Scottish Court of Session Decisions

Mrs Jane M'Lean Braid or Laurence or Wilson or Murray, mother of the late William Laurence, miner, Windygates, and Marion Wallace Laurence, the minor child of the said Mrs Murray, appellants, being dissatisfied with an award of the Sheriff-Substitute at Kirkcaldy ( Dudley Stuart)

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in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) between them and the Fife Coal Company, Limited, respondents, appealed by Stated Case.

The Case stated—“This is an arbitration under the Workmen's Compensation Act 1906, under which the claimants craved an award against the respondents for payment into Court in terms of Schedule I (5) of the statute for the benefit of the claimants in respect of the death of William Laurence on 1st December 1922. The claimants averred that the said deceased William Laurence when in the course of his employment with the respondents in Wellsgreen Colliery, Wellsgreen, was accidentally crushed between two hutches and seriously injured, that the said accident arose out of and in the course of his employment, and that he died as a result thereof on 1st December 1922. The respondents denied that the said accident arose out of and in the course of the deceased's employment with them. They averred that prior to the accident orders had been given to the deceased by William Cowan, under manager, Frank Dickson, oversman, and Patrick Burns, fireman, all officials of the respondents' company, not to go in front of tubs descending the incline in the Sandwell Coal Section from the foot of No. 8 heading and forming the siding in the main pony haulage roadway; that such orders were directions with respect to working given to the deceased with a view to safety; that notwithstanding said orders the deceased went in front of a rake of hutches descending said incline in the Sandwell Coal Section, and was as a result thereof crushed between said descending rake of hutches and another rake of hutches which had already descended and was standing against the block in said siding; and that in so doing deceased (1) was in breach of said orders, and (2) contravened section 74 of the Coal Mines Act 1911, which provides—‘Every person shall observe such directions with respect to working as may be given to him with a view to comply with this part of this Act or the regulations of the mine or with a view to safety.” The respondents also denied that the claimant Mrs Jane M'Lean Braid or Laurence or Wilson or Murray was wholly dependent, and that the claimant Marion Wallace Laurence was partially dependent, on the deceased William Laurence at the date of his death.

Proof was led before me on 30th March 1923 and the following facts were admitted or proved:—1. That the deceased William Laurence was on 29th November 1922 in the employment of the respondents as a hanger-on at the Wellsgreen Colliery belonging to them. 2. That both claimants were partly dependent upon the deceased at the time of his death. 3. That deceased's duties were to assist another lad with the pushing of empty hutches up an incline about 54 feet long to the foot of a heading, and with the taking of full hutches from the foot of said heading down said incline, the gradient being about 1 in 26 in favour of the loaded hutch. 4. That the deceased was instructed in taking the full hutches down said incline to guide them from the side or the back, and in particular had been forbidden by the officials above mentioned to do so by going in front of them between the rails. 5. That on said 29th November 1922 the deceased was proceeding to let down a rake of three full hutches, and he did so by walking in front of the rake of hutches and backwards between the rails. 6. That the said hutches which deceased was guiding collided with a stationary rake of hutches which had been previously brought down and the deceased was crushed between them, sustaining injuries from which he died. 7. That on the morning of the accident and prior to the happening thereof the deceased was found by the said Frank Dickson, oversman, guiding hutches by walking between the rails, and was severely reprimanded by Dickson for breach of said orders. 8. That the deceased stated to his companion, who came to his assistance, that he thought the hutches he was guiding were the first three that had come down.

On 14th April 1923 I found that the said accident did not arise out of and in the course of deceased's said employment, and that the respondents were not liable in compensation to the claimants therefor. If I had found the respondents liable in compensation I should have awarded compensation to both claimants on the footing of partial dependency.”

The question of law was—“Was there evidence on which I was entitled to find that the death of William Laurence did not result from personal injury by accident arising out of and in the course of his employment? ”

In a note to his award the arbitrator stated—“The facts in this case are not, I think, in dispute. The deceased lad met his death as the, direct consequence of his disobedience to the instructions and warnings which he had received. These instructions were explicit and peremptory, and were to the effect that he must not go in front of the hutches when taking them down the incline; and he had been sharply rebuked on the very morning before the accident by the oversman Dickson, who found him disobeying the rule. The question whether a workman who has been injured by accident has been injured while doing what he was employed to do, although doing it in a dangerous and even forbidden way, or while doing something that was outwith the scope of his employment, is a question seldom easy of solution. The line separating the one class of case, from the other seems to be in spite of much exposition and illustration somewhat elusive. But I venture to think that in the more recent decisions of authority the tendency of judicial opinion has been towards a strict view of explicit orders or prohibitions in relation to the question under discussion. I take the following passage from the judgment of the Lord Chancellor (Birkenhead) in Donnelly v. Moore (1921 S.C. (H.L.) 46)—‘Where a prohibition for which the employer is responsible, in matters comparable to those under discussion, is brought clearly to the

