Scottish Court of Session Decisions

Mrs Agnes Easton or Euman, widow of Robert Euman, mill foreman, Walker-burn, claimed compensation under the Workmen's Compensation Act 1906 from James Dalziel & Company, manufacturers, Walkerburn, in respect of the death of her husband, which she alleged to be due to an accident sustained by him while at work in the defenders' employment.

On 12th January 1912 the Sheriff-Substitute ( Orphoot), acting as arbitrator, found in fact—“(1) That on 18th July 1911 Robert Euman, mill foreman, Walkerburn, was in the employment of the defenders as a millworker in their mills at Walkerburn when he met with an accident arising out of and in the course of his said employment, through a ladder on which he was standing accidentally slipping, whereby he was thrown to the ground and injured; (2) that the said Robert Euman died at Walkerburn on 15th August 1911; (3) that his death resulted from the injuries he received by said accident,” and awarded compensation accordingly.

Thereafter the defenders lodged a minute craving the Sheriff-Substitute to state a case for the opinion of the Court on the following question of law, viz.—“Whether the death of the said Robert Euman was the result of an accident arising out of and in the course of his employment within the meaning of the Workmen's Compensation Act 1906.”

They also lodged with the Sheriff-Clerk a draft stated case, which, after narrating the facts which they alleged had been proved, submitted for the opinion of the Court the following questions—“(1) Whether the arbiter was entitled to draw from the facts stated the inference that the appendicitis which caused the death of the deceased was the result of his being confined to bed with a staved ankle? (2) Whether the death of the deceased was caused by personal injury by accident arising out of and in the course of his employment?”

On 13th February 1912 the Sheriff-Substitute refused the application, stating that he did so in respect “(1) That the questions of law stated in the draft stated case submitted to me are not raised by the admissions made or the facts proved before me; (2) that the only question raised in this arbitration is—Did the death of Robert Euman, husband of the pursuer, on 15th August 1911, result from personal injuries sustained by him in the accident which happened to him on 18th July 1911? and (3) that that question is a question of fact.”

The defenders thereafter presented a note to the First Division, in which, after narrating the nature of the evidence led, they craved an order on the respondent to show cause why a case should not be stated by the Sheriff-Substitute for the following

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reasons—“Because the question whether the death of the deceased did or did not result from injury by accident arising out of and in the course of his employment under the conditions found proved as above is a question of law and not of fact. Because there was no evidence that the death of the deceased resulted from the injuries he received by the accident on 18th July aforesaid.”

The questions of law proposed were as follows—“(1) Whether the arbiter was entitled to draw from the facts stated the inference that the peritonitis which caused the death of the deceased was the result of his being confined to bed with a staved ankle? (2) Whether the death of the deceased was caused by personal injury by accident arising out of and in the course of his employment?”

Mrs Euman lodged answers, in which she submitted that the Sheriff-Substitute had rightly refused to state a case in respect that the questions proposed were questions of fact.

The note and answers were heard in the Summar Roll on 14th May 1912.

Argued for the respondent—Where, as here, the question originally put to the Sheriff was solely one of fact, the Court would not now ordain him to state a case— Rae v. Fraser, June 28, 1899, 1 F. 1017, 36 S. L.R. 782; Hobbs and Samuels v. Bradley, March 14, 1900, 2 F. 744, 37 S.L.R. 532. The proper form of question was as follows—“Was there evidence given before the Sheriff-Substitute upon which he might reasonably have found that the accident in question arose out of and in the course of the deceased's employment,” per Lord Atkinson in Jackson v. General Steam Fishing Company, Limited, 1909 S.C. (H.L.) 37, at p. 41, 46 S.L.R. 901. That question had not been put to the arbitrator, and the note therefore should be refused.

Argued for appellants— Esto that the question originally put to the arbitrator was not in proper form it was his duty to have adjusted it, for the facts clearly raised a question of law. There were many cases in which the Court had entertained appeals on questions so framed, e.g., Coe v. Fife Coal Company, Limited, 1909 S.O. 393, 46 S.L.R. 328; Blakey v. Robson, Eckford & Company, Limited, 1912 S.C. 334, 49 S.L.R. 254. The Lord President referred to Miller v. Refuge Assurance Company, Limited, 1912 S.C. 37, 49 S.L.R. 67. It was the duty of the claimant to establish either by direct evidence or by legitimate inference from proved facts that the accident arose out of as well as in the course of the employment— per Cozens Hardy, M.R., in Hawkins v. Powells Tillery Steam Coal Company, Limited, [1911] 1 KB 988, at p. 991. This she had failed to do, and the order craved should therefore be granted.