Scottish Court of Session Decisions

This was an appeal in an arbitration under the Workmen's Compensation Act 1897 before the Sheriff-Substitute at Paisley ( Lyell) between Fullerton, Hodgart, & Barclay, engineers, Paisley, appellants, and Thomas Logue, Cashilinny, Donegal, claimant and respondent.

The facts stated by the Sheriff-Substitute were as follows—“On the 16th of November 1900 the deceased Thomas Logue junior was and had been for about a fortnight a labourer in the employment of the appellants at their foundry and engine works in Paisley. On the evening of the 15th of November he had received instructions from a fellow-labourer, who had authority to issue such instructions, to be at the works at four o'clock on the following morning for the purpose of filling scrap-iron into the barrows. This was not an unusually early hour for the performance of the work of so filling scrap-iron, which work may be done either with the naked hands, or by means of shovels, or with the hands covered with shields called hand-leathers. The deceased accordingly went to his work as ordered, and was heard asking first whether the scrap was too hot to be handled with hand-leathers, and second, where hand-leathers were to be obtained. In answer to this latter question, one of a group of his fellow-workmen replied, ‘In the store,’ but could not say whether the deceased heard. It was proved that these hand-leathers are kept in the store, and that there is also a supply of them on the furnace platform for the use of the furnace—men. The store is not open fill 6 o'clock a.m., but up to that time the key is in the possession of the night watchman. It was not proved that the deceased knew or had means of knowing this latter fact. The furnace platform referred to is a considerable height above the floor of the moulding shop, and can be reached either by a fixed iron ladder or by means of a hydraulic hoist which may be set in motion either from the level of the floor or from the furnace platform. About 4·30 a.m., and shortly after the deceased was heard asking where hand-leathers were to be obtained, he was discovered standing on the hoist, in which he had obviously ascended from the floor, with his neck jammed between the beam of the hoist and the girder of a new furnace platform then in course of erection, and he was brought down dead. On a wall close to the hoist a notice was displayed bearing the inscription ‘No allowance for any man to go up upon hoist.’ It was also proved that shortly before the accident the hoist had become specially dangerous on account of the fact that its beam had been lowered some two feet in order to allow of the floor of the hoist being brought up to a level with the old furnace platform. The previous height of the beam of the hoist from its floor had been about six feet, but as the girder of the new furnace platform was only about four feet above the old furnace platform the beam of the hoist had been lowered. The result was, that if a man was standing erect upon the hoist he would be in danger of being crushed between the girder and the beam before the floor of the hoist reached the level of the old furnace platform. Strict injunctions had been given to the foremen to warn the men not to use the hoist, and the notice above referred to had been repainted. On the other hand, as I have said, the deceased had been only a fortnight in the employment at the time of the accident, although he had worked there on previous occasions when the hoist was comparatively safe. There was no proof that his attention had been specially directed to the changed condition of the thing, and the hoist, before and after the lowering of the beam, was regularly used by workmen whose business took them up to the old furnace platform. Some of the men never knew of the existence of the warning notice, some had never read it, and of those even who had read it, all used the hoist in spite of it. It was proved to my satisfaction that when the deceased thus attempted to ascend by the hoist to the furnace platform he was in quest of hand-leathers for the purpose of equipping himself to go on with his allotted task of filling scrap. I was therefore of opinion that, although he may have disobeyed orders in taking the easier way of ascending to the platform, and may have been negligent and even reckless in so doing, his endeavour to reach it was in pursuance of his proper work.”

Upon these facts the Sheriff-Substitute held that the “fatal accident arose out of and in the course of the deceased's employment, and that the fatal injury he sustained was not attributable to his own serious and wilful misconduct,” and awarded the respondent compensation.

The questions of law for the opinion of the Court were—“(1) Was the fatal injury to the deceased caused by an accident arising out of and in the course of his employment within the meaning of section 1 (1) of the Workmen's Compensation Act 1897? (2) Was the Sheriff-Substitute right in holding that the fatal injury was not attributable to the serious and wilful misconduct of the deceased in the sense of section 1 (2) ( c) of the said Act?”

Argued for the appellants—(1) The facts found by the Sheriff were not sufficient to show that the deceased was in the course of his employment. If a workman did a risky and unnecessary act while in search of tools he was not in the course of his employment— Callaghan v. Maxwell, January 23, 1900, 2 F. 420; Gibson v. Wilson, March 12, 1901, 38 S.L.R. 450; Lowe v. Pearson (1899) 1 QB 261. (2) In any view, the deceased was guilty of “serious and wilful misconduct” in disregarding the notice forbidding workmen to use the hoist. The

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Sheriff had not found as a fact that he was unaware of it, and it must be presumed that he was aware of what was one of the ordinary conditions of his employment. The Court should reverse the Sheriff's judgment if upon the facts stated he had come to an erroneous conclusion in law— Guthrie v. Boase Spinning Company, March 20, 1901, 38 S.L.R. 483; Dailly v. Watson, Limited, June 19, 1900, 2 F. 1044.

Argued for the respondent—(1) It was not disputable that the deceased was in the course of his employment. He had come to the works at the hour appointed by one who had authority to give the order, and was seeking for the means to begin his work. (2) The mere breach of a rule was not serious and wilful misconduct— M'Nicol v. Spiers, Gibb, & Co. February 24, 1899, 1 F. 604; Rumball v. Nunnery Colliery Co. 80 L.T. (N.S.) 42. To establish that defence it must be shown that the workman knew of the rule, and that the danger was obvious. Here the Sheriff had not found that the deceased knew of the rule, which was habitually diregarded by the deceased's fellow-workmen. A workman might adopt a wrong and dangerous way of doing his work, but that did not amount to serious and wilful misconduct— Durham v. Brown Brothers, December 13, 1898, 1 F. 279; Douglas v. United Mineral Mining Company (1900) 2 Minton-Senhouse's Compensation Cases, 15.