Scottish Court of Session Decisions

Mrs Marjory M'Robb or Officer, widow of Charles Officer, appellant, being dissatisfied with an award of the Sheriff-Substitute ( Young) at Aberdeen in an arbitration by her for herself and as tutrix of her pupil children, against Charles R. Davidson&Company, shipowners, Aberdeen. respondents, craving decree against the respondents of £300 as compensation under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) in respect of the death of her husband, appealed by Stated Case.

The Case stated—“The following are the facts admitted or proved:—(1) That the appellant is the widow of the deceased, and she and her pupil children were wholly dependent on his earnings; (2) that at the time of the accident in question, and for some time previously; the deceased was in the employment of the respondents as chief engineer of their steamship ‘Ferryhill’; (3) that on or about Friday, 25th February 1916, the ‘Ferryhill,’ then under charter to the Admiralty, and engaged for the coaling of patrol boats, was moored in the inner basin of Ramsgate Harbour alongside a hulk which was berthed between the ‘Ferryhill’ and what is known as the Cross Wall Quay, as shown on the plan produced; (4) that access from the quay to the ‘Ferryhill’ was obtained in the first place by a rope ladder on the hulk at the point marked C on the plan, and next by an ordinary ladder from the hulk to the ‘Ferryhill’ at the point marked D; (5) that on the evening of the

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said 25th February the deceased Charles Officer left the ship and went ashore with leave, though for his own purposes and not on ship's business, and that about 10·30 p.m. he returned to the harbour, and passing through the entrance at the point marked A on the plan, went on with the object of making his way along the Cross Wall Quay to his ship; (6) that when he so returned to the harbour the deceased was sober and fit to take care of himself; (7) that John Barron, first officer of the ‘Ferryhill,’ who also went ashore the same evening, returned to his ship about 10·50 p.m., and found that the deceased had not then come back; (8) that the night was exceptionally dark, stringent lighting restrictions imposed by the naval and military authorities were in force at the harbour, and though the edges of the quay walls had been painted white, this precaution was of little if any assistance for the guidance of persons going on the quay; (9) that no one witnessed an accident to the deceased at the quayside on the night in question, but from the facts it may be reasonably inferred that when the deceased was proceeding towards the berth occupied by the hulk, he missed his way owing to the darkness prevailing and fell into the harbour at or near the point arrowhead on the plan, and was drowned; (10) that on the following day about mid-day his body was found at the point marked B on the plan, a distance of 70 yards or thereby from C, the place of access to the hulk from the quay; (11) that there was very little tidal movement in the harbour, and a body falling from the quay into the water would naturally be carried only a short distance from the spot where it fell; (12) that the harbour of Ramsgate is a public harbour, and access to its quays has been ordinarily open to the public, but since the outbreak of war parts of the harbour have been subject to the control of the naval and military authorities, and used conform to their regulations; (13) that since the War began these authorities have taken control of the pieryard, the east pier and west pier, and the Cross Wall Quay from the fish market to the powder magazine, and have also had under their control the quays of the inner basin, except the military road quay and the quay at the west end running from the ice-house to the powder magazine; (14) that to the parts of the harbour under the control of the said authorities there are two landward accesses, one at the point A, which at the time of the accident was in the charge of a sergeant of police, and the other at the point E, which was looked after by the military; (15) that under the said regulations only persons wearing naval or military uniform, and persons known to have business at the harbour, are allowed to enter by these accesses the places under the control of the authorities, and all persons not wearing naval or military uniform are required to produce passes in order to be allowed entry; (16) that passes for men in the service of the Admiralty are issued direct from the naval officer at the harbour, signed by a naval officer, and other persons receive printed passes from the harbour office, signed by the harbour-master and countersigned by a naval officer; (17) that the deceased, prior to leaving the harbour on the night of the accident, received a pass duly signed entitling him to return, and was in possession of the pass when later on he re-entered the harbour area at A; (18) that at the time of the accident vessels other than Admiralty vessels and vessels working for the Admiralty were allowed into the inner basin, but excepting vessels laid up since the commencement of the War, such as fishing and small craft, all vessels other than Admiralty vessels and vessels working for the Admiralty did not enter the outer or inner harbour without special permission from the senior naval officer in charge; (19) that vessels other than Admiralty vessels and vessels working for the Admiralty were not at that time permitted to be berthed in the inner basin alongside the Cross Wall Quay, that is from A to E, but only at the quay at the west end of the basin, that is from E to F, and at the quays from F to G and G to A on the plan; (20) that at the time of the accident, besides the hulk and the ‘Ferryhill,’ a number of steam drifters in the service of the Admiralty were also berthed to the east of them, and right up to the pier-yard quay at the east end of the basin.

On the foregoing facts I held that the accident to the deceased happened in the course of his employment, but that it had not been shown that it arose out of his employment. I therefore found that the respondents were not liable in compensation.”

The question of law was—“Whether I was entitled to hold that the accident to the deceased did not arise out of his employment with the respondents?”

To his award the arbitrator appended the following

Note.—“Compensation in respect of the death of the deceased Charles Officer is here claimed by his widow for herself and her pupil children. There has been no proof in the case, but parties have agreed on a joint minute of admissions, and in producing a plan showing the area of the Ramsgate Harbour and various points particularly mentioned in their minute.

