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Cite as: [1916] ScotLR 575, [1916] SLR 575

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SCOTTISH_SLR_Court_of_Session

Page: 575↓

Court of Session Inner House Second Division.

Saturday, May 20. 1916.

53 SLR 575

Lynch

v.

The Crown Steamship Company, Limited.

Subject_1Master and Servant
Subject_2Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 1 (1)
Subject_3Accident Arising out of the Employment
Subject_4Unexplained Disappearance of Ship's Cook — Inference from Proved Facts.
Facts:

In a claim for compensation by the dependents of a ship's cook who had been last seen in the ship's galley when the vessel was at sea, the arbiter found that there were not facts admitted or
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proved from which it could be inferred that the deceased met his death by accident arising out of his employment, and refused compensation. Held that the arbitrator was entitled so to find, and that he had not misdirected himself in law.

Headnote:

In an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) in the Sheriff Court at Glasgow, between Mrs Georgina Loutit or Lynch, widow of the deceased John Lynch, 6 Muir Street, Renfrew, as an individual and also as tutor of her pupil child, and another, appellants, and the Crown Steamship Company Limited, respondents, the Sheriff-Substitute ( Mackenzie) refused to award compensation, and at the request of the claimants stated a Case for appeal.

The Case stated—“The following facts were established, viz.—… That on 22nd January 1914 the said deceased John Lynch signed on with the respondents as ship's cook and baker on board the s.s. ‘Crown of Navarre’ belonging to them, and sailed from Glasgow on board the said ship for the West Indies. That on 25th January 1914, when the said ship was three days' journey from Glasgow, the said John Lynch about 6·45 a.m. was in the ship's galley, which is on the bridge deck, and after looking for something there and directing the second cook to have the porridge on at 7 a.m., remarked’ This is a hell of a job; ‘that he thereafter left the galley and was never seen again by anybody on board. That the said bridge deck on which the galley is situated is fenced by a strong iron railing about 3 feet high with uprights about 4 feet apart; that there was no observable grease on the deck that morning. That on the Friday before the 25th January, which was a Sunday, the deceased had caught hold of the second cook by the arm and said ‘Let's finish it,’ which the second cook understood at the time as a joke. That there is no evidence beyond that of the captain that the deceased suffered in any way from depression, and he only remarks that he seemed ‘a little depressed;’ that the deceased was on the best relations with his family. That about 7·30 a.m. on said 25th January the chief steward informed the captain that the chief cook was amissing; that all hands were mustered, a boat got ready, and a hand sent into the forerigging; that the ship was put back on her course and cruised about in the hope of discovering the missing man, but that nothing was seen, and about 9·52 the ship was put on her course again.…

I found in law that there are not facts admitted or proved in this case from which it could be inferred that the deceased met his death by accident arising out of and in the course of his employment with the respondents. I therefore found that the respondents were not liable in compensation to the appellants in respect of said death, and found the appellants liable to the respondents in expenses.”

In his note the Sheriff-Substitute stated—“There is a faint trace of evidence on the part of the captain that this man was ‘a little depressed,’ but this is not supported, indeed rather opposed, by the other testimony. The young man Judge speaks of his once catching him by the arm and saying, ‘Let's finish it,’ but he evidently regarded this as a joke, and gave no real tragic meaning to it. Here, then, is a man who goes out of the place where his immediate work is situated, without apparently any of his working tools or utensils in his hand, no apparent duty calling him forth, who gives directions for something to be done by his assistant in about quarter of an hour—and mysteriously disappears.

The pursuers have the onus of showing at least by reasonable inference from proved facts that his death arose by accident out of and in the course of his employment. It was in the course of that employment, but I do not feel entitled to draw the inference that it arose out of it.

It is not necessary to regard suicide as the only, or even the most likely, alternative. The evidence pointing in this direction is too faint to overcome the natural presumption against any such a conclusion. There are other ways in which he may have fallen into the sea, by pure misadventure, or by trying some dangerous route in the narrow compass of the ship, or even by risking his life by leaning for some purpose of his own, or for amusement, too far over the railings. All this is conjecture. There is nothing, so far as I can discover, to connect his disappearance with a risk incidental to his work as a ship's cook.

The case of Kerr or Lendrum v. The Ayr Steam Shipping Company, 1915 A.C. 217, certainly suggests an analogy with this case, but I am inclined to think that there were important circumstances present there which are not here. There is no evidence that the deceased man Lynch was affected with sickness or had been seen leaning over the railings in such a condition. The case of Proctor, 1915 W.C.C. 425, is, I think, distinguishable as there was there the inference arising from the facts that the deceased engineer had been engaged examining the screw. On the other hand, the two cases of Bender and Marshall, 2 B. 22 and 3 B. 514 respectively, present similar difficulties to the present case. I have said it is with regret that I follow these, as I cannot help feeling that where the truth cannot be ascertained the absence of inference may bear more hardly upon the pursuers than a different judgment would upon the defenders. But the statutory conditions of compensation must in every case be fulfilled.”

The question of law was—“Whether on the above findings in fact the arbitrator could competently find that it was not proved that the deceased John Lynch met his death by accident arising out of his employment with the respondents?”

