Scottish Court of Session Decisions

Margaret Harrison or Nicol, residing at Kirkhill Park, Broxburn, widow of David Nicol, fanman, (1) as an individual and (2) as tutrix for Agnes Nicol, a pupil child of her marriage with the said David Nicol (hereinafter called the deceased), and John Nicol and Margaret Nicol, minor children of the said marriage, appellants, claimed in the Sheriff Court at Linlithgow compensation under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) from Young's Paraffin Light and Mineral Oil Company, Limited, 7 West George Street, Glasgow, respondents, and being dissatisfied with the determination of the Sheriff-Substitute ( Macleod) appealed by Stated Case.

The Case stated:—“The appellants and the respondents were agreed that if the appellants were entitled to an award the amount thereof should be £295, 7s

IV. The following facts were admitted or proved:—1. The appellants are respectively the widow and children of the deceased, and at the time of his death they were all wholly dependent on the earnings of the deceased, with the exception of John Nicol, who was only partly so dependent.

2. The deceased was a fanman for the spirit recovery department of the respondents’ oil works (hereinafter called ‘the works’). In the works the respondents carry on the business of manufacturing oil and other products from shale. The works consist of a shale breaker (which is situated at the west end of the works), retorts, condensers, naphtha treating houses, fan engine house, and various erections for the spirit recovery department (which last-named department is situated at the east end of the works). Between the shale breaker at the west end of the works and the spirit recovery department at the east end of the works there is a distance of 250 yards.

3. The duties of the deceased in the employment of the respondents were entirely limited to the spirit recovery department at the east end of the works, and his employment on any particular shift did not begin until he had reported himself to and taken over charge from the fellow-workman whom he was to relieve. It was the deceased's duty to report himself to his fellow workman for this purpose at the hour when his shift began in the bothy within the said spirit recovery department.

4. The works are bounded on the north by a very extensive spent shale bing, on the east by the fields of Loaninghill Farm, and on the south by the North British Railway (Bathgate section). The boundary of the works on the north-west (which is the part under special consideration) is not capable of such exact definition, but the environment of the works on their north-west side will be described in later paragraphs.

5. From their respective homes the men employed by the respondents in the works journey thereto by various routes. Only three of these routes need be mentioned, viz.—(1) A route from Broxburn across the fields of Loaninghill Farm, which gives access to the works on their east side. This was the shortest route for the deceased (being about 1 3 4 miles) from his house in Kirkhill to his working-place in the works, and he generally adopted it, using a hand-lamp to light him across the fields, but as the night libelled was wet and stormy he did not proceed to the works by this route, though he took his hand-lamp with him, unlighted, in case he might desire it for use across the fields on his way home in the darkness of the following morning. This route was quite free from any danger connected with the operations of the respondents till a workman had actually entered the works; (2) the public road from Uphall Village to Uphall Station. This is a very convenient route for the workmen who live at the west end of Uphall, but was somewhat circuitous for the deceased, who would have had to travel the whole length of the public road from Broxburn to Uphall, making his journey from his home to his working-place 2 1 2 miles; whereas (3) a private road (herein called the ‘Access Road’) enabled the deceased, travelling along the public road from Broxburn towards Uphall, to leave the said public road at a point considerably short of Uphall Village and reach his working-place in the works by a journey which was somewhat less than 2 miles from his house (1 mile 58 chains to be exact), and

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this saved him fully 1 2-mile as compared with the route described in the immediately preceding No. (2).

6. The said three routes (and others) were all regularly used by the men employed by the respondents at the works, with the knowledge of the respondents, and without their prohibition, but in connection with every route of access to the works, except the one across the fields of Loaninghill Farm, the respondents had a notice board giving the following warning:—‘This road is private property, and all trespass thereon is strictly prohibited. Any persons making use of it will do so at their own risk. Young's Company will not be liable for any accident arising from their traffic.’

7. On the night libelled the deceased travelled towards the works by the Access Road. The following are details connected with the Access Road:—

(1) The solum of the Access Road is the property of the North British Railway Company, and is rented by the respondents for a nominal way-leave in order that those of their workmen for whom it is convenient may have a comfortable route of access to the works. It varies in breadth from 10 feet to 8 feet, and in its whole breadth it is maintained by the respondents as a well-beaten pathway suitable for bicycles.

(2) The Access Road proceeds southwards from the Broxburn-Uphall public road till it reaches a point 14 yards south of the shale breaker at the west side of the works, and then turns at an obtuse angle to the east across six lines of rails, which are banked up with ashes to facilitate passage across these lines

(3) The total length of the Access Road from its junction with the Broxburn-Uphall public road to the said obtuse angle is about 1160 yards.

