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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Percy v. Donaldson Brothers [1908] ScotLR 199 (27 November 1908) URL: http://www.bailii.org/scot/cases/ScotCS/1908/46SLR0199.html Cite as: [1908] ScotLR 199, [1908] SLR 199 |
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Page: 199↓
[Sheriff Court at Glasgow.
A workman was employed as a casual labourer, paid by the hour, upon a ship in dock, his work ending at 6 p.m. Shortly after that hour, while proceeding along the quay to receive his wages at his employers' pay-box, which was situated about fifty yards from the ship, and off the employers' premises, he was injured by the fall of a stanchion owing to the alleged negligence of the employers' servants on board the ship. The employers pleaded common employment to an action for damages.
Held that the relation of master and servant terminated when the workman finished his work and left the employers' premises, that it was not prolonged until the wages were paid, and proof allowed.
David Percy, labourer, Kinning Park, Glasgow, raised an action in the Sheriff Court at Glasgow against Donaldson Brothers, steamship owners, 58 Bothwell Street, Glasgow, for £250 damages for personal injuries caused by the alleged negligence of the defenders' servants.
The pursuer averred—“(Cond. 2) On or about 13th August 1907 the s.s. ‘Almora,' of which the defenders are the owners and managers, was berthed at Princes Dock, Glasgow Harbour, and the defenders’ servants, for whom defenders are responsible, were engaged removing the wooden superstructure from the upper decks of said ship. Pursuer had occasion on said date, about 6˙10 p.m., to proceed along the breast of the quay adjacent to the said s.s. ‘Almora,' and while proceeding in an easterly direction a heavy stanchion was negligently allowed by defenders’ servants to fall from the deck of said ship, striking the pursuer upon the right foot, and severely injuring the great toe of said foot. Denied that pursuer at the time of said accident was in the defenders’ employment.… Admitted that pursuer was employed on said date by defenders as a casual labourer engaged and paid by the hour, that at the time of said accident he was proceeding to the pay-box on the quay, about fifty yards from said ship, for his wages. Explained that at the time of the occurrence of the accident to him he had ceased doing any work for defenders, and i that the relationship of master and servant did not then exist between pursuer and de—| fenders, and had ceased to do so at 6 p.m. on that date.”
The defenders pleaded, inter alia—“2. Common employment.”
On 15th February 1908 the Sheriff-Substitute ( Balfour) sustained the second plea—in-law for the defenders, and assoilzied them.
Page: 200↓
The pursuer appealed, and argued—There was no common employment at the time of the accident. The doctrine required that servants should be at work at the same place and time— Charles v. Taylor, (1878) L. R., 3 C.P.D. 492. The pursuer was no longer upon the employers' premises as in Todd v. Caledonian Railway Company, June 29, 1899, 1 F. 1047, 36 S.L.R. 784; nor was the employer concerned with the pursuer's journey home— Brydon v. Stewart, March 13, 1855, 2 Macq 30. Common employment did not exist before the day's work began — Conlon v. Corporation of Glasgow, May 27, 1899, 1 F. 869, 36 S.L.R. 652—nor, therefore, after it had ended. At the time of the accident the pursuer had no remaining duty to his employers; the sole relation between them was that of creditor and debtor. The relationship of master and servant ended as soon as the pursuer finished his work and left the ship— Caton v. Summerlee and Mossend Iron and Steel Company, Limited, July, 11, 1902, 4 F. 989, 39 S.L.R. 762.
Argued for respondents—A workman was in his employment eundo, morando, redeundo— Brydon v. Stewart ( cit. supra), per Cranworth, L.C., at p. 36; Todd v. Caledonian Railway Company ( cit. supra); Sharp v. Johnston & Company, Limited [1905], 2 K.B. 139. The pursuer had not gone outside the employment by taking an improper route as in Haley v. United Collieries, Limited, 1907 S.C. 214, 44 S.L.R. 193. Employment covered any ancillary purpose of the employment — Blovelt v. Sawyer, [1904] 1 KB 271, per Collins, M.R., at p. 273. The receipt of wages was an incident within the employment— Cowler v. Moresby Coal Company, Limited [1885], 1 T.L.R. 575—and it was immaterial that in this instance the pay-box was not in the respondents' premises. The risk which the pursuer continued to incur while still beside his fellow—workers was a necessary and reasonable incident of the situation he had voluntarily accepted — Burr v. Theatre Royal, Drury Lane, Limited, [1907], 1 K. B. 544, per Collins, M. R., at p. 554.
At advising—
In these alleged circumstances, which must of course be taken pro veritate in a question of relevancy, the pursuer maintains that if the stanchion fell upon him through the negligence of the defenders' servants, they are liable to his suit for damages in respect of the injuries he suffered.
