his nightdress, was found in the water, close to where the tug had been lying on the morning which I have just described. Upon these facts the learned arbiter has made these findings. He says that “taking into consideration the whole facts, proved and admitted, (he) drew the inference in fact that about six a.m. on the morning of 15th February the said George Aitken Miller left his bunk, went on deck, and accidentally fell overboard and was drowned,
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The question of law submitted to us is whether the Sheriff-Substitute was so entitled to hold, and the argument adduced has been that inasmuch as under the statute a workman is only entitled to compensation, or his representatives, if he is dead, are only entitled to compensation where there has been an accident arising out of and in the course of the employment, the pursuers here have failed to prove their case. Now it is quite evident that so stated the question is one of fact, and of fact only. Your Lordships are not judges of fact, and you will only of course interfere with the arbiter's decision if it be shown that he has come to an erroneous decision upon fact either by being influenced in coming to his decision on fact by some erroneous view in law—a result which is possible—or by having, as it has been sometimes expressed, misdirected himself, or, further, if he has proceeded entirely contrary to evidence, or upon no evidence at all. In fact the position which your Lordships here hold is very analogous to, if not entirely the same as, the position which you hold in reviewing the verdict of a jury. It is said by the appellant's counsel here, and said quite truly, that there is an affirmative proposition to be proved by the pursuer, and that that affirmative proposition is not satisfied by simply proving that the man was found dead, but that you must establish the proposition that his death was by accident, and that the accident arose out of and in the course of his employment. But I opine that the determination of that proposition must still depend upon evidence, and must depend upon whatever class of evidence is available. The truth is, that when the matter is closely considered, there is after all no real difference between the result that the tribunal arrives at whether it is based upon direct testimony or upon what is called circumstantial evidence. Certainty is incompatible with human fallibility. However clear the direct testimony of a witness may seem to be, it always may be wrong, because the witness may be stating what he knows to be not the truth, or, if speaking the truth, he may be mistaken in his own judgment with regard to the matters which he is relating. No human being can discover anything from which he draws conclusions except through the medium of some one of his senses, and any one of these senses is liable occasionally to mistake. Accordingly, it is almost, you may say, an accident whether direct testimony or the inference drawn from circumstantial evidence is the more cogent. Where you have direct testimony in such circumstances that you feel absolutely sure that the witnesses are speaking the truth, and where also it seems so improbable as to be almost impossible that they have been deceived in their senses in comprehending the matters from which they have drawn their conclusion, that is as satisfactory testimony as can be got. But there may be many cases where what is called circumstantial evidence may lead to results so certain that it is quite as good as, if not better than, direct testimony. There is a well-known passage in King Henry VI, where Shakespeare makes Warwick illustrate with regard to the death of a heifer the class of circumstantial evidence which brings certainty to all minds. 1 Accordingly, it seems to me that here, where there is undoubtedly no direct testimony, there is nothing antecedently wrong in saying you may come to a certain inference although that inference is only based upon circumstantial evidence. I agree that if the learned Sheriff-Substitute's view was based upon such want of evidence, or such disregard of evidence, that we could say that it was a view to which no reasonable man had fairly a right to come, we could, although the question was one of fact, I think, correct his judgment. But I cannot say that I think that the inference that he drew from those facts was so violent as to entitle us to interfere with it. It really, I think, depends upon two propositions. The first is that the death of Miller was due to his accidentally falling overboard and being drowned. Well, of course, that you may say, is a conclusion which cannot be reached with absolute certainty. I agree, because nothing is absolutely certainly known except that his body was found with the symptoms of drowning in the loch. But it was found at the place where the vessel had been lying, and I honestly think that not only is it an inference which may be drawn, but it is an inference which an ordinary man would draw, taking into consideration the whole circumstances, nor is there anything to suggest that his death happened in any other way, or that there was any motive for his going over the side. I think the ordinary man might perfectly well draw the inference that he had met his death by tumbling off the deck. That, of course, is not enough. What then, shall we say as to the fact of whether the accident arose out of and in the course of the employment? That, again, is a matter of inference, hut is it not an inference which may fairly be drawn? The deck was a place where Miller had every right to be; the deck was a place where even at that hour of the morning he might fairly be, not perhaps in the direct carrying out of his duties, but for indirect purposes with which these duties were not unconnected, because I suppose no one doubts—in fact the decisions have long ago settled—that you do not need to construe the words so strictly as to hold that a workman can never be in the course of his employment unless he is actually working. It has been held, as is shown in one of the decisions quoted to us, that a workman is for the purposes of the Act still at work although as matter of
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Accordingly it seems to me that here again the Sheriff-Substitute has drawn an inference. He need not have drawn it, but he has drawn it, and I cannot say that I think there is anything violent in the inference that he has so drawn. Of course when you find that a workman who meets with an injury, or comes by his death, is in a place which is prima facie unconnected with his employment, then you have a fact which tends the other way and prevents such an inference being drawn. Such was the case figured by one of the learned Judges in the case of a domestic servant meeting his death in the street. A domestic servant's employment is not in the street, and yet it would be perfectly possible by evidence to show that he was executing his employment though he was in the street. It would just bring out the difference of the situation, to use the learned Judge's illustration, according as to whether a butler, as in the case that he figured, was carrying a message for his master, and in the course of carrying that message was run over by an omnibus, or whether he was going to spend an evening at the Franco—British Exhibition for his own enjoyment. In the one case he would be in the course of his employment, and in the other he would not.