(4) The respondents being of opinion that the said warning on the notice board gives them all the protection from liability that they desire, permit the Access Road to be used by the general public, and it is in regular use by large numbers of the general public to and from Broxburn, and Uphall on the north, and Uphall Railway Station, Station Rows, Beechwood Cottages and Pumpherston Village on the south. The respondents' workmen and the general public travel along the Access Road from its junction with the Broxburn-Uphall public road together as far as the said obtuse angle.

(5) All persons, whether the respondents' workmen or the general public, are, while travelling south along the Access Road, distinctly outside the works till they reach the said obtuse angle, but on the other hand there is on each side of the Access Road, at that part thereof adjoining which the dead body of the deceased was found, land occupied by the respondents as adjuncts or excrescences of the works, as more fully detailed in the various sub-paragraphs of paragraph (7) hereof.

(6) Under the after-narrated circumstances the dead body of the deceased was found on the after-described switchback lye adjoining the Access Road, at a spot which was about—1. 94 yards north ( i.e., 94 yards short) of the said obtuse angle; 2. 330 yards from his working place; 3. half-way along the said switchback lye.

(7) The environments of the Access Road are as follows:—

( a) At a point a few yards south of its junction with the Broxburn-Uphall public road the respondents had erected a notice board with the warning which is set forth in paragraph IV, 6, hereof. The said notice board was not erected by the respondents as a boundary mark, and it is not in fact a boundary mark. The object of the respondents in erecting it was to give to intending users of the Access Road the earliest possible notice of the respondents' views concerning legal liability in the event of accident arising from their traffic.

( b) Travelling south of the Access Road there is a substantial stob and wire fence on the west side thereof along its whole length from its junction with the Broxburn-Uphall public road to the shale breaker (which is 14 yards north of the said obtuse angle). There is a similar fence on the east side of the Access Road, but on the east side the fence only extends for some 661 yards from the northern point where it begins. Thereafter the Access Road is bounded on the east for 317 yards by an extensive bing of spent shale removed thither by the respondents from the works, and thereafter for the remaining 170 yards of its length by a switchback lye used by the respondents for empty waggons; and for the safe working of the traffic on the said switchback lye it is not practicable to fence the Access Road along the course of the said switch-back lye, because the Access Road is used by the respondents' brakesmen when coupling waggons.

( c) Travelling south on the Access Road there is on the west side thereof no land in the occupation of the respondents from the junction of the Access Road with the Broxburn-Uphall public road for a distance of 361 yards, but from that point the respondents' Main Service Uphall-Hopetoun Railway runs alongside the whole remaining length of the said fence on its west side to the said shale breaker. Westwards from the point where the deceased's body was found the land immediately adjoining the Access Road is occupied by the respondents for the following purposes (mentioning them in their order westwards), viz.—( a) for the said fence; ( b) for the said Uphall-Hopetoun Railway; and ( c) for various sidings and bings. The respondents use their said Uphall-Hopetoun Railway for the conveyance of green shale, crude oil, and other traffic from the Hopetoun mines to the works, a distance of 3 or 4 miles.

( d) Travelling south on the Access Road there is on the east side thereof no land in the occupation of the respondents from the junction of the Access Road with the Broxburn-Uphall public road for a distance of 661 yards, but from that point the land on the east side of the Access Road is (as already stated in paragraph (7) ( b) hereof) occupied by the respondents for a distance of 317 yards for an extensive spent shalebing.

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From the point in the Access Road where the said shale bing ceases to be a boundary of the Access Road to that part of the Access Road which adjoins the spot where the body of the deceased was found, the Access Road is bounded on the east side by a narrow piece of ground (belonging to the North British Railway Company and leased by the respondents) which is hemmed in on the north and on the east by the said extensive spent shale bing. The said narrow piece of ground is occupied by the respondents for the following adjuncts or excrescences of the works, viz.—(1) Immediately bounding the Access Road on its east side is the said switchback lye, (2) to the east of the said switchback lye is a low refuse coal bing, (3) to the east of the said refuse coal bing is a full waggon siding, and (4) to the east of the said full waggon siding are two shale breaker sidings. The said narrow piece of ground lies entirely outside the works and to the north-west thereof.

