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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bett and Others v. Hughes [1914] ScotLR 93 (18 November 1914) URL: http://www.bailii.org/scot/cases/ScotCS/1914/52SLR0093.html Cite as: [1914] ScotLR 93, [1914] SLR 93 |
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Page: 93↓
It was part of a coachman's duty to call, when required by his mistress, at the post office some miles distant for letters. This he might have to do every day if his mistress were at home, and perhaps not at all for a fortnight if she happened to be from home. The road was little frequented and he was accustomed with the knowledge of his employer to use his bicycle for the purpose. He was injured through a man lurching against and upsetting his bicycle. Held ( dub. Lord Johnston) that the accident arose “out of” his employment in the sense of sec. 1 (1) of the Workmen's Compensation Act 1906.
Opinion per the Lord President that the frequency or infrequency with which a risk arising “out of” an employment occurs is immaterial.
The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 1 (1) enacts—“If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the First Schedule to this Act.”
In an arbitration under the Workmen's Compensation Act 1906 in the Sheriff Court at Kinross, between Charles Hughes, coachman, Milnathort, respondent, and Alexander Easson Bett (now deceased) and others, appellants,—the Sheriff-Substitute ( Dean Leslie) awarded the respondent compensaation, and at the request of the appellants stated a Case for appeal.
The Case gave the following facts:—“The respondent about five years ago entered the service of the deceased Alexander Easson Bett, who was a carriage hirer, as coachman. For four years he acted as a driver of a carriage and pair of horses hired from the said deceased Alexander Easson Bett by Mrs Purvis Russell at Warroch, Milnathort. He was instructed by Alexander Easson Bett to do anything he was asked and to be obliging. His duties were those of a private coachman and included calling at Milnathort Post Office for letters when so required by Mrs Purvis Russell. When Mrs Russell was from home he might not for a fortnight at a time be sent to the post office. At other times he might have to go every evening. He had also to deliver letters elsewhere. He received orders at the house through one of the maids when it was necessary for him to go. When he did go for letters he generally used his own bicycle. Both the deceased Alexander Easson Bett and Mrs Purvis Russell knew that he used his bicycle for the purpose. On the evening of 11th October 1913, when returning to Warroch from the post office with letters, he passed three people on the road in Milnathort. Of these three one man lurched against him and knocked him over. The fall resulted in fracture of his right knee-cap. He has been since and is now totally incapacitated for work. His. average weekly wage amounted to 32s. It was admitted for the appellants that the accident arose in the course of the respondent's employment.”
The Case further stated—“ I found in law that the respondent was injured by accident arising ‘out of and in the course of his employment’ with the said deceased Alexander Easson Bett within the meaning of the Act, and found the appellants as sisted liable to the respondent in compensation at the rate of 16s. per week as from the 18th day of October 1913.”
The question of law for the opinion of the Court is—“Whether there was evidence upon which it could competently be found that the personal injuries sustained by the respondent were the result of an accident arising ‘out of’ his employment within the meaning of the Workmen's Compensation Act 1906?”
