Scottish Court of Session Decisions

John Revie, carter, 15 Storie Street, Paisley, appellant claimed compensation under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), from William Cumming, contractor, Paisley, respondent, in respect of injuries sustained by him while at work in the respondent's employment. The Sheriff-Substitute ( Lyell) having refused compensation, a case for appeal was stated.

The facts were as follows — “(1) The appellant is a carter, and on 31st October 1910 was in the employment of the respondent, who is a contractor in Paisley. (2) On the morning of the said 31st October 1910 the appellant was one of a squad of four men in charge of a lorry belonging to the respondent, to which were harnessed five horses, three abreast as wheelers, and two abreast as leaders. (3) The said lorry weighed about three tons, and on the morning in question was laden with a casting some ten or eleven tons in weight, which was being conveyed from the engineering works of Messrs A. F. Craig & Co., Paisley, along the road leading from Paisley to Glasgow. (4) Of the four carters accompanying the lorry and its load, one was seated on the front of the lorry and driving the wheelers, two were leading the leaders, and the fourth (the appellant) was engaged as brakesman. (5) There are two brakes on this lorry, one for each of the back wheels, which can be applied only by a man on the ground behind the lorry, and are manipulated by two turning screws, one for each of the brakes. (6) There may be periods, long or short, during which the application of the brake is not required; but it is the duty of the brakesman in such circumstances to walk continuously at the rear of the lorry, ready to apply the brakes—by means of which alone the pace of the lorry can be controlled—not only on the slightest incline, but also in the event of any emergency, such as the breaking of a trace, the fall of a horse, or any similar accidental occurrence. The appellant might use his own discretion as to the use of the brakes; but he was also bound to obey the instructions of the driver of the wheelers, who had authority to order him to apply and release the brakes as he should require. (7) It is a rule of the respondent's business that in such circumstances as those of the present case no carter accompanying the lorry is to ride on the lorry with the exception of the carter driving the wheelers. The appellant was well aware of this rule, and was familiar with the duties of his employment as brakesman, and in particular was well aware that he could not fulfil these duties while riding on the lorry. (8) On the morning in question, while the said lorry was proceeding with its load towards Glasgow, and at a point of the road near Bellahouston Park, the appellant jumped on to the lorry, and sat down at the front, on the near side, by the driver, with whom he entered into conversation about matters which had nothing to do with the work on hand. The driver made no objection to his riding on the lorry. (9) When the lorry had proceeded along the road for a quarter of a mile beyond Bellahouston Park, the driver found it necessary to turn into Copeland Road on his near side. (10) As he made to turn the corner the driver shouted to the appellant to put on the brakes, whereupon the appellant made to jump off the lorry with the intention of obeying these instructions, when in some way he slipped on the lorry and fell to the ground, and his left foot was caught by the front near wheel of the lorry and so severely crushed that it had subsequently to be amputated. (11) While on the lorry the appellant was unable to perform the duties of his employment as brakesman, and thus voluntarily, and for his own purposes, put himself in a

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position in which he could not attend to his said duties, and from which he could not descend without risk of such an accident as actually occurred.”

The Sheriff-Substitute further stated — “In these circumstances I found in law that the accident did not arise out of and in the course of the appellant's employment, in the sense of the statute.”

The question of law was—“Whether on these facts the arbitrator was right in holding that the accident did not arise out of and in the course of the appellant's employment in the sense of the statute?”

Argued for appellant—The accident arose out of the appellant's employment, for he was in the course of his employment and obeying instructions at the time. It was immaterial that immediately prior thereto he had been sitting on the cart. Reference was made to the following cases— Johnson v. Marshall, Sons, & Company, Limited, [19061 A.C. 409; Clover, Clayton, & Company, Limited v. Hughes, [1910] AC 242; Hendry v. United Collieries, Limited, [1910] S.C. 709, 47 S.L.R. 635; M'Lauchlan v. Anderson, February 1, 1911, 48 S.L.R. 349; Douglas v. United Mineral Company, Limited, 1900, vide Elliott's Workmen's Compensation Act 1906, p. 32.

Argued for respondent—The appellant's accident did not arise out of the employment, for he voluntarily chose to encounter a risk not within the contemplation of parties or incidental to the employment. He had broken a rule, and it was in connection with that breach that the accident took place. The appellant therefore had no claim to compensation— Smith v. Lancashire and Yorkshire Railway Company, [1899] 1 QB 141; Morrison v. Clyde Navigation Trustees, 1909 S.C. 59, per Lord M'Laren 46 S.L.R. 40; Brice v. Edward Lloyd, Limited, [1909] 2 KB 804; Kane v. Merry & Cuninghame, Limited, February 7, 1911, 48 S.L.R. 430; M'Daid v. Steel, 48 S.L.R. 765.