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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wemyss Coal Co., Ltd v. Symon [1912] ScotLR 921 (12 July 1912)
URL: http://www.bailii.org/scot/cases/ScotCS/1912/49SLR0921.html
Cite as: [1912] ScotLR 921, [1912] SLR 921
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SCOTTISH_SLR_Court_of_Session
Page: 921↓
Court of Session Inner House Second Division.
[Sheriff Court at Cupar.
v.
Facts:
A message-clerk who was sent a message by his employers, and had been provided with money to pay his tramway fare, was seriously and permanently injured while attempting to board, a short distance from its stopping-place, a car which was moving at the rate of five miles an hour. He acted without invitation and contrary to a notice on the car, of which he was aware. The arbiter having awarded him compensation, held, in a stated case, that the accident did not arise out of and in the course of his employment.
John Kirk Symon, Buckhaven, with the advice and consent of his father Frank Symon, as his curator and administrator-in-law, respondent, having claimed compensation under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) from the Wemyss Coal Company, Limited, appellants, the matter was referred to the arbitration of the Sheriff-Substitute at Cupar ( Armour Hannay), who found the respondent entitled to compensation, and at the request of the appellant stated a Case for appeal.
The Case stated—“(1) The claimant on 29th October 1910, being the date of the accident after mentioned, was fourteen years of age, and had been employed as message clerk in the appellants' service at their Muiredge office for about five months prior thereto.
“(2) On said date he was sent a message from the appellants' Muiredge office to the appellants head office at East Wemyss, which is situated westwards from Muiredge, and was given money to pay his tramcar fares both ways.
(3) The tramway line runs alongside the public road, and is properly fenced off
Page: 922↓
from it, but access is obtained to the tramway line by gates or openings in the fence to the west of the railway crossing. A line of railway belonging to the North British Railway Company, but worked by the appellants, intersects the public road and tramway line at right angles. There is a tram-car stopping-place about 80 feet or thereby from the appellants' Muiredge office immediately to the west of the point where the railway crosses the tramway line. At the stopping-place there is a gate in the fence giving access from the public road to the tramway premises for tramway passengers, and at that point there is a notice on a tramway standard—‘Cars stop here.’ Cars do not always stop for passengers; sometimes they only slow down. The claimant came to the car stopping-place, but, the car being late, he walked eastwards a few yards to look for the car coming, though there was no necessity for his doing so. Cars-do not stop at the place where the claimant attempted to get on, but on the car coming to the railway levelcrossing where it had slowed down, as required by the Board of Trade Regulations, he attempted to board the car, as he had frequently done before, about two yards to the east of the railway line, and just opposite appellants' office. (4) In boarding the car he slipped and fell, breaking his left thigh and injuring his right leg so severely that it had to be amputated below the knee. His injuries were serious and permanent.
(5) The car had a trailer or baggage car behind it, which introduced an element of danger, and it caught the claimant and dragged him several yards westwards over the railway crossing, but as its pace was only about five miles an hour neither the tramway conductor nor the claimant considered there was any danger in what the claimant did. At the pace the car was going the conductor would not have stopped the claimant jumping on even if he had seen him, which he did not.
(6) The claimant admits he knew there was a notice in the car against jumping off or on while the car was in motion, but no attempt has ever been made to enforce this notice by a prosecution or otherwise, and the conductors only interfere if they think there is danger from the car going fast. In attempting to get on the car the claimant was acting not for his own purposes but on the business of his employer. Although the appellants were aware that their employees generally were accustomed to get on and off cars while in motion, they never prohibited or questioned the practice, and they never warned the claimant against it. At the rate the car was travelling at the time of the accident the operation was reasonably free from danger, and was not reckless.
(7) If the claimant had been waiting alone at the stopping-place, as would have been the case on this particular occasion, the car would probably only have slowed down to let him jump on.
