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Cite as: 57 ScotLR 491, [1920] UKHL 491

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SCOTTISH_SLR_House_of_Lords

Page: 491↓

House of Lords.

Tuesday, June 22. 1920.

(Before Viscount Haldane, Viscount Finlay, Viscount Cave, Lord Dunedin, and Lord Shaw.)

57 SLR 491

William Baird & Company, Limited

v.

M'Graw.

(In the Court of Session, November 27, 1919, 57 S.L.R. 114.)

Subject_Master and Servant — Workmen's Compensation — “Arising out of and in the Course of the Employment” — Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 1 (1).
Facts:

A boy, a coal picker, went one day to the pit, not for the purpose of working, but to recover his wages for work previously done. He acted as he had previously done, and while waiting at a place where the workers were accustomed to go, for the man from whom he would get his pay slip, he received injury by accident. Held (sus. decision of the First Division) that on the facts stated the injury was “arising out of and in the course of the employment.”

Headnote:

This case is reported ante ut supra.

The employers, William Baird & Company, Limited (appellants in the Court below), appealed to the House of Lords.

At delivering judgment—

Judgment:

Viscount Haldane—Authorities have been cited in support of the appellants' case tending to show that in circumstances presenting analogies to those before your Lordships the tribunals have held that the claim was not in respect of anything which in those particular cases arose out of and in the course of the employment. I should be loth, so far as 1 am concerned, to make the decision of this case turn upon a meticulous comparison with the circumstances in other cases. I think the purpose of the statute was that we should look at the facts in each case broadly, apply certain principles, and attach great weight, so far as mere facts are concerned, to the view of them taken by the arbitrator, or the County Court Judge, as the case may be, and if there had been an approving judgment of the Court below, be predisposed to take the same view of the facts as that judgment did. But it is not necessary in this case to go into the question, because when we turn to the facts themselves in the appeal they lie in short compass and are fairly plain.

In March 1919 the respondent, a boy called M'Graw, 16 years of age, was a coal picker at the Mossblown Pit of the appellants. The coal-picking tables are tables on to which coals from the pit are dropped as they are

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brought to the surface, and as they are carried along the table the coal pickers stand on each side of the table and pick out the stones and the grit. Then the coals are dropped automatically into a shute at the lower end of the table and slide into a railway waggon, and the waggon, which is looked after by another boy called a “trigger,” is spragged by means of a piece of wood put on the rails in front of the wheel of the waggon, and when the waggon is full the boy who is called the trigger withdraws the piece of wood, and then the waggon goes on down to the line of the railway company, where its contents are carried away. Beside that line of rails there is another line of rails—in this case the second line of rails was called the Diamond Road—which runs just by the other, and on the Diamond Road on wet and showery days it has been the custom to keep a fire burning, not in the 6-foot way but between the rails, in order to dry the pieces of wood which are used for spragging the waggons. The triggers and the coal pickers used to go round the fire in cold weather and eat their food during the short time they had off for refreshment, and there appears to have been a log which was very convenient for sitting on when doing so. There were sometimes, apparently, waggons on the rails just behind, but those waggons were themselves spragged, and under ordinary circumstances could not move, so that the boys were safe in sitting there.