The Sheriff-Substitute has held on the facts averred and admitted by the pursuer that “when the accident occurred the relation of master and servant between the pursuer and defenders had not ended for the day.”
I am unable to agree with this opinion. As I read the pursuer's averments they mean that from the moment when the pursuer having ceased work and left the ship there was no longer any right in the master to the pursuer's services, nor any right in the pursuer to maintain that he was in the master's service, and entitled to the rights of a servant until he either resigned or was legally discharged from the service. The master had no longer any right to call upon him to do any work, and the pursuer had no right to demand to do work for wages, and to ask damages if he was not allowed to work, and therefore not allowed to earn wages under his engagement. Had the master when work was over at 6 o'clock, and the pursuer had gone on to the quay on the way from his work, ordered the pursuer to do something, can it be said that the pursuer would have been in breach of a contract of service had he declined and gone his way. I do not think it is possible so to hold. He was not on the master's premises or in the ship in which he had engaged to work. He was on the quay of the Clyde Trust. The time during which he had engaged to work had expired, and he was a free man to do what he pleased with his person and his time. He could have said on the spot, as he says on record, that “the relationship of master and servant did not then exist between the pursuer and the defenders.” If at the place at which the stanchion fell on him someone had come up and offered him work, he would have been quite free to take it on the spot. He would not by doing so have been breaking any contract of service then existing. He owed no obedience, and the defenders had no right to exact any obedience from him.
Unless, therefore, there are some exceptional circumstances to be gathered from the pursuer's averments which may give the general circumstances a different complexion, I can see no ground for holding that the pursuer must be considered to have been a servant of the defenders, and therefore liable to the exception at common law, that the accident having been caused by a fellow workman, for that cause he can have no relevant case against the master. Several cases were referred to, but with one exception they do not appear to me to touch the present case. In the case of Bryden v. Stewart the injured man was in course of being carried in the mine cage to the surface of a coal pit when he met with his injury. And a similar case was that of Burr v. Theatre Royal, Drury Lane, where a chorus girl, still in the theatre, was injured while leaving the stage after the performance. Ido not see how in these cases any other decision could have been arrived
Page: 201↓
There was only one other case referred to by the defenders' counsel, and it is a case peculiar in its circumstances. A miner was discharged at a time when it was not possible for him to go down the pit to bring up the tools, which it was part of his contract of service that he should give in at a certain place before leaving the service. To fulfil this obligation he returned on a subsequent day and went down the shaft to get the articles he was bound to return before leaving. It was held that in doing this he was in the course of his employment. It was obvious that he was so, for what he was engaged upon at the time of the accident was something which he must do in order to be free to maintain that the duties he had undertaken were performed and finished. I am unable to see how that case can affect the decision here, where (1) there was nothing to be done of the nature of service, and (2) the pursuer was not in a place over which the defenders had any rights as employers of labour.
But it is maintained that it being admitted by the pursuers that the defenders had a pay-box at which wages were paid on the quay and that he was going to that pay-box, that fact is sufficient to justify its being held, as the Sheriff-Substitute does, that “the relation of master and servant between the pursuer and the defenders had not ended for that day, as the defenders had the duty of paying his wages to fulfil towards the pursuer.” This seems to me to be based on a mistaken idea, the word duty being used in a sense not applicable to a question of subsisting contract of service. Carried out to its limit, it would mean that no contract of employment can come to an end until the reward for the services rendered has been paid. That of course could not be maintained. If a servant was still in an employment until he had got his wages, it would lead to most anomalous results. Can the fact that there was a pay —box near at hand make any difference? I cannot think so. If the place for pay had been at an office some distance away, would not the law be the same ? The law cannot vary according to the distance of the pay place from the place of work. The true question is, Can two persons be in the relation of employer and employed when the one has ceased to have any right to exact services and the other has no duty to render services? I cannot hold that the character of servant can adhere to a man merely because he has a claim for payment for past services. A master can cause a servant to cease to be his servant by dismissing him, and he cannot insist on remaining in the service until he is paid. So much so that if he is dismissed and the master refuses his wages because of alleged fault, he is bound to endeavour to get other employment, and can only insist (if fault cannot be proved against him) for past —due wages and damages to the extent to which he has been unable to get immediate or as lucrative employment. Whenever the servant is dismissed or the time for which his
Page: 202↓
On these grounds I would have your Lord—ships to recal the interlocutor under review, and to remit back to the Sheriff Court for probation.
The Court recalled the interlocutor of the Sheriff-Substitute, and remitted to him to proceed as accords and to allow a proof.
Counsel for Pursuer (Appellant)— Blackburn, K.C. — J. A. Christie. Agent— E. Rolland M‘Nab, S.S.C.
Counsel for Defenders (Respondents)— Wilson, K.C. — Hon. William Watson. Agents— Macpherson & Mackay, S.S.C.