Scottish Court of Session Decisions

Mrs Annie Anderson or Scrimgeour, widow of the deceased Donald Watson Scrimgeour, seaman, 37 Gellatly Street, Dundee, appellant, being dissatisfied with an award of the Sheriff-Substitute at Edinburgh ( Orr) in an arbitration under the Workmen's Compensation Act 1900 (6 Edw. VII, cap. 58) between her and William Thomson & Company, shipowners, 28 Bernard Street, Leith, managers for the owners of the s.s. “War Carp,” respondents, appealed by Stated Case.

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The Case stated—“This is an arbitration in which the appellant claims compensation from the respondents in respect of the death of her husband Donald Watson Scrimgeour, seaman.

The facts admitted or proved were as follows:—1. That the appellant is the widow of the late Donald Watson Scrimgeour, who in December 1918 was a seaman on the s.s. “War Carp,” and that respondents are managers of said vessel, and represent its owners for the purposes of the present action. 2. That the said D. W. Scrimgeour was in the employment of respondents while said vessel lay at Philadelphia in December 1918. 3. That on the evening of the second day or thereby after said vessel arrived at Philadelphia from Genoa in ballast the said D. W. Scrimgeour and six or seven other members of the crew were allowed to go ashore to make purchases for themselves. 4. That Scrimgeour went ashore between six and seven o'clock at night, and remained on shore till between eleven and twelve o'clock. 5. That at the time of the accident the only means of access to the quay from the ship and from the quay to the ship was an ordinary wooden ladder about 40 feet long and about 18 inches wide. 6. That said ladder was properly secured at its upper end to the ship by ropes, and at the lower end it rested against a shed on the quay eight or ten feet back from the edge of the quay. 7. That said ladder was well and sufficiently lit by two lamps, one on the top and the other at the bottom, and by the light issuing from said open shed or warehouse, which also lit up the lower end of the ladder. 8. That the top part of said ladder projected at the time of the accident to Scrimgeour about four or five feet above the bulwark. 9. That there was a small ladder with three rungs inside the ship leading from the bulwark down to the deck, and men going on board stepped from the said long ladder on to or across the rail of the bulwark on to the small ladder, holding on to the former until they had a footing on the small ladder. 10. That said long ladder had been put up and secured as soon as said ship came into Philadelphia, and had been in constant use by stevedores' men, who were fitting up the ship for grain, as well as by members of the crew. 11. That on the night of the accident to Scrimgeour said ladder was used by other members of the crew to go ashore and aboard, and that both on said night and previously said ladder was used for leaving and entering the ship without difficulty and with perfect safety. 12. That said access to the ship was at the time of the accident to Scrimgeour sufficient and quite secure. 13. That Scrimgeour while on shore visited some public-houses where he was supplied with liquor. 14. That he was found by two other members of the crew who were returning aboard about 100 to 150 yards from the ship sitting on a post on the quay in a dazed condition under the influence of drink, and that they thought it necessary to assist him, and did assist him, by each taking an arm until they reached the foot of the ladder. 15. That Scrimgeour caught hold of the sides of the ladder and went up, but in stepping from the ladder on to the rail of the bulwark he let go his grip of the ladder with both hands and fell back, and falling into the water was drowned. 16. That the night was dark and showery, and that before the accident frost had set in. 17. That said accident arose entirely out of Scrimgeour's dazed condition due to the liquor he had consumed. 18. That said accident did not arise out of his said employment.

On 22nd June 1920 I issued my award, by which I found that the respondents were not liable to pay compensation to the appellant in respect of the death of the said D. W. Scrimgeour, and I accordingly assoilzied the respondents and found the appellant liable to them in expenses.”

The question of law for the opinion of the Court was—“Whether upon the facts stated I was entitled to find that the said accident did not arise out of the employment of the deceased within the meaning of the Workmen's Compensation Act 1906?”

The Sheriff-Substitute's note was—“This case appears to me to belong to the class of cases of which Nash ( 1914, 3 K.B. 978) is an example. The facts of the two cases bear a strong resemblance to one another. I think this accident had nothing to do with Scrimgeour's employment except that it occurred more or less in the place of his employment—that is, as he was going on board the ship. Though it may therefore be said to have occurred in the course of his employment, it did not arise out of it. It arose entirely out of the man's state of drunkenness—a dazed and semi-drunken state which was sufficient to prevent him stepping on board with safety—a thing which other men in a more sober condition found no difficulty whatever in doing that night.”

On 17th and 18th November 1920 counsel were partly heard on the case, and on 23rd November 1920 the Court remitted to the Sheriff-Substitute to delete findings 17 and 18, and after hearing parties to add to or amend the findings in fact in so far as might be necessary to bring out the question of law in the case, and also to make a finding as to the dependency of the appellant upon the deceased at the date of his death, and to report.

In obedience to the above remit the arbiter deleted findings 17 and 18, made additions to findings 6 and 15, and added a new finding 17, all as follows:—“6. That said ladder was properly secured at its upper end to the ship by ropes and at the lower end it rested against a shed on the quay 8 or 10 feet back from the edge of the quay, the lashing being so arranged at the top that it could slide up and down the ladder as the ship rose and fell with the tide. A watchman employed by the ship watched the shore-end of the ladder. 15. That Scrimgeour caught hold of the sides of the ladder and went up without help, but in stepping from the ladder on to the rail of the bulwark he, as the result of his dazed condition due to the liquor he had consumed, let go his grip of the ladder with both hands, lost his footing and fell back, struck the quay, and falling into the water was drowned. 17. That the appellant

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was wholly dependent upon Scrimgeour at the time of his death.”

The case was further heard on 9th March 1921.

The appellant argued that the accident arose out of the employment, and cited the following cases:— Fraser v. Riddell & Company, 1914 S.C. 125, 51 S.L.R. 110; Moore v. Manchester Liners, [1910] AC 498; Officer v. Davidson & Company, 1918 S.C. (H.L.) 66, 55 S.L.R. 185; Wicks v. Dowell & Company, Limited, [1905], 2 K.B. 225; M'Kendry v. Wright & Greig, 1919 S.C. 98, 56 S.L.R. 39; Dennis v. A. J. White & Company, [19171 A.C. 479; Robertson v. Allen Brothers & Company, 1908, 1 B.W.C.C. 172, 77 L.J. K.B. 1072, 98 L.T. 821. The case of Nash v. Owners of s.s. “Rangatira,” [1914] 3 KB 978 (which the Sheriff-Substitute relied upon), and the cases of Frith v. Owners of s.s. “Louisianian,” [1912] 2 KB 155, and Murphy and Landwith v. Cooney, [1914] 2 I.R. 76, 7 B.W.C.C. 962, were distinguished in Williams v. Llandudno Coaching and Carriage Company, Limited, [1915] 2 K.B. 101, and should be so distinguished here.

The respondents argued that the accident did not arise out of the employment, and cited the following cases:— Robertson v. Woodilee Coal and Coke Company, 1919 S.C. 539, per Lord Mackenzie at 544, 56 S.L.R. 498; Halvorsen v. Salvesen, 1912 S.C. 99, 49 S.L.R. 27; Nash, cit. sup. The cases of Fraser and Williams were to be distinguished in view of the recent decisions of the House of Lords in the group of cases of which A. G. Moore & Company v. Donnelly, 1920, 58 S.L.R. 85, was one. It was an inference from these latter decisions that in using appliances where safety was at stake the workman was bound to do so in a condition of sobriety.

At advising—