(8) At the spot where the claimant attempted to board the car the ground was quite level, and it has for long been a common practice for miners on leaving their work, and others in the appellants' employment (including the claimant), to board the cars while in motion, and this practice has never been objected to by the appellants or the Tramway Company or their servants. One of the appellants' servants was stationed at said level-crossing at the time of the accident, and had been stationed there for many months prior to the accident. Neither he nor any other person ever suggested that the claimant and appellants' other workmen were not entitled to board the cars at said point.
(9) The solum of the ground where the accident happened belongs to the North British Railway Company, but the Tramway Company have a way-leave right over it.
(10) There is a railway trespass notice close to the spot where the claimant was injured, and similar notices erected by the appellants and the Tramway Company. The claimant, however, had not read these notices, and was unaware that he was trespassing. No prosecution or other means had been taken to warn trespassers.
(11) It was part of the claimant's duty to travel over said level-crossing and up the railway line every day to collect waybills belonging to the appellants. The line is a private line belonging to the North British Railway Company, and worked by the appellants.
(12) The claimant's average weekly earnings were 9s. per week.
On the above facts I found that the claimant sustained personal injury by accident arising out of and in the course of his employment with the defenders and appellants, and that he is entitled to compensation at the rate of 9s. per week from 29th October 1910, with expenses of process on the higher scale.”
The question of law was—“Was I right in holding that claimant's accident arose out of and in the course of his employment with the defenders and appellants?”
Argued for the appellants—The accident did not arise “out of” the respondent's employment. To do so it must arise from a risk reasonably incident to the employment. In the present case the respondent had taken an unnecessary risk, and the accident had taken place on the public street and not on the employer's premises where the employee had a special duty— Rodger v. School Board of Paisley, 1912 S.C. 584, 49 S.L.R. 413; Murray v. Denholm & Company, 1911 S.C. 1087, per Lord Salvesen, p. 1102 middle, 48 S.L.R. 896; Millar v. Refuge Assurance Company, Limited, 1912 S.C. 37, per Lord Kinnear, p. 42, 49 S.L.R. 67; Revie v. Cumming, 1911 S.C. 1032, 48 S.L.R. 831; Richard Evans & Company, Limited v. Astley, [1911] AC 674, per Lord Chancellor, p. 678, 49 S.L.R, 675; Traynor v. Addie & Sons, December 6, 1910, 48 S.L.R. 820.
Argued for the respondent—The question was one of pure fact, and the arbitrator's finding should not be disturbed. On the facts found there was no risk in what the
Page: 923↓
respondent had done, and he could not have been dismissed for doing it. Even disobedience would not take the workman outside the Act, which was based not on fault or duty but on accident. The fact that the accident did not happen on the employers' premises was immaterial. In this respect the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) differed from the Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), which was limited in locality— Whitehead v. Reader, [1901] 2 KB 48; Conway v. Pumpherston Oil Company, Limited, 1911 S.C. 660, 48 S.L.R. 632; Moore v. Manchester Liners, Limited, [1910] AC 498; Praties v. Broxburn Oil Company, Limited, 1907 S.C. 581, 44 S.L.R. 408; Wallace v. Glenboig Union Fireclay Company, Limited, 1907 S.C. 967, 44 S.L.R. 726; Johnson v. Marshall, Sons, & Company, Limited, [1906] AC 409; Smith v. Lancashire and Yorkshire Railway Company, [1899] 1 QB 141; Bist v. London and South-Western Railway Company, 1907, 23 T.L.R. 471; George v. Glasgow Coal Company, Limited, 1908 S.C. 846, 45 S.L.R. 686, affd. 1909 S.C. (H.L.) 1, 46 S.L.R. 28; Mackinnon v. Millar, 1909 S.C. 373, 46 S.L.R. 299. [ Lord Salvesen referred to Martin v. Fullarton & Company, 1908 S.C. 1030, 45 S.L.R. 812.] At advising—
The question in these circumstances is whether the master is bound to pay compensation in respect that the accident occurred during the course of employment and arose out of his employment. The Sheriff-Substitute has answered in the affirmative. I am unable to agree with him. He seems to hold that a boy such as the respondent does not run much risk in mounting a car going at five miles an hour, and to deduce from that idea the conclusion that if an accident happens when the risk is taken it happens as an incident of the employment. I cannot assent to that. Where vehicles running on rails are to take up or put down passengers it is the rule that they must stop to do so, and in this case the rule was specially brought to notice. The rule is established because there is danger when mounting or alighting is attempted when the vehicle is in