Argued for the appellants—The respondent's employment was not such as to expose him exceptionally to the danger which caused the accident. The accident might have befallen any member of the public. In this respect the case was distinguishable from M'Neice v. Singer Sewing Machine Company, Limited, 1911 S.C. 12, 48 S.L.R. 15, and Pierce v. Provident Clothing and Supply Company, Limited, [1911] 1 KB 997, where the employment involved a continual passing to and fro in a crowded street. The case of Greene v. Shaw, [1912] 2 Ir. Rep. 430 (Lord Chancellor at 437, Cherry, L.J., at 438) formed an exact parallel. Similar decisions were given in Blakey v. Robson, Eckford, & Compnny, Limited, 1912 S.C. 334, 49 S.L.R. 254;
Page: 94↓
Rodger and Others v. Paisley School Board, 1912 S.C. 584, 49 S.L.R. 413; Plumb v. Cobden Flour Mills, Company, Limited, [1914] AC 62; Sheldon v. Needham, [1914] 30 T.L.R. 590. The meaning of “incidental to the employment” was construed in a sense favourable to the appellants in M'Neice v. Singer Serving Machine Company, Limited ( cit. sup.), Lord President at p. 13; Plumb v. Cobden Flour Mills Company, Limited ( cit. sup.), Lord Dunedin at p. 68; Pierce v. Provident Clothing and Supply Company, Limited ( cit. sup.), Cozens Hardy, M.R., at p. 999. The terms “out of” and “in the course of” were to be used disjunctively— Fitzgerald v. W. G. Clarke & Son, [1908] 2 KB 796, Buckley, L. J., at 799. Argued for the respondent—The cases of M'Neice v. Singer Serving Machine Company, Limited ( cit. sup.) and Pierce v. Provident Clothing and Supply Company, Limited ( cit. sup.) were exactly in point and should be followed. The question whether an accident arose “out of” an employment was mainly one of degree and of circumstances, and therefore one of fact. The Court should therefore be slow to interfere with an arbiter's decision— Board of Management of Trim Joint District School v. Kelly, [1914] AC 667, Lord Haldane, L.C., at 674, Lord Shaw at 710. Here the workman was clearly executing part of his duty, and his duty must be regarded as a whole. In his duty a special risk was involved, and it was immaterial whether it was one that ordinarily occurred in it or not— Board of Management of Trim Joint District School v. Kelly ( cit. sup.), Lord Loreburn at 682. In Greene v. Shaw ( cit. sup.) the workman's main duty lay in one held, and it was only incidentally that he passed from one field to another.
At advising—
It is admitted that the accident arose in the course of the respondent's employment. The arbiter has further found that it arose out of his employment. The question we have to decide is whether the facts found proved entitle the arbiter to come to that conclusion. I think they do, and I cannot express my reason for so thinking in better language than was employed by Lord Kinnear in the case of M'Neice v. Singer Sewing Machine Company, Limited, where he says—“According to the statement the man had certainly in the course of his employment to traverse this particular road for his employers' purposes, and therefore the dangers and risks of that particular road at the time and on the occasion in question are, to my mind, incidental to the employment.” And, using somewhat different language, the Lord President (Dunedin) in the same case gave expression to the same view. The decision was followed in the English Court of Appeal in the case of Pierce, and the opinion of the Lord President (Dunedin) was expressly approved by the Master of the Rolls. But it was argued to us that the risk here was not incidental to the respondent's employment, because the employment was not one in which the workman was exceptionally exposed to the danger which caused the accident. It was said that the same accident might have befallen any member of the public who chanced to be riding a bicycle on that road at that time. That is true but irrelevant. The statute recognises no such distinction. If the distinction were sound, then the vast majority of workmen would be deprived of the benefits of this Act, because they in the course of and arising out of their daily employment encounter the very same risks which are faced every day by members of the public. Members of the public do not recover compensation, because either they are not employed or the accident happened when they were not in the course of their employment.
The argument that was advanced to us was that a risk was never incidental to the employment if it was a risk which might befall any member of the public. That argument was advanced, as will be seen from an examination of the report, in M'Neice's case and was there negatived, as will be seen by an examination of the Lord President (Dunedin's) opinion in the case. Therefore M'Neice's case is an authority precisely in point. The fallacy was admirably exposed in the opinion of Lord Justice Buckley in the case of Pierce, where he says—“The question whether the accident is the result of a risk to which all mankind are more or less exposed is in my judgment not an exhaustive test of the question whether or not the accident arises out of the employment. The words ‘out of’ necessarily involve the idea that the accident arises out of a risk incidental to the employment. An accident arises out of an employment where it results from a risk incidental to the employment, as distinguished from a risk common to all mankind, although the risk incidental to the employment may include a risk common to all mankind.” But it was argued to us that there was a distinction between the case we have before us and these two decisions to which I have referred in respect of the frequency with which the workmen in these two cases were compelled by the nature of their employments to traverse the streets, and the infrequency of the respondent's visits to Milnathort Post Office,
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Traces of what I may call the heresy in this case are to be found in the opinions of the Master of the Rolls and of Lord Justice Buckley in the case of Pierce, where the Master of the Rolls said—“I think that this man was more exposed than other people. His employment exposed him to the risks of the streets practically all day long, allowing only for the intervals of going inside the houses of the people he was visiting.” And in Lord Justice Buckley's opinion where he says—“In the case before us the man was a collector and canvasser, and for the purposes of his employment it was his duty throughout the day to be continually passing from place to place through the streets. He was thus exceptionally exposed to street accidents.” Now if in that case the learned Master of the Rolls and Lord Justice Buckley would have denied the man compensation if he had only gone upon the streets on his bicycle on rare occasions and not often, then I respectfully dissent from that view, for I do not think that the right to compensation can depend upon the number of times upon which a man performs his duty. A risk may be incidental to an employment even although the workman has to face it only at wide intervals of time; and if the Irish case which was cited to us— Greene, 1912, 2 I.R. 430—and the recent case in the English Court of Appeal— Sheldon, [1914] 30 T.L.R. 590—really turned upon the doctrine that a risk is not incidental to a workman's employment when it is a risk which any member of the public may be called upon to face, then I very respectfully dissent, because it appears to me that such a doctrine is antagonistic to the terms of the statute which we are here administering.