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notice of the workman, his breach of it takes him out of the sphere of his employment, so that the risk in which he involves himself has ceased to be reasonably incidental to that employment.’ This dictum was quoted and applied by Lord Sterndale, M.R., in a case which in the facts proved bears a close resemblance to the present. In Cook v. L. and S.-W. Railway Company ( 1921, 14 Butterworth 100) a railway shunter was injured while in the act of coupling up two corridor carriages. His duty was to couple the carriages, and to do so he was obliged to stand between the lines on which they were. But he was expressly prohibited from going between the lines until the carriages were at rest. He disobeyed this order by going within the lines while the one carriage was being shunted against the other, and in consequence was fatally injured. It was held that the accident did not arise out of his employment, and that the company was not liable. The circumstances in the present case are even less favourable to the claim, for the deceased had no duty to perform within the hutch rails. He was prohibited from going within the rails for any purpose whatever. If the case of Cook was rightly decided—and the judgment was unanimous—it appears to support the respondents' contention that the accident by which the deceased lost his life did not arise out of his employment. I propose to follow it and to dismiss the claim. I should add with regard to the question of dependency which may arise if it should be held that my judgment is wrong, that I should have awarded compensation to both claimants on the footing of partial dependency.”

Argued for the appellants—The arbitrator had come to a wrong decision. The prohibition which the workman had disobeyed merely referred to the way in which his work was to be done. The infringement therefore did not put him outwith the sphere of his employment— Plumb v. Cobden Flour Mills Company, 1914 A C 62, per Lord Dunedin at p. 65; Mawdsley v. West Leigh Colliery Company, Limited, (1911) 5 B.W.C.C. 80; Blair & Company, Limited v. Chilton, (1915) 8 B.W.C.C. 324, 53 S.L.R. 503; Herbert v. Samuel Fox & Company, [1916] 1 A.C. 405; Donnelly v. Moore, 1921 S.C. (H.L.) 41, 58 S.L.R. 85; Bourton v. Beauchamp, [1920] A.C. 1001, per Viscount Cave at p. 1005; Estler Bros. v. Phillips, (1922) 91 L.J. (K.B.) 470, 127 L.T. 73, 15 B.W.C.C. 291. In the light of these decisions Cook v. London & South-Western Railway Company, 1921, 14 B.W.C.C. 100, was of no authority. The prohibition was not one which had reference to the locus or area within which the workman was to work, and the infringement of which might have put him outwith the sphere of his employment— Plumb v. Cobden Flour Mills Company; Donnelly v. Moore. M'Intosh v. Arden Coal Company, 1923 S.C. 830, 60 S.L.R. 532, was practically the same as Donnelly v. Moore. Gaunt v. Babcock & Wilcox, 1918 S.C. 14, 55 S.L.R. 28, was also referred to.

Argued for the respondents—The arbitrator was right. The question whether or not a rule was such that a breach of it put the workman out of the sphere of his employment was one of degree. The only principle established was that of Lord Birkenhead in Donnelly v. Moore (cit.). The decision in Estler Bros. v. Phillips ( cit.) stood alone. No reasons were given, anditdecided no general principle. Where, as here, there was a rule of an important character for the safety of the workman himself, it fell to be relegated to the category of rules the breach of which put the workman outside the sphere of his employment. This was a prohibition observance of which was statutory—Coal Mines Act 1911 (1 and 2 Geo. V, cap. 50), sec. 74, and it fulfilled the requirements of the test propounded by Lord Dunedin in Conway v. Pumpherston Oil Company, Limited, 1911 S.C. 660, 48 S.L.R. 632, and in Plumb v. Cobden Flour Mills Company, Limited ( cit.). The cases of Fair—hurst v. Hollinwood Screw and Rivet Company, (1923) 16 B.W.C.C. 168; Rodger v. Fife Coal Company, 1923 S.C. 280, 50 S.L.R. 187; and Hawkridge v. Howden Clough Collieries Company, Limited, (1923) 16 B.W.C.C. 55, were also referred to.