Scottish Court of Session Decisions

This was an appeal in an arbitration under the Workmen's Compensation Act 1897, before the Sheriff-Substitute at Glasgow ( Balfour), between the Caledonian Railway Company, appellants, and Archibald Bathgate, carter, claimant and respondent.

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The facts stated by the Sheriff-Substitute as admitted or proved were as follows:—“(1) That the respondent was a carter with Wordie & Company, contractors, who had a contract with the appellants for the cartage of goods to and from the appellants' station in Buchanan Street, Glasgow. (2) That on 27th October 1900 the respondent had been in accordance with his usual practice collecting goods from various firms in town, and had carted them to the appellants' station and delivered them there. (3) That he was leaving the station with his horse and lorry, when the horse took fright at the gate of the station. (4) That on the occasion in question he had finished his day's work, and was proceeding to the stables when the accident occurred. (5) That the approach to the station from Buchanan Street is by means of a crossing of the footpath of Buchanan Street, and that the lorry was on the crossing, and the hind end of the lorry was not clear of the crossing of the footpath when the horse reared up and bolted. (6) That the respondent and another man on the lorry did all in their power to control the horse, but it got beyond their control and dashed down the incline in Buchanan Street until it came to the top of Dundas Street, where it dashed into an apothecary's shop, and the respondent's left leg was crushed between the wall and the lorry. (7) That the respondent's leg had to be amputated, and he is now unfit for his work as a carter. (8) That the horse continued on its course without any interruption until it dashed into the apothecary's shop, and the shop is at a distance of 315 yards from the entrance of the station. (9) That the respondent had been about ten months in the employment of Wordie & Company, and his duties were to deliver goods from the station in the morning to various places in town, and in the afternoon he was regularly employed collecting goods from various houses in town and delivering them at the station, where his work was finished. (10) That he was not employed in any other work, either on behalf of the appellants or on behalf of Wordie & Company, after he delivered the goods at the station. (11) That Wordie & Company have a contract with the appellants whereby they carry their traffic from the town to the station or from the station to the town at so much per ton, and, generally speaking, the work done under the contract is that Wordie & Company go to the station and load goods and deliver them to various houses in town, and they also go to various houses in town and lift goods and deliver them to the Railway Company at the station.”

In these circumstances the Sheriff-Substitute found in law “(1st) That on the occasion in question the respondent was employed on, in, or about a railway, and the accident arose from the bolting of the horse, which took place at the railway station. (2nd) That the appellants were the undertakers in the sense of the Workmen's Compensation Act; and (3rd) that they contracted with Wordie & Company for the execution by them of their cartage work, and they are liable under the Act to Wordie & Company's workmen in respect of any accident arising out of and in the course of their employment.” The Sheriff-Substitute accordingly awarded the respondent compensation.

The questions of law for the opinion of the Court were—“1. Whether in view of the fact that the respondent was in the employment of Messrs Wordie & Company, carting contractors, who have contracted with the appellants to carry goods to and from appellants' station at a fixed rate per ton, and that the respondent had delivered at Buchanan Street Goods Station a load of goods falling under the contract with his employers, and at the time of the accident was proceeding to the stables with his horse and empty lorry, the respondent sustained personal injury by accident arising out of and in the course of employment by the appellants as undertakers in the meaning of the Workmen's Compensation Act 1897? 2. Whether, in view of the fact that the horse attached to the lorry in charge of the respondent bolted when on the foresaid crossing outside the gate of Buchanan Street Goods Station, and that the respondent was injured at a point 315 yards distant from said station, the respondent was injured in employment on or in or about a railway.”

In the Court of Session the appellants did not dispute that they were the undertakers within the meaning of the Act.

The Workmen's Compensation Act 1897 enacts—Section 1 (1)—“If in any employment to which this Act applies personal injury by accident arising out of and in the course of the employment is caused to a workman, his employers shall, subject as hereinafter mentioned, be liable to pay compensation.” Section 7 (1)—“This Act shallapply only to employment by the undertakers as hereinafter defined ( inter alia) on or in or about a railway.” …

Argued for the appellants—(1) The accident to the respondent did not arise out of and in the course of his employment— Gibson v. Wilson, March 12, 1901, 3 F. 661, 38 S.L.R. 450; Holness v. Mackay and Davis ( 1899) 2 Q B 319. (2) The respondent's employment was not “on or in or about” a railway. Clearly it was not “on or in” the railway. Nor was it “about” a railway. That word, according to the decisions, implied local contiguity to the railway or factory, and the workman's claim had been rejected where the accident had occurred within a less distance than in the present case, viz., 315 yards— Kent v. Porter, March 20, 1901, 38 S.L.R. 482; Brodie v. North British Railway Co., November 6, 1900, 3 F. 75, 38 S.L.R. 38; Barclay, Curle, & Co. v. M'Kinnon, February 1, 1901, 3 F. 436, 38 S.L.R. 321; Lowth v. Ibbotson (1899), 1 Q.B. 1003. Although the horse bolted from a point near the railway, the accident could not be said to have occurred there, but at the point where it dashed into the shop.

Argued for the respondent—(1) The accident occurred in the course of the respondent's employment— Tod v. Caledonian

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Railway Co., June 29, 1899, 1 F. 1047, 36 S.L.R. 784; Holmes v. Great Northern Railway Co. (1900), 2 Q.B. 409. (2) It occurred “about” a railway. The accident was in truth the bolting of the horse, which clearly happened “about” the railway, although the consequences, i.e., the injuries, happened 315 yards away. The case was the same as if the horse had bolted from within the premises, in which case the appellants would have been liable— Monaghan v. United Collieries, Limited, November 27, 1900, 3 F. 149, 38 S.L.R. 92; Strain v. Sloan & Co., March 13, 1901, 3 F. 663, 38 S.L.R. 475; Fenn v. Miller (1900), 1 Q.B. 788.