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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'William v. Great North of Scotland Railway Co. [1914] ScotLR 414 (13 March 1914)
URL: http://www.bailii.org/scot/cases/ScotCS/1914/51SLR0414.html
Cite as: [1914] ScotLR 414, [1914] SLR 414
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SCOTTISH_SLR_Court_of_Session
Page: 414↓
Court of Session Inner House Extra Division.
[Sheriff Court at Banff.
v.
Facts:
A railway porter had as part of his duties to be in attendance upon the platform to transfer luggage to and from passenger trains running on main and local lines. A train stopped at its usual place, twenty yards from where he was standing. As the van passed he tried to jump on, so as to be ready to remove luggage as quickly as possible; he fell and was injured. Jumping on trains by porters was strictly prohibited. He had been given the company's book of rules, but had not read it; he had also been checked and warned against the practice. Held that the accident arose out of and in the course of the employment.
In an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) between William M'William, sometime railway porter, Portsoy, appellant, and the Great North of Scotland Railway Company, respondents, the Sheriff-Substitute ( Dudley Stuart) refused compensation and stated a Case for appeal.
The Case stated—“The appellant, who is twenty years of age, entered the respondents' service as a railway porter at Tilly—naught Station on 3rd April 1913. On 26th April he met with the accident for which he claims compensation. It was part of his duties to be in attendance upon the platform on the arrival of passenger trains and to transfer luggage and parcels to and from the trains running on the main line and the local line to Banff. On the day in question the appellant was on the platform, opposite the door of the booking office, awaiting the arrival of the 10·55 a.m. passenger train from Elgin, which arrived at Tillynaught Station one minute after scheduled time, namely, 12·15 p.m., in order to be ready to remove luggage and parcels from the van of that train. The point at which the van of said train usually stops and at which it stopped on this occasion was about twenty yards farther up the platform than the point where the appellant was standing. As the van of the train passed the appellant, which it did at a considerable rate of speed, he ran after it, and overtaking it as its speed decreased, jumped or tried to jump upon the footboard of the luggage van, which was the last vehicle but one of the train, in order to be ready to remove the luggage as quickly as possible when the train stopped. He succeeded in taking hold of the handle at the end of the van, but did not succeed in getting a foothold with both feet upon the footboard. He appears to
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have partly swung round the corner of the luggage van and slipped off the footboard on to the line, and his right foot and ankle were severely injured by the wheels of the meat van, which was the last vehicle of the train. He was removed to the hospital at Banff, and it was found necessary to amputate his leg between the knee and ankle. As the result of the accident the appellant sustained serious and permanent disablement, and has been wholly incapacitated from work down to the date of the present action. The stump of his leg is now healed. “When the appellant entered upon his duties on 3rd April the stationmaster, according to the usual practice, gave him a book of the rules and regulations, defining, inter alia, the scope of the duties of servants dealing with trains at stations, to be observed by the respondents' servants, and the appellant signed the document to the following effect:—‘I, William M'William, having this day been furnished with a copy of the Book of Rules and Regulations of the Great North of Scotland Railway Company, and Appendix to Working Time Table, which came into operation on 1st August 1908, hereby undertake to observe and obey the same and all other rules, regulations, and instructions that may from time to time be issued for the working and management of the Company's railways, so long as I remain in the Company's service. (Signed) Wm. M'William, porter, Tillynaught Station, 3rd April 1913. Witness (Sgd.) Jas. Dawson.’ Rule 23 ( c) of the General Rules and Regulations is in these terms—‘No servant must jump on to the steps or footboards, or run alongside of trains entering stations.’
The appellant deponed that he had not read the rules, and I accepted his statement. The stationmaster did not, in handing him the book, direct his attention to rule 23 ( c), or to any particular rule. He merely told him to read the rules. During the time the appellant was in the respondents' service the stationmaster observed him disobeying rule 23 ( c) by jumping upon the steps of an incoming train, on more than one occasion, and on each occasion the stationmaster checked him for doing so. He was also on one occasion warned by one of his fellow-servants who saw him doing so that it was a dangerous practice.