( e) Notwithstanding the absence of a fence on the east side of the Access Road along the course of the said switchback lye there is no danger thereby caused to any user of the Access Road who is ordinarily heedful to where he is going. Even on the darkest night it is easy for a passenger southward bound to see the fence on his right hand side. Some diffused light is thrown on the Access Road where it adjoins the said switchback lye by a powerful Lucigen lamp within the works, and there is a are lamp in the shale breaker which also throws light on the Access Road at the same part. If one stares straight at the shale breaker lamp from a point near it its light will dazzle and blind the one who stares, but to any person of ordinary vision who is travelling along the Access Road beside the said switchback lye the shale breaker lamp will give a satisfactory though not a perfectly steady light.

( f) Though the vicinity of the said switch-back lye to the Access Road creates no danger to one who is ordinarily heedful, it is nevertheless possible for one who is paying no heed to his course to leave the Access Road and put his foot or feet between the rails of the said switchback lye, because though in most places the top of the rail is above the level of the Access Road, yet there are places where at times the surface of the ground on each side of the rail is practically flush with the top of the rail.

( g) The deceased has frequently travelled by the Access Road and was well acquainted with all its features, two of those features being (1) that during the night shift there were waggons in motion on the switchback lye, and (2) that no lamp was needed for safety of travelling by a user of the Access Road. The Access Road in the vicinity of the spot where the deceased's body was found has a very gentle slope downwards from the fence on the west of the Access Road for about half its breadth. The other half of its breadth, i.e., the half nearest the said switchback lye, is practically level.

8. On the night libelled (28th November 1913) the deceased left his home in apparently perfect health a little after nine o'clock (that being his usual time when on the night shift) dressed for his work and with the intention of proceeding to his work, which he was due to begin at ten o'clock. He was a particularly regular workman. The distance from the deceased's house to his place of work was (as hereinbefore narrated) somewhat more or somewhat less than 2 miles, according to the route which he might select.

9. The deceased was last seen alive between 9·40 and 10·15 o'clock on the night libelled. (The evidence does not permit a more definite finding on this point.) He was then proceeding westwards along the Broxburn-Uphall public road towards its junction with the Access Road. He was then quite sober. He had passed the last public-house on his way between his home and his working-place by the Access Road, and there is no reason to suppose that he partook of strong drink later. To the last person to whom he spoke he mentioned that he was going to take the Access Road to his work that night. From the point at which he was last seen alive he could easily have reached his working-place in ten or fifteen minutes, but he did not reach his working-place that night, and there is no further history of what he did, where he went, or what happened to him until 8·45 o'clock next morning.

10. About 8·45 on the morning after the night libelled, when the men in charge of one of the respondents' locomotives were proceeding to remove empty waggons (each weighing seven tons when empty) from the said switchback lye, their attention was attracted by the rising of the wheel of one of the said waggons, and they discovered that the obstruction was due to the deceased's body, which was then quite cold. The said locomotive caused one wheel of each of two waggons to pass over the deceased's body, but before either of the said two waggons had been put in motion by the said locomotive the deceased had been dead for at least two or three hours, and his body had been lying underneath a waggon and between the wheels thereof in the following position, namely, partly on back and partly on right side, head resting on the coal bing immediately to the east of the said switchback lye, and feet in between the rails. There was no reason to suppose that the position of the body had been altered from the time that the deceased was first injured. The position of the body, the injuries on the body, and the position of the deceased's cap and lamp were all quite consistent with his having been knocked down while still alive by the buffer of a waggon, and having been flung where his body was found, and thereafter having been severely crushed; but, on the other hand, it is possible that the whole injuries found on his body may have been caused by the waggons which passed over his body after his death.

11. A medical man arrived on the scene within an hour after the said finding of the deceased's body. He found that the left arm had been broken and nearly severed, and that the crushing of the body had been

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so severe that the lung was protruding from the mouth, but not foreseeing the various questions that have arisen, the examination which he made did not enable him to testify whether rigor mortis had or had not set in when he saw the body, neither could he testify whether the injuries which he saw had been inflicted after death or during life, but if the injuries which he saw had all been sustained during life, they must have caused practically instantaneous death.

12. On the night shift it is a regular experience that unattended or empty waggons are in fairly rapid motion by gravity down the said switchback lye towards its northern or dead end— i.e., meeting any user of the Access Road who is southward bound. On the night libelled there were no waggons in motion along the said switchback lye between 11 p.m. and 8·45 a.m. which could have injured the deceased, but between 9·30 and 11 o'clock on the night libelled there were waggons in motion on the said switch-back lye, and it is possible that during the hours last mentioned on the night libelled a person who stepped off the Access Road on to the said switchback lye might be knocked down by a moving waggon without the knowledge of the workman who set the waggon in motion.