motion. So much is the danger realised that on railways it is a punishable offence to enter or leave a train when in motion. It is of course often done, and with the result that from time to time accidents do occur. But nothing can be more clear than that if such an act is dangerous and for that reason forbidden, the person who breaks the rule which is known to him does so at his own risk. It may be different if a servant of the railway or tramway company invites a person to step on to a car or carriage when in motion. There the company by its servants is setting aside its own rule and must answer for the consequences. I cannot therefore see how it can be held that the doing of an act forbidden and known to be forbidden can be held to make a master liable for an accident to his message boy on the footing that the accident arose out of his employment. He is doing knowingly what he has no need to do and no right to do in order to fulfil his duty. It is not in any way like an accident such as making a false step upon a stair or falling where steps are not in good order. Such a case as the insurance canvasser does not seem to resemble the present case in the least. Having to go on to a stair with worn steps may in the words of the Court in Murray's case ( 1911 S.C. 1087, 48 S.L.R. 896) be reasonably incident to the employment. But in that case nothing is done which is prohibited; and what was done, namely, going on the stair, was a necessary action in the fulfilment of the duties of the employment. What happens is a pure accident in the course of doing what it was right to do. Here what happens is no doubt an accident, but it is an accident the action leading to which was not reasonably incident to the employment. The boy had no cause to do what he did—he was doing what his employment in no way required him to do. The Sheriff-Substitute seems to think that it is a ground for holding as he has done that it was proved that other people mounted cars at this place when they were in motion, and that this has not been objected to by the Tramway Company's servants nor by the appellants. As regards the Tramway Company, the appellants cannot be affected by their failure to see that their own rules were observed, and I cannot hold that the appellants were called upon to watch their servants outside their own premises and to attend to the working of the tramways. The Sheriff-Substitute holds that in “attempting to get on the car the pursuer was not acting for his own purposes but on the business of his employer.” I cannot agree with that, which the Sheriff-Substitute puts in his finding of facts, but which is really a finding in law. When
Page: 924↓
Further, when the Sheriff-Substitute puts in his findings in fact a statement that if the boy had waited at the proper stopping-place the car might not have stopped, he is plainly not stating a fact proved, but stating what he imagines was likely. It was the duty of the conductor to stop if a passenger was waiting, and it is quite irrelevant to state guesses as to whether he would have done his duty.
I do not think it necessary to go over the cases quoted to us for the respondent. They were nearly all cases where the work was being done on the master's premises, while the acts in course of being done were of the nature of fulfilment of work for the master. The sufferers were not going outside their duty, though they might be careless in doing what they did. But there is one case which I think has a strong bearing upon the present, viz., the case of Revie (1911 S.C. 1032, 48 S.L.R. 831). In that case a man whose duty it was to stay by and attend to a brake on the back of a lorry, left the place where he should have been and went forward to sit with the driver in front. When a time came when his driver told him to put on his brake he proceeded to get down and go back in order to apply the brake. In getting off the front of the lorry he fell and was run over. It was held that he had put himself in circumstances not incidental to the duty he was to perform, and so what happened did not arise out of his employment. The Lord President in that case expressed himself to the effect that the test is whether the risk of the accident is one which may be reasonably looked upon as incident to the employment, using the phrase which he found in the case of Brice v. Lloyd ( [1909] 2 KB 804). I can see no distinction between going to a wrong place and there trying to jump on to a car not intended to stop at that place, and going to a wrong place on a lorry and jumping off. In the one case as in the other the person injured was not doing what was incidental to his duty to his master—he was not doing a thing for his master. His position was for the time being away from what duty prescribed. The brakesman chose to go to the front of the lorry; the boy here chose to go forward away from the stopping-place. The one jumping off and the other jumping on were each wilfully taking an outside risk not incident to the reasonable requirements of duty.