“It was proved that it is generally understood in the railway service that the prohibition as expressly stated in rule 23 ( c) refers only to the case of trains which are entering a station. In the case of outgoing trains, and in shunting operations, it is a common practice for guards and porters to board trains in motion, and the rule referred to does not forbid this. While this distinction is generally understood by railway servants, it was not proved that the appellant knew of it. It was not proved that the respondents or their officials permit the practice of jumping upon trains entering stations without objection. On the contrary, I found it proved that this practice is as far as possible checked by those responsible for enforcing the rules; and in the appellant's case, as already mentioned, he was warned upon more than one occasion.”
The Sheriff-Substitute further stated—“Upon these facts I found that the accident which caused the appellant's injuries, while it arose in the course of, did not arise out of his employment, in respect that the appellant's act was (1) unnecessary, (2) obviously dangerous, and (3) not expected or required of appellant but expressly forbidden. I therefore refused compensation.”
The question of law for the opinion of the Court is—“Whether there was evidence upon which it could competently be found that the appellant's injuries were not 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?”
Argued for the appellant—What the workman did was clearly part of his ordinary work. The mere breach of a rule did not debar a workman from compensation— Conway v. Pumpherston Oil Company, Limited, 1911 S.C. 660, 48 S.L.R. 632. The workman was doing his work, though in the wrong way, but that did not disentitle him— Burns v. Summerlee Iron Company, 1913 S.C. 227, 50 S.L.R. 164; M'Diarmid v. Ogilvy Brothers, 1913 S.C. 1103, 50 S.L.R. 883; Mawdsley v. West Leigh Colliery Company, Limited, 1911, 5 B.C.C. 80. In order to disentitle him the workman must do something of a different kind from what he was employed to do— Barnes v. Nunnery Colliery Company, Limited, [1912] AC 44; Richard Evans & Company, Limited v. Astley, [1911] AC 674. Reed v. Great Western Railway Company, [1909] AC 31; Smith v. Lancashire and Yorkshire Railway, [1899] 1 QB 141, were cases in which the workman did something for his own pleasure and was therefore held to be disentitled to compensation. On the other hand, serious and wilful misconduct did not disentitle him— Fraser v. John Riddell & Company, 1913, 2 S.L.T. 377, 51 S.L.R. 110. Where it had been held that an accident did not arise out of the employment, the cases were in one of two categories—either (1) the workman was not doing his own work— Burns ( cit.); M'Daid v. Steel, 1911 S.C. 859, 48 S.L.R. 765; Kerr v. William Baird & Company, Limited, 1913 S.C. 662, 50 S.L.R. 455; or (2) he was doing something for his own pleasure— M'Laren v. Caledonian Railway Company, 1911 S.C. 1075, 48 S.L.R. 885; Smith ( cit.); Barnes ( cit.); Revie v. Cumming, 1911 S.C. 1032, 48 S.L.R. 831; Kane v. Merry & Cuninghame, 1911 S.C. 533, 49 S.L.R. 921; Reed ( cit.). Symon v. Wemyss Coal Company, Limited, 1912 S.C. 1239, 49 S.L.R. 921, was at variance with all the other cases. The following cases were also referred to— Harding v. Brynddu Colliery Company, Limited, [1911] 2 KB 747; Watkins v. Guest, 1912, 5 B.C.C. 307. The question of law should be answered in the negative.