Now what happened was this—Friday, the 7th of March 1919, was a wet day, and the respondent overslept himself and was late for work and did not intend to go to work, but we have no finding of what would have been the consequence of that. Possibly they were easy going in their views on these things at the pit, as they often are nowadays. Anyhow he had to get his pay for the work which he had already done on previous days, and to that end he appears to have gone to the colliery. The usual practice is to pay at about one o'clock in the afternoon to the pit-head gaffer, who distributes the money, or rather distributes the lines, which they take to the office and on which they get paid; but as the coal pickers—the boys who pick the coals—are numerous, there was a man called Trousdale, who looked after them, to whom it was the custom of the gaffer Shannon to hand over the lines for distribution among the boys. The respondent knew that Shannon distributed the pay lines in this way, and he knew that he would not get his pay line from Trousdale because he had not been at work under him that day, so he did what had been done before on days when boys were not working—he went to the colliery, looked for Shannon himself—not for Trousdale—hoping to get his pay line from him, and then to go to the office and get his pay just as he seems to have done at any rate on one occasion before. On the 7th of March, the day I have referred to, the respondent went into the colliery by the usual way and arrived at the fire which was burning between the rails in the Diamond Road, and there he sat down to warm himself at the fire because it was not yet 1·30 p.m. After sitting about a quarter of an hour or more at the fire, it then being about 1·30 p.m., the respondent went to look for Shannon; he went up the stair to the pithead and to the weigh-box there and asked Riddox, the weighman, if Shannon was there. Riddox said he was not, but that he might be at the saw mill. The respondent then went to the saw mill but did not find Shannon there. These are the facts as found by the Sheriff-Substitute—“The respondent then went back to the fire on the Diamond Road and asked Hamilton, the trigger, if he had seen Shannon. Hamilton answered ‘No.’ The respondent then asked Hamilton if he had got his pay line. Hamilton replied that he had not. The respondent then told Hamilton that he had slept in and had come to the colliery for his pay and that he was looking for Shannon in order to get his pay line. Hamilton said that he expected Shannon to be round immediately with his (Hamilton's) pay line. The respondent thereupon sat down on the block by the fire to await the coming of Shannon,” in accordance with what had succeeded upon the previous occasion to which I have referred. While he was sitting there a waggon, through the carelessness of some workmen, was detached, and came down on the waggon which was behind him on the Diamond Road, knocked it over the wood which had spragged it, and brought it upon the respondent, who was thrown off the log, tumbled over, with the result that one of the wheels went over his leg. The question is whether he is entitled to compensation for that injury. The Sheriff-Substitute found that in law and in fact he was so entitled, and he made a note to the effect that in his view “the pursuer was injured by accident arising out of and in the course of his employment,” in that “in order to get his pay he had to go to the colliery, and before getting his pay at the office he had to receive his pay line from Shannon. When looking for Shannon about the pithead at 1·30 p.m. he was acting in the only way he knew of and in the way he and others were accustomed to act. When he was told by Hamilton that Shannon would be round immediately, it was quite reasonable for pursuer to await his coming, and he was entitled to assume that the seat by the fire was a perfectly safe place for him at which to wait.”

In the Inner House the First Division took the same view as the Sheriff-Substitute of the law applying to the facts so found, and the question is, were they right? It is said treating the matter as one of principle, that the accident did not arise out of and in the course of the employment—not in the course of the employment, because it is obvious that the boy was not actually working at the time; not out of the employment, because he came there for his own purpose and not for the purpose of his employment. That is the argument. It appears to me that it was a right arising out of the employment of the boy to go and get paid in the usual and proper manner for the work he had done. It was in the course of so

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going to get paid that he visited the works upon the Friday. Quite true, he did not go there to work, and probably did not expect to work, but he was still so far as appears one of the workmen of the appellants, and he came there, as was his right, to be paid for work done. In these circumstances I think that what he did was something which arose out of his employment, and if not in the course of his employment to the extent of being a piece of work actually done, it was in the course of his employment in so far as he came there under the terms which subsisted between him and his employer to get paid for the work he had done. That being so, and accepting as we do and must the finding of the Sheriff-Substitute on the facts I find myself in agreement with his view of the law, and further, with the reasons which were given for supporting that view by the learned Judges in the Inner House.

I therefore think that the appeal fails, and I move your Lordships that it be dismissed with costs.

Viscount Finlay—I am of the same opinion. The accident to this lad happened when he had gone to the works for the purpose of getting payment of the wages due to him. Payment of the wages is, of course, a thing in which both the workman and the employer are interested. The workman must get his wages for his own benefit and for his maintenance. On the other hand, the employer being under a liability to pay, it is a great convenience to him that the men should come in the established way for the purpose of getting their pay so that the liability of the employer to them may be cleared up at once and in the manner which is common.

