Scottish Court of Session Decisions

Mrs Agnes Turner or Fraser, widow, 80 South Portland Street, Glasgow, for her own interest and also as tutor for her pupil children, appellant, claimed compensation under the Workmen's Compensation Act 1906 (6 Edw. VIII, cap. 58) from John Riddell & Company, contractors, Bishopbriggs, respondents, in respect of the death of her husband James Fraser, engine-driver there, who was fatally injured while in the service of the respondents. The Sheriff-Substitute (MACDONALD) refused compensation, and at the claimant's request stated a Case for appeal.

The facts were as follows—“1. On 26th March 1913 the deceased James Fraser was a traction engine-driver in the employment of the respondents John Riddell & Company. 2. About 11·30 p.m. on said date, while driving a traction engine belonging to the respondents in Bilsland Drive, Mary-hill, Glasgow, he fell off the footplate on to the roadway. 3. One of the wheels of a waggon attached to the engine passed over him. 4. As the result of the injuries he received he died on the following day. 5. When he commenced his duties on the said date, and when he was last seen prior to the said accident by any person in authority over him in his employment, he was sober. 6. At the time of the said accident he was under the influence of drink and was unfit for his work. 7. The appellants were dependent upon him at the time of his death.”

The Sheriff-Substitute further stated—“Apart from his intoxicated condition, there was nothing proved which would account for the deceased's fall off the engine, and I drew the inference that it was due to his intoxicated condition. I held that while the said accident arose in the course of, it did not arise out of the deceased's employment, and I found that the respondents were not liable to pay compensation to the appellants.”

The question of law was—“Whether upon the evidence I could competently 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?”

Argued for appellant— Esto that the deceased was drunk at the time of the accident, that was not enough to deprive the appellant of compensation. To exclude it the deceased must at the time have been doing something entirely without the ambit of his employment, and thereby exposing himself to an “added peril,” i.e., to a risk not involved in or incidental to his contract of service— Barnes v. Nunnery Colliery Company, Limited, [1912] AC 44; Watkins v. Guest, Keen, & Nettlefolds, (1912) 5 B.C.C 307; Revie v. Cumming, 1911 S.C. 1032, 48 S.L.R. 831. There was no exposure here on the part of the deceased to any risk not incidental to his employment, and unless that were so the defence of serious and wilful misconduct was irrelevant where, as here, death had resulted from the accident—Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 1 (2) (c); Mawdsley v. West Leigh Colliery Company, Limited, (1911) 5 B.C.C. 80; Harding v. The Brynddu Colliery Company, Limited, [1911] 2 KB 747; Conway v. Pumpherston Oil Company, Limited, 1911 S.C. 660, 48 S.L.R. 632; M'Lauchlan v. Anderson, 1911 S.C. 529, 48 S.L.R. 349. The cause of death was the fall, which might have been due to a stumble. There was no finding that it was due to intoxication, though the arbiter had drawn the inference that it was so. Esto that the appellant must prove that the accident arose out of the employment— O'Brien v. The Star Line, Limited, 1908 S.C. 1258, 45 S.L.R. 935—she had done so here, for what the Court had to look to was the “proximate cause” of the death, viz., the fall from the footplate— Wicks v. Dowell & Company, Limited, [1905] 2 KB 225. The case of Frith v. S.S. “ Louisianian,” [1912] 2 KB 155, was distinguishable, for there the deceased was so drunk as to be totally incapable. He never got back to his employment at all.

Argued for respondents—The question whether an accident had arisen “out of” the employment was one of fact on which the arbiter was final, unless he had misdirected himself in law or drawn an unreasonable inference from the facts. There was here no evidence of the cause of death apart from intoxication, and that being so the arbiter was entitled to find as he did.

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The finding that the deceased was unfit for his work was equivalent to a finding that he had exposed himself to an “added peril.” He was therefore clearly outside the Act— Barnes ( cit.). The arbiter was not entitled to assume that the accident had arisen out of the deceased's employment; it was for the appellant to prove that it had— O'Brien ( cit.), Pomfret v. Lancashire and Yorkshire Railway, [1903] 2 K.R. 718, per Collins, M.B., at p. 721; Mackinnon v. Miller, 1909 S.C. 373, per the Lord President at p. 379, 46 S.L.R. 299; Barnabas v. Bersham Colliery Company, 1910, 48 S.L.R. 727. The appellant had failed to discharge the onus, for the fall might have been due to skylarking, or to the wrongful act of a fellow-servant, and if that were so the respondents were not liable in compensation— Armitage v. Lancashire and Yorkshire Railway, [1902] 2 KB 178; Fitzgerald v. Clarke & Son, [1908] 2 KB 796; Macintyre v. Rodger & Company, December 1, 1903, 6 F. 176, per the Lord Justice-Clerk at p. 178, 41 S.L.R. 107; Burley v. Baird & Company, Limited, 1908 S.C. 545, 45 S.L.R. 416.