In the present case the arbitrator has found as a fact that the risk which caused the accident which befell the man on the occasion in question was one incidental to his employment, and the evidence, in my opinion, warranted that conclusion. I am therefore for answering the question put to us in the affirmative.
The injured man was a coachman—for the purposes of the case a private coachman. One of his duties was, when required—and I gather that this was practically every day when his mistress was at home—to go from Warroch House to Milnathort with and for letters. He generally used his bicycle, and this, though not ordered by, was known to, his employer, and inasmuch as Warroch is more than four miles from Milnathort, I think it was in the circumstances the natural means of locomotion. But adopting what was said in Pierce's case, I can draw no distinction between that and any other mode of locomotion. On the occasion in question here, a man, presumably intoxicated, lurched against the coachman, as he was passing through Milnathort, and upset him, in consequence of which he was injured. In these circumstances the accident plainly happened in the course of the man's employment. Did it arise out of his employment? The two recent and leading cases of M'Neice and Pierce leave, I think, something to be desired in clearing up the question of law that arises. In M'Neice's case a salesman and collector for the Singer Company—I gather really a house-to-house canvasser and instalment collector—worked a district in the Cathcart suburb of Glasgow. His mode of locomotion was by bicycle. He was kicked on the knee, while riding through the street in the course of his duty, by a passing horse and incapacitated. In Pierce's case a man in the same class of occupation, and riding a bicycle in the course of his employment, was knocked down by a tramcar in Birkenhead and killed.
Both these men were exposed to the dangers of the streets in the course of their employment. The restive horse and the tramway car were both admittedly dangers of the streets. These dangers were recognised to be dangers to which they were exposed in consequence of their employment—in other words, to be incidents of their employment—and therefore they were held to have sustained injury by accident arising out of their employment.
Where I have difficulty is in satisfying myself whether the matter at issue is affected by the question of degree or not. The risk or danger, so far as it can be called a risk or danger of the streets, is one to which all who traverse the streets are exposed. One view of the legal situation, as it arises in the application of the statute, may be this—That by reason of his employment the employee is obliged to traverse the streets,
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I express my doubt of the true ground of the judgment in these cases, and think it material, because this is just one of those cases in which the danger arises, which has often been noted in the administration of the Act, of one judgment logically compelling an advance to another, which ultimately stretches the enactment beyond the intention.