Argued for respondents—The breach of a rule did not debar a workman from compensation— Conway ( cit.); Mawdsley ( cit.); Durham v. Brown Brothers & Company, Limited, December 13, 1898, 1 F. 279, 36 S.L.R. 190; but it was a fact relevant to be considered in the question whether the accident arose
Page: 416↓
out of the employment. It raised a strong presumption that he was acting outside the scope of his employment— Traynor v. R. Addie & Sons, 1911, 4 B.C.C. 357, 48 S. L.R. 820; Barnes ( cit.). What he did was something different from what he was employed to do. It was no part of his duty to jump on trains. It was an added peril. That in combination with the prohibition was enough to disentitle him— Plumb v. The Cobden Flour Mills Company, Limited, [1914] AC 62; Revie ( cit.); Symon ( cit.). When a workman suffered an accident in the employment of another than his master, the master was not liable— Burns ( cit.); Smith ( cit.); M'Daid ( cit.)—but there was an exception where one did work for a fellow employee in an emergency— Devine v. Caledonian Railway Company, July 11, 1899, 1 F. 1105, 36 S.L.R. 877; London and Edinburgh Shipping Company v. Brown, February 16, 1905, 7 F. 488, 42 S.L.R. 357. But if the person for whom the work was done was not an employee at all the master was not liable— Barnes ( cit.); Plumb ( cit.); Revie ( cit.). Watkins ( cit.) was also referred to. The workman had done something different from what he was employed to do, and that in face of a prohibition. The question was one entirely of fact upon which the Sheriff-Substitute was final. The question of law should therefore be answered in the affirmative. At advising—
Now if one regards the facts of the case apart (for the moment) from the special rule of the company and the appellant's disobedience of it, they do not, in my opinion, afford a sufficient warrant for the Sheriff-Substitute's conclusion that the accident did not arise out of the employment. It is true that, as the respondents' counsel insisted, the duty of a porter is (primarily and etymologically) to carry things; but it is equally plain that the appellant's duties extended to attending the arrival of trains and removing luggage from vans, and it appears that it is the common and recognised practice of porters at this (as at many) stations, in shunting operations and the like, to board trains in motion. The indiscretion of this lad in jumping on the footboard—prompted apparently by overzeal “in order to be ready to remove the luggage as quickly as possible when the train stopped”—could not, I think, be held to amount to a departure from his proper sphere of service. He was performing his duty in an indiscreet and wrong manner, but still he was performing it.
It seems to me, then, that the place and importance in the case of the rule and its transgression have weighed unduly with the Sheriff-Substitute, and that he has in consequence arrived at an unwarrantable conclusion. There are many decisions and dicta upon the point. “Put in a single sentence, the law, I think, is perfectly well settled, that mere disobedience of an order will not take a man out of the scope of his employment” ( per Lord Dunedin in Burns v. Summerlee Iron Company, Limited, 1913 S.C. at p. 230). In Barnes, 1912 A.C. at p. 47, the Lord Chancellor (Loreburn) said that you cannot deny a man compensation “on the ground only that he was injured through breaking rules.” Still more recently in Plumb v. Cobden Flour Mills Company, Limited, 1914 A.C. at p. 67, Lord Dunedin pointed out that “there are prohibitions which limit the sphere of employment, and prohibitions which only deal with conduct within the sphere of employment. A transgression of a prohibition of the latter class leaves the sphere of employment where it was, and consequently will not prevent recovery of compensation. A transgression of the former class carries with it the result that the man has gone outside the sphere.” The rule and its transgression were no doubt facts which the learned arbitrator was entitled to have in view, not as conclusive against the workmen's claim, but along with the other facts in the case, in considering whether or not the accident arose out of the employment— Traynor v. Addie & Sons, 48 S.L.R. 820, 4 Butterworth's W.C.C. 357. But, as already said, the other facts seem to me to afford no legal basis for the arbitrator's conclusion; and I do not see that the added fact of disobedience to the rule could alter that position. If the man had, in disobedience to thealternative branch
Page: 417↓