In this case the payment was made habitually on a Friday. It was made in respect of the work that had been done during the week previous—that is to say, the week up to and including the Thursday, the day before the Friday. Payment was made in the manner which is described in the appellants' case in a short passage—“Pay is made to the surface workers at the colliery in the following manner:—Pay lines are made out at the office and given in the office about 1 p.m. to the pithead gaffer, J. Shannon. The night-shift workers assemble at the office door from 1 to 1·15 p.m., and to them Shannon hands their pay lines. He then goes round the pithead and distributes the pay lines to the employees at work. He gives the pay lines for the coal pickers to Robert Trousdale, the man who looks after the boys”—the lad injured in this case was one of the coal pickers—“if any coal picker is not at work Trousdale hands back that boy's pay line to Shannon. The pay lines are cashed at the office by the employees after they get them.” On the morning of the Friday, M'Graw, the lad whose injury forms the subject of this claim, would have gone to work in the ordinary way, and got payment in the course of the day in the manner described in the passage I have just read, but he overslept himself in the morning and did not go to work on that day, but in the middle of the day, just after one o'clock, he went there for the purpose, and as I take it on the statement of facts for the sole purpose, of getting his wages, and not for the purpose of doing any work at all. But I think that to go to get his wages was in the course of his employment. The getting of the wages on the Friday if he had been at work on that day—wages for the work which had ended on Thursday—would have been no part of the actual work which he was doing on the Friday. It is an incident of the work, and the Act extends to the ordinary incidents of work as well as to the actual doing of the work itself. He had gone to get his wages, and in so going I think he was in the course of his employment. He had to find Shannon in order to get his pay lines, and while he was waiting for Shannon he sat down near a fire in a manner which was not unusual among the men, and while there the accident occurred in the manner which has been described in the evidence.

It appears to me that in this case the conclusion in point of law arrived at by the arbitrator in the first instance, and afterwards by the Court, was perfectly right. The boy was there on business which was part of his employment, for discharging the liability for wages is a thing that must be attended to, and he did it in the ordinary way after he had overslept himself so that he was no longer at work on that day. I assume in favour of the appellants that he was there solely for the purpose of getting his wages, but I think that was in the course of his employment, and that this injury arose not only in the course of his employment but out of his employment.

Viscount Cave—This case may appear to be somewhat near the line, but upon the whole I have come to the conclusion that there was evidence, the effect of which has been stated by the noble and learned Lord on the Woolsack, on which the Sheriff-Substitute could find that the accident arose out of and in the course of the employment. In effect the finding is this, that the accident arose out of the employment because it was incidental to the employment that the workman should go and get his pay, and that it arose in the course of the employment because the workman, who had not been discharged, was engaged in getting his pay on the day and at the hour fixed for payment, and in the only way known to him in which he could get payment. I cannot say that the finding based upon these facts is wrong in law, and therefore I do not think that it ought to be disturbed.

Lord Dunedin—I concur. The case depends on the answer given to the question—Was the boy when the accident occurred doing something incidental to his employment? I think it was incidental to his employment to get his wages, for which purpose he had to get a document called a pay line. He proceeded to get this pay line in a proper way. That was found as a fact by the learned arbitrator, and I think there was evidence on which he could so find. That ends the case.

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Lord Shaw—I concur with Lord Dunedin.

Their Lordships dismissed the appeal with expenses.

Counsel:

Counsel for the Appellants—Lord Advocate ( Morison, K.C.)— Fenton. Agents— James M. Inglis, Kilmarnock— Simpson & Marwick, W.S., Edinburgh— Deacon & Company, London.

Counsel for the Respondent— Moncrieff, K.C.— Patrick—R. C. Henderson. Agents— M'Millan & Howie, Ayr— Macpherson & Mackay, W.S., Edinburgh— John Kennedy, Westminster.
1920