13. The coal bing on which the deceased's head was found resting was of such a nature as to make it very unlikely that the deceased could by a slip or a slide have got into the position in which his body was found.

On the foregoing facts I reached the following conclusions in law:—1. With some hesitation I drew the inference that the deceased while proceeding from his home to his work by the Access Road in a heedless moment accidentally left the Access Road about 10 o'clock on the night libelled and was thereupon knocked down and fatally injured by a waggon in motion on the said switchback lye. As I was dealing with the case of a workman who was (1) sober, (2) in good health, and (3) regular at his work, it seemed to me my duty to disregard the theories to the contrary of the inference which I drew, that were presented to me, for they scarcely attained even to the dignity of possibilities. 2. I regarded the deceased as a man who was lawfully pursuing a route of his own selection from his home to his work under conditions identical as to possibility of injury with those of any member of the general public pursuing the same route, and who (on an application of the tests supplied by Graham v. Barr & Thornton, 1913 S.C. 538, 50 S.L.R. 391) was fatally injured before he had reached the ‘margin of his employment.’

Accordingly I decided that the accident to the deceased had not arisen out of and in the course of his employment with the respondents, and I assoilzied the respondents, with expenses.”

The question of law for the opinion of the Court was—“Was I right in deciding that the accident to the deceased did not arise out of and in the course of his employment with the respondents?”

Argued for the pursuer—The deceased was killed by accident arising out of and in the course of his employment. Employment did not begin only when the workman took up his tools, nor did it cease as soon as he laid them down. A reasonable “margin both of time and place” must be allowed for reaching the place of employment or going from it, within which the workman was in the course of his employment. If the workman had reached the “precincts of the works,” as here, he was within that margin — Graham v. Barr& Thornton, 1913 S.C. 538, 50 S.L.R. 391, per Lord President (Dunedin); Cross, Tetley, & Company v. Catterall, 116 L.T. 261, referred to in Sharp v. Johnston & Company, Limited, [1905] 2 KB 139, at p. 145; Gane v. Norton Hill Colliery Company, [1909] 2 KB 539, per Cozens Hardy, M.R., at p. 544; Mackenzie v. Coltness Iron Company, Limited, October 21, 1903, 6 F. 8, 41 S.L.R. 6; Jackson v. General Steam Fishing Company, Limited, 1909 S.C. (H.L.) 37, 46 S.L.R. 901; contrast Hendry v. United Collieries, Limited, 1910 S.C. 709, 47 S.L.R. 635. The deceased was using a means of access provided by the employers, and while going to work by it was within the course of his employment— Cremins v. Guest, Keen, & Nettlefolds, Limited, [1908] 1 KB 469; Mole v. Wadworth, 1913, 6 B. W.C.C. 129. The Sheriff was wrong in holding that the employers' premises were the buildings only, and it was clear from the findings in fact that the accident occurred within the employers' premises and in the course of the employment.

Argued for the defenders—The question in this case was one of fact, and the Sheriff was entitled to find as he did. It was for him to say where the premises began. This case was similar to Graham v. Barr& Thornton ( cit.); Caton v. Summerlee and Mossend Iron and Steel Company, Limited, July 11, 1902, 4 F. 989, 39 S.L.R. 762; Anderson v. Fife Coal Company, Limited, 1910 S.C. 8, 47 S.L.R. 3. The deceased was not using a means of access the use of which was a term of the contract of employment, as in Cremins v. Guest, Keen, & Nettlefolds, Limited ( cit.), or which was the only way to the works, as in Mold v. Wadworth ( cit.). He had taken one of several roads which were available, and was not within the course of his employment— Davies v. Rhymney Iron Company, Limited, 1900, 16 T.L.R. 329; Gilmour v. Dorman, Long, & Company, Limited, 1911, 4 B. W.C.C. 279; Walters v. Staveley Coal and Iron Company, 1911, 49 S.L.R. 623, 4 B.W.C.C. 303; Williams v. Sir C. G. A. Smith, 1913, 6 B.W.C.C. 102. Even if the accident arose in the course of the employment, it did not arise out of it— Biggart v. Owners of s.s. “Minnesota,” 1911, 5 B. W.C.C. 68; Kitchenham v. Owners of S.S. Johannesburg, [1911] AC 417, 49 S.L.R. 626.

At advising—