United Kingdom House of Lords Decisions

Lord Chancellor (Loreburn)—The question here is whether the Court of Appeal and the learned County Court Judge were wrong when they said that there was no injury by accident arising out of and in the course of this man's employment. He was going to his work, and used some steps on his employers' land, by his employers' permission, as a short-cut to his work and he fell on the steps. He was then three-quarters of a mile from the place where the works were situated. The County Court Judge was quite entitled to find as he did. I think that he could not have found otherwise. In applying this Act one has to look at the words of the Act itself and see if the injury by the accident falls within the words of it. Did it arise out of the employment, and did it arise in the course of the employment? Other cases are only useful as illustrations of the way in which these words are applied, and I think that nothing is more fruitless than to attempt to argue by analogy from one set of facts to another set of facts. In my opinion there was no evidence in this case which would have justified the County Court Judge in finding that this accident arose in the course of the employment. The man was merely going to his employment and was not employed to be on the steps. I also think that there was no evidence which would have justified a finding that it arose out of the employment. The passage cited from an opinion which I expressed in a previous case in this House has really no bearing on the present case, because it related to the facts of that case, and it is not unimportant to bear in mind the old maxim that what is said in the course of a judgment is said secundum subjectam materiam, unless indeed it is intended expressly to lay down a general principle of law.

Lord Atkinson—I agree.

Lord Shaw—In this case there was a circuitous public road, and there was a short-cut from one part of that public road to another. It was optional to the workman to take the short-cut or not to take it. Only when the point was reached where the short-cut was at an end, and the workman had gone either by it or by the circuitous public road, and not till then, did he become in the course of his employment. There was no contract or obligation direct or indirect on his part that he should use the short-cut or the steps conveniently provided there. He might reach the place of his employment in any manner he liked. It was not arising out of his employment, and not in the course of his employment, that he met with this accident. I fear to make any general proposition in these cases when I see the use which is made by ingenious and able counsel of propositions laid down in this or in some other court. I would venture, however, to say one thing, which is, that analogies in matters of fact nearly always fail, and I think that it is a dangerous thing in the sphere of law to conjure out of analogies a principle or proposition arising from judicial dicta which are in any respect in conflict, or to be cited as in conflict, with the clear propositions and text of a modern statute.

Lord Robson—I think that it is scarcely contended seriously in this case that the accident arose out of the employment, and certainly it did not arise in the course of the employment. But the appellant attempted to found an argument upon this, that there have been cases in which accidents have been held to have occurred in the course of the employment when they occurred at some point or other or in some circumstances which came within the contract of employment. Now, without saying whether or not it is a sound general principle that accidents which occur at some place which comes within, or in the exercise of some privilege which comes within, the contract of employment arise in the course of the employment, it is sufficient to point out here that the right to use this particular pathway was no part of the contract of employment. It was a licence given by the employers to the men who were coming to their work, but they cannot be said to have contracted that they would always give that licence. It was revocable at any moment and without reference to the conditions of any contract.