We were referred at the discussion to the case of Plumb v. Cobden Flour Mills Company, Limited, above cited, but then reported only in 30 Times L.R. 174, where Lord Dunedin delivered the judgment of the House. I gather that, so far as previous decisions are concerned, the spirit of his Lordship's very instructive opinion is rather in the direction of consolidation than of amendment or repeal. The workman, it appears, had improvised a mechanical convenience for the easier performance of his allotted task, and had, in so working, sustained injuries; and the House of Lords, affirming the judgment of the Court of Appeal, who reversed the award of the County Court Judge, held that the accident did not arise out of the employment. Lord Dunedin pointed out that it is well, in considering the numerous decided cases, to keep steadily in mind that the question to be answered is always the question arising upon the very words of the statute; that though it is often useful, in striving to test the facts of a particular case, to express the test in various phrases, such phrases are merely aids to solving the original question, and must not be allowed to dislodge the original words; and that it is wrong and unfair to seize upon some phrase used by a judge in any given case and treat it as if it afforded a conclusive test for all circumstances. In the case before us I have no mind to discuss in detail the various decisions cited during the argument; but I think that, if one sets about to apply to this case some of the more familiar tests and phrases used in previous cases, the result I have indicated will be found capable of bearing such application. It seems to me, for example, that at the time of the accident this workman was acting within the sphere and scope of his employment; that he was doing his own work, though (it may be) in an improper way, and in a way in which he had been told not to do it, and was not arrogating to himself or usurping the functions of another; that he was not doing something merely for purposes of his own; and that the risk he incurred—viz., slipping between the platform and a train which had not come to rest—was one which might be reckoned as reasonably incidental to his employment as a porter. But, following Lord Dunedin's injunction, I apply my mind to the very words of the statute; and so doing, I hold that the facts disclose no grounds upon which the arbitrator could competently find that the accident did not arise out of the appellant's employment.
For these reasons I am of opinion that the learned Sheriff-Substitute's finding cannot stand, and that we should sustain the appeal, answer the question put to us in the negative, and remit to the arbitrator to proceed as accords.
I think in the present case the Sheriff-Substitute has gone wrong upon a question of law, and that the accident here described did arise out of the employment of the workman. I turn to the reasons which were given by the Sheriff-Substitute for the conclusion which he reached, and I am unable to find any reason but one which can be regarded as sufficient. I do not think that his conclusion can be supported upon the ground that the appellant's act was unnecessary. It cannot be supported on the ground that it was obviously dangerous; nor can it be supported on the ground that it was not expected or required of the appellant.
There remains only the ground that it was expressly forbidden. As your Lordship has pointed out, it has been said in more than one case that disobedience to an order per se is not sufficient to disentitle a workman to get compensation. In order to disentitle him there must be something more than a mere breach of the rule.
The facts of this case have already been adverted to, and I do not require to resume them. The terms of the rule are that “no servant must jump on to the steps or footboards or run alongside of trains entering stations.” I think it is too plain for argument, and I do not think counsel attempted to argue, that if this accident had occurred when the porter was running alongside of the train and he had fallen and sustained injury, that would have been an accident which did not arise out of the employment. I consider that the first part of the rule is really in the same category.
In doing what he did on this occasion the appellant may have been over-zealous in his work, but I think it is quite plain that he was doing his own work and was not doing anything for purposes of his own. He was not at the time of the accident out of the territory of his employment, nor was the act put outside the range of his service by the prohibition.
If one requires to seek illustrations from the cases that were cited to us, it appears to me that the case of this workman is much more like the case of the workman in Mawdsley v. West Leigh Colliery Company, 5 Butterworth 80, than the case of
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I think that when the accident happened to the workman here he was within the sphere of his employment, and that the accident arose not only in the course of but also out of the employment. Therefore I think that the question should be answered in the manner proposed by your Lordship.
The Court answered the question of law in the negative.
Counsel for Appellant— G. Watt, K.C.— W. A. Fleming. Agents— Graham, Johnston, & Fleming, W.S.
Counsel for Respondents— Moncrieff, K.C,— T. Graham Robertson. Agents— Gordon. Falconer, & Fairweather, W.S.