On the facts it seems to me that the deceased could not be said to have returned to the sphere of his employment at the time of the accident. It did not happen at the place where his duties required to be done, and it had no specific connection with what in the usual phrase might be called the scene of his labour. The object which he had in view was to reach his ship. He was on his way to it no doubt. But the accident did not occur to him when he had reached it or was endeavouring to get on board. He had not indeed come near the spot at which the hulk could be boarded from the quay, so that he might pass on to his ship moored outside.

In my opinion, then, the case is within the authority of the decision in Craig v. The Owners of s.s. ‘Calabria,’ 1914 S.C. 765, 51 S.L.R. 657. There a seaman having legitimately left his ship was returning to it

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after dark along the quayside, the footway on which was narrowed by a row of barrels, and he fell over the side in the water when about a distance of 12 feet from the gangway leading from the quay to the ship. There it was held that the accident did not arise out of the seaman's employment, the Court resting their judgment on the view that he had not taken any specific step towards getting on board his ship, and was not doing anything specifically connected with his employment on the ship. The judgment in that case was in accordance with the rule explained by Fletcher Moulton (L.J.) in Kitchenham v. The Owners of s.s. ‘Johannesburg,’ [1911] 1 KB 523, and subsequently approved of by the House of Lords (49 S.L.R. 626). Dealing with an accident which happened to a ship's steward in returning to the ship at night after being on shore with leave, he said—‘The return to the ship is in the course of his employment, but the risks do not become risks of his employment until he has to do something specifically connected with his employment on the ship. Thus, if the risk is one due to the means of access to the ship, as in Moore v. Manchester Liners, [1910] AC 498, 48 S.L.R. 709, an accident is rightly said to arise out of his employment; but if the accident is shown to have arisen from something not specifically connected with the ship, it cannot be said to have arisen out of his employment.’

On behalf of the pursuer some significance has been ascribed to the circumstances attending the control of the harbour by the naval and military authorities; and the exclusion of the public from free access to the quays has been founded on as indicating that there was here a special risk pertaining or incidental to the deceased's employment, but in my opinion the conditions existing in consequence of the regulations enforced by the authorities do not make any difference as to the rule to be applied in the present case. On the night when the deceased was drowned he had gone on shore with leave and was therefore lawfully absent from his ship, but he was indubitably off duty. He was not away from his ship in order to carry out any job entrusted to him, or in obedience to any order received. There was not a little danger in finding a way along the quay from his ship to the public road outside the harbour premises, and in finding his way back again by the quay to his ship. But the going to and from the town was not necessary for or connected with the performance of any duties he had to discharge in his employment. He was ashore not on ship's business but on his own. This would appear to be a fact of prime importance in view of leading decisions, and particularly of the ruling in the case of Parker v. The Owners of s.s. ‘Blaekrock,’ [1915] A.C. 725, 53 S.L.R. 500. In that case a seaman was accidentally drowned by falling from a pier into the water when returning to his ship, and with special regard to the reason for his absence from the ship it was laid down that to make the accident one arising out of the employment it is not sufficient that it should happen during a period when the seaman was lawfully absent from his vessel; the absence from the vessel must be not merely lawful but in pursuance of a duty owed to the employer.

The fact that here the deceased had gone out to town and returned by the quay on an errand of his own serves also, in my opinion, to distinguish the present case from that of Longhurst v. John Stewart & Son, Ltd,., [1916] 2 K.B. 803, a case referred to at the hearing of parties.

I do not think there is any room for the suggestion that the quay itself was the access to the ship. Its moorage certainly was reached by the quay just like the berths of other ships which lay in the harbour or inner basin. But the quay was common to all who had business there, and did not form the specific means of access appropriate to the ‘Ferryhill.’”

Argued for the appellant—The accident arose in the course of the workman's employment, for he went ashore with leave. It also arose out of his employment, for his employment not only compelled him to traverse an unlighted quay on a dark night, but also exposed him to a risk it was impossible for a member of the public to run, for it was only as a result of his employment that the workman could and did get access to the quay. The following cases were referred to— Moore v. Manchester Liners, Ltd., [1910] AC 498, 48 S.L.R. 709; Kitchenham, v. Owners of s.s. ‘Johannesburg,’ [1911] AC 417, 49 S.L.R. 626, [1911] 1 KB 523; Craig v. Owners of s.s. ‘Calabria,’ 1914 S.C. 765, 51 S.L.R. 657; Parker v. Owners of s.s. ‘Blaekrock,’ [1915] A.C. 725, 53 S.L.R. 500, [1914] 2 KB 39; Nicol v. Young's Paraffin Light Co., Ltd., 1915 S.C. 439, 52 S.L.R. 354; Longhurst v. John Stewart & Son, Ltd., [1916] 2 K.B. 803. [ Lord Mackenzie referred to Simpson v. Sinclair, 1917, 54 S.L.R. 267.]

Argued for the respondents—The accident arose in the course of the employment but did not arise out of it. The workman went ashore on business of his own and until he returned to his duty no accident to him could arise out of his employment. He returned to his duty when he returned to the ship or the access to it. In Moore's case ( cit.) the man had reached a ladder leading to the ship. In Craig's case ( cit.), which was decided against the workman, he had not reached the gangway leading to the ship. In Longhurst's case ( cit.) the facts were special, for the dock was a private dock belonging to the employer, so that so long as the workman was in the dock he was on his employer's business. The authorities did not warrant a finding that the quay in the present case was an access to the ship. The workman's presence on the quay was as a member of the public whose right to be there had not been interfered with, and there was no finding that he was there solely as a member of the ship's crew. Parker's case ( cit.) was referred to.

Senior counsel were not called upon.