Argued for the appellants—The arbiter had not pronounced a finding in fact against the claim by the defendants, but had wrongly felt himself precluded by authorities from arriving in law at a finding that deceased met his death by an accident arising out of his employment. Suicide was negatived, and there was no evidence of foul play, or that the deceased had added a risk to his
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employment. The onus upon the claimants did not require them to exclude every possibility that could be suggested against their claim— Lendrum v. Ayr Steam Shipping Company, Limited, 1914 S.C. (H.L.) 91, per Lord Loreburn at p. 93, 51 S.L.R. 733. It was a reasonable inference that the deceased met his death by an accident arising out of and in the course of his employment, and the arbiter ought so to have found in law. He had in reality misdirected himself in law, and had not given effect to the cases where compensation had been awarded in circumstances similar to the present case— Mackinnon v. Miller, 1909 S.C. 373, 46 S.L.R. 299; “Swansea Vale” v. Rice, [1912] AC 238; Lendrum ( supra); “Serbino” v. Proctor, [1916] 1 A.C. 464. These cases were not outweighed by such cases as Bender v. Zent, [1909] 2 KB 41, and Marshall v. “Wild Rose,” [1909] 2 KB 46, aff. [1910] AC 486.

The respondents were not called upon.

Judgment:

Lord Justice-Clerk—Mr Mackay, as he always does, has said everything that can be said in this case, but I do not think it is one in which we can interfere. The arbitrator states all the facts that he has found proved, and then he says that from these facts he cannot infer that this accident arose out of and in the course of the employment. He perhaps goes further than he intended, for according to the explanation in his note he might have found that the accident arose in the course of the employment but could not draw the inference that it arose out of the employment.

Whatever our duties or our powers may be, I do not think the facts stated here would warrant us in taking any further steps in the case. If it were within our power it would be in accordance with our legal duty to send this case back to the arbitrator and say to him that he had not applied his mind to the question whether he could properly infer that this accident arose out of the deceased's employment. But it seems to me that he has already applied his mind to the question and has negatived that conclusion. In the circumstances of this case I think he is final in that matter, and we have no right to interfere with his judgment.

Lord Dundas—I am of the same opinion. I am not for interfering with what the learned arbitrator has done. I think it was quite open to him to reach the conclusion that he did, and with regard to his finding, although it is not perfectly expressed, I take it to mean that he has found that the facts admitted or proved do not warrant the inference in law that the deceased met his death by accident arising out of his employment. I think that this conclusion was not merely open to him but that it was quite right.

He treats the case, as appears from the note, as one where the truth “cannot be ascertained.” It is undoubtedly for the applicant to prove his case, and here I humbly think that there are almost no material facts at all; and one might say, as Lord Shaw observed in the well—known case of Marshall v. The “Wild Rose,” 3 Butter worth's W.C.C. 514, that all is conjecture. To my mind it is not clear that this ship's cook met his death by accident, but assuming that that was so I find no evidence whatever that it was by accident arising out of the employment.

Lord Salvesen—I am of the same opinion. As the Lord Chancellor pointed out in a recent case— S.S. “Serbino” v. Proctor, [1916] 1 A.C. 464, p. 468—there are three alternative modes in which a man in circumstances like those narrated in the case may have met his death—suicide, foul play, and accident. The appellants maintained that there is a presumption against suicide, that there is a presumption against foul play, and that therefore in the absence of any evidence you must assume that the man perished by accident because there is no presumption against a man meeting his death in that way. Even if that were so, I am not aware that the courts have ever laid it down that if you can affirm that a man perished by accident you must go still further and presume that the accident arose out of his employment, which is the proposition that the appellants must establish in fact before they can ask us to interfere with the arbitrator's award.

Now the arbitrator, as your Lordship has said, applied his mind to this question very closely and very sympathetically so far as the appellants are concerned. He, in the first place, thinks that the evidence of the extraordinary conduct of the man just before the accident happened, and the significant remark which he had previously made to his fellow-cook, were too vague to overcome the natural presumption against suicide. Then he goes on to say—“There are other ways in which he may have fallen into the sea—by pure misadventure, or by trying some dangerous route in the narrow compass of the ship, or even by risking his life by leaning for some purpose of his own, or for amusement, too far over the railings. All this is conjecture. There is nothing, so far as I can discover, to connect his disappearance with a risk incidental to his work as a ship's cook.”

Therefore the finding of the arbitrator was that, assuming that the man perished by accident as he is inclined to conjecture, there was nothing to suggest how the accident occurred, or that it was an accident that arose out of his employment. For my own part I have the greatest possible difficulty in understanding how a man could accidentally fall over a ship's bulwark 3 feet high in calm weather in the course of an employment which confined his duties to the deck so fenced, and if it is difficult to suppose that he perished by suicide or by foul play it seems to me equally difficult to understand how he met his death by accident arising out of his employment.

Lord Guthrie was absent.

The Court answered the question of law stated in the case in the affirmative.

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Counsel:

Counsel for the Appellants— Sandeman, K.C.— A. M. Mackay. Agents— St Clair Swanson & Manson, W.S.

Counsel for the Respondents— Macmillan, K.C.— C.H. Brown. Agents— Smith & Watt, W.S.
1916