I therefore am of opinion that the question put in this stated case should be answered in the negative.
The Sheriff-Substitute has evidently given great weight to two considerations which I think are entirely irrelevant in considering the only question which we have to decide. The first is that there is not much danger in an active lad of fourteen jumping on to a car which is proceeding at five miles an hour. That there is some danger is obvious from the fact that the accident happened; and as wilful and serious misconduct is not in the case, it seems to me to be a matter of no moment whether the car was going at five miles an hour or at twice or three times that speed. I daresay that an active lad can, without serious risk, board a car which is going no faster than he can run, although of course the risk increases with the increase of speed. If it be held to be incidental to the employment of a messenger who is directed to use a public conveyance that he should run the risk of joining it in motion, it appears to be quite immaterial in a case of this kind what is the speed at which the conveyance is moving. The second circumstance is that the employers knew that their employees were accustomed to get on and off the cars while in motion and never questioned the practice or warned the men against it. I cannot see that the employer's duty in a matter of this kind goes beyond his own premises. If he permits a dangerous practice there, even although it is prohibited by his own rules, he may bar himself from pleading that the knowledge of the rule put his workmen in the wrong whenever they violated it. But I apprehend that it is no part of his duty to warn his workmen not to infringe the rules of a tramway company or railway company over which he has no control, more especially when the workman is quite aware of the existence of the rule. I think it is common knowledge with which a boy of fourteen may quite well be credited that if he joins a moving car he does so at his own risk.
Page: 925↓
There is a third circumstance on which the Sheriff-Substitute also lays some stress, namely, that even if the boy had been at the stopping-place the car might not have stopped for a single active passenger. That is of course a mere speculation; and at any rate it is certain that it was the duty of the conductor, if the boy had signalled to him, to stop the car. If he had failed to do so, and had invited the boy to join the car when in motion, the Tramway Company would have incurred liability for the accident which resulted, just as a passenger has been found entitled to get damages from a railway company for being run over while crossing the line instead of using a foot-bridge when he had been invited by a railway servant to cross the line.
We were favoured with an elaborate citation of authorities more or less in point, of which the cases of Whitehead, [1901] 2 KB 48; Martin, 1908 S. C. 1030, 45 S. L. R. 812; Conway, 1911 S.C. 660, 48 S.L.R. 632; Revie, 1911 S.C. 1032, 48 S.L.R. 831; Evans, [1911] AC 674, 49 S.L.R. 675; and Johnson, [1906] AC 409, were the most important. The circumstances in most of these cases were entirely different from those that we have here. In all of them except Revie's the accident occurred on the master's premises while the injured workman was doing his proper work, although, it may be, in a negligent manner; but that is just the kind of case for which the Workmen's Compensation Act was passed to provide. The only exception is the case of Revie, where the accident occurred on a road; and the circumstances there more nearly resembled those which are found in the present case, and indeed appear to me to be a fortiori, for the workman when he met with his accident was actually obeying an order with which he was bound to comply. In other respects it is very similar, because the risk of jumping off a moving conveyance is similar to that of jumping on to it. I humbly think that that case was well decided, and at all events it is binding upon us. If so, the question of law falls to be answered in the negative, and I propose that we should so answer it.
The Court answered the question of law in the negative.
Counsel for the Appellants— Horne, K.C.— Hon. W. Watson. Agents— W. & J. Burness, W.S.
Counsel for the Respondent— D.-F. Dickson, K.C.— Wilton. Agent— D. R. Tullo, S.S.C.