A very good illustration of the contrast which occurs upon facts may be taken by comparing the two cases, neither of which is binding upon us, but with the judgments in which I agree, namely, the case of Pomfret v. The Lancashire and Yorkshire Railway Co., [1903] 2 KB 718, and the case of M'Donald v. Owners of the Steamship “Banana,” [1908] 2 KB 926. In Pom fret, which was a case in which a fireman fell out of a third-class railway carriage on a journey which he had to make in the course of his work, although in the course of that journey he did not actually stoke, the Court drew the inference that he had met with the accident in the course of his employment. In the case of M'Donald, a donkeyman, who had gone on shore and was returning on board his ship, fell off the gangway and was killed, and no more being known about it, the judges said that there were no facts there from which they were driven to draw the inference that it was in the course of his employment. But I think Lord Justice Kennedy foresaw just such a case as we have here, because, having given his opinion to the effect I have just stated, and having pointed out that the onus was upon those who sought to prove that the accident was in the course of the employment, he says this—“At the same time I wish to be understood as deciding upon the particular facts of this case in this respect, that we have to consider the case of an accident happening to a man at a place where he would not necessarily or naturally be in order to fulfil the duties of his employment. I express no opinion as to the propriety or impropriety in point of law of an inference bringing an accident within the terms of the Act of Parliament where that accident has happened upon the premises where the workman's service is to be rendered to his employer, as, for example, if this workman had been found fatally injured by a fall in the stokehold or any other part of the ship where in the course of his duty he might naturally and properly be, although there were no circumstances to show why at the particular moment he was there, or what the particular duty was which called him there. In the present case the accident happened whilst M'Donald was outside the ship, and without proof that there was anything which at the time and place of the accident made it part of the duty of his service to incur the risk which proved fatal.”
It seems to me that each case must be dealt with and decided upon its own circumstances, and that inferences may be drawn from circumstances just as much as results may be arrived at from direct testimony; that here the learned Sheriff-Substi—tute cannot be said to have drawn an inference which no reasonable man could draw, and that being so, that it is not for your Lordships to interfere with his decision.
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There are many cases where an accident may arise while a man is on the master's premises but not engaged in active work, and whether he is there going about the premises in the ordinary course of business, or whether he is going about the premises in pursuance of the necessities of life, such as eating, drinking, respiration, and other things that need not be mentioned, and is not doing anything that is either wrong or against his contract or outside his employment, in such a case I do not doubt that the accident must be treated as one arising out of his employment. It has been so held in cases both in Scotland and in England. But, on the other hand, if a man is doing something unlawful, or if his accident is due to something that is being transacted between him and other people with which the master has nothing to do, such facts might raise an exception. It is not at all necessary for the purposes of this case to endeavour to find a criterion as to what class of cases would fall within or without the rule. It is enough to say that there are some cases which fall outside the rule. One of them was the case recently decided by this Court, the case of O'Brien v. The Star Line, July 18, 1908, 45 S.L.R. 935, a case which resembles the present in that it was an accident occurring to a man on board ship during the night. But in that case the injured man was found lying at the bottom of a hold into which he could only have got by going into a part of the ship where he had no business, and to reach which he must have broken a door. The circumstances of the case seem somewhat strange, but they are explained by the fact that the man was tipsy. We were of opinion that that was not an accident arising out of his contract, because, although he was on board the ship in the course of his employment, he was not there for the purpose of breaking open a door and falling into the hold. I think we had not the case of Reed, October 29, 1908, 25 T.L.R. 36, before us at the time. That case was decided about the same date by the House of Lords, and entirely supports the judgment of this Court. Indeed, had the case of Reed been before us it would have made it impossible for us to come to any other conclusion than that at which we arrived. But then in the present case, although the man was not at rest in his bunk but had gone on deck, I am unable to see in the facts as stated any theory that will take the case out the ordinary rule. I cannot hold it proved that he was doing anything outside his work. He may have been on deck for a legitimate purpose, and there is nothing to show that he either misconducted himself or exposed himself to unnecessary risks. Therefore I think that the Sheriff was entirely justified in coming to the conclusion to which he came, that this was a case falling within the category of an accident arising out of and in the course of the employment, and I agree with your Lordship that we ought to answer that question in the affirmative.
But then there arose a further question whether this accident happened to the man in the course of his employment and arose
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The Court answered both questions in the affirmative and dismissed the appeal.
Counsel for Appellant— Blackburn, K.C.— C. H. Brown. Agent— F. J. Martin, W.S.
Counsel for Respondent— C. D. Murray— J. B. Young. Agents— Bruce & Stoddart, S.S.C.