I have carefully considered the opinion of Lord Dunedin, and also that of Lord Kinnear, in M'Neice's case, and it is difficult to read them otherwise—though I doubt whether their Lordships so intended—than meaning that the mere fact that the employee had to traverse the street in the course of his employment was sufficient to found liability, and that this ground of liability was not affected by the question of degree. I cannot, however, reconcile my idea of what Lord Dunedin meant with his reference to the opinion of the Master of the Rolls in Macdonald v. The Owner of the Banana, [1908] 2 KB 926, although his Lordship is, I think, under misapprehension in saying that he referred to the passage in M'Kinnon v. Millar, 1909 S.C. 380. In Macdonald's case, at p. 929, Cozens Hardy (M.R.) gives as an illustration the case of a master sending a domestic servant, as an isolated occasion in his or her service, to deliver a letter, and of the servant being knocked down by a motor omnibus, in which case he assumed that liability would arise, though the servant might never before have been exposed to the risk in the course of his or her service. It is this passage to which I understand Lord Dunedin referred. Yet I cannot read the judgment in Pierce's case without seeing that the question of degree did enter into it, and that the conclusion was reached by reason that by the nature of his employment the employee was exceptionally exposed to a class of accident to which all passers-by are exposed. In particular, I think that Cozens Hardy (M.R.) himself understood Lord Dunedin's opinion in M'Neice's case in the sense which I venture to suggest that his Lordship intended. My impression is that Lord Dunedin really took for granted the species facti without thinking it necessary to explain that the employee was by reason of the nature of his employment exceptionally exposed to the ordinary dangers of the streets. I find support for this also in the opinions of both Lord Dunedin and Lord Kinnear delivered in the case of Rodger v. Paisley School Board, 1912 S.C. 584.
If I may revert to a matter to which I have already referred, viz., the statute, and to the necessity of the employee in support of his claim satisfying the arbitrator that the injury was caused by accident both “arising out of” and “in the course of” his employment, and the danger of reducing either of these conditions to a mere synonym of the other, I would shortly state my own opinion as to the effect of the statutory provision when applied in present or similar circumstances. That the accident should “arise out of” the employment it must be occasioned by a risk incidental to the employment. A risk incidental to the employment may also be a risk common to the public. That a risk common to the public should be a risk incidental to the employment the employee must be exceptionally exposed by his employment to the common risk. If “exceptionally,” then there must arise a question of degree.
If I am right in the view above stated, when I come to this case in particular, I find that in the matter of degree it is a very narrow one. In the first place, the coachman's duty to go into Milnathort was not the man's main duty. It is a side issue in his employment, and it is not therefore as though he was spending his day, as the men in the cases of M'Neice and Pierce, upon the streets. In the next place, he was spending that part of the time which he devoted to this matter upon a country road and the street of a country village, not, as they did, on the crowded streets of a busy part of Glasgow. And in the last place, I cannot regard the risk of rubbing shoulders with, and so being jostled by, another person, whether drunk or careless, a risk of the streets of the same degree as those to which in the cases referred to the injured persons were exposed.
It is therefore, I think, a difficult question to determine whether this is really a case in which the facts justified the judgment, and that question is one of mixed fact and law. On the law I appear to differ from your Lordship. The element of fact is largely one of impression. My impression is in favour of the appellants, but in that matter I should acquiesce in the view of the majority of the Court.
The respondent's duties were those of a private coachman, and included calling for
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In the view I take it does not matter at all whether the respondent had occasion to be frequently on the road on his bicycle. If the accident had occurred on the first and only occasion on which he required, to be on the road, I should have come to the same conclusion, but if it were necessary for the respondent to show that he was because of the nature of his employment specially exposed to the ordinary dangers of the road, then I should be prepared to hold on the facts stated that because of the number of times he had to go to the post office he was exposed to the risks of the road to a degree beyond the normal.
The cases of Sheldon v. Needham, [1914] 30 T.L.R. 590, and Green, [1912] 2 Ir. R. 430, so much relied on by the appellants, were quite different from the present. The facts in the former brought it directly under the law of Andrew. In the latter, as I understand the report, the herd was not of necessity using his bicycle at all—he was not using it to further his employer's purposes. As Lord Justice Holmes put it, “It was not part of the duty of the herd to ride on a bicycle. He was riding on it for his own convenience when the accident, unconnected with his employment, occurred.”
The Court answered the question of law in the affirmative and dismissed the appeal.
Counsel for the Appellants— MacRobert. Agents— Simpson & Marwick, W.S.
Counsel for the Respondent— Aitchison. Agents— Dove. Lockhart, & Smart, S.S.C.