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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Haley v. The United Collieries, Ltd [1906] ScotLR 44_193 (15 December 1906) URL: http://www.bailii.org/scot/cases/ScotCS/1906/44SLR0193.html Cite as: [1906] ScotLR 44_193, [1906] SLR 44_193 |
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Page: 193↓
[Sheriff Court at Airdrie.
A miner went to a pit where he was employed to inquire when it would resume work after a temporary stoppage, and to uplift wages. In returning he made use of a short-cut home sometimes used though neither authorised nor actually prohibited, which took him by neither of the provided roads but across the sidings belonging to the mine and down the railway line of a railway company. While in the act of crossing the sidings, and consequently still on the mine premises, he sustained fatal injuries through an accident. Held that while the miner's visit to the mine might be “in the course of the employment,” the accident was not one “arising out of and in the course of the employment” in the sense of the Workmen's Compensation Act 1897.
The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), sec. 1 (1), enacts — “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
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employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the first schedule to this Act.” Section 7 (1)—“This Act shall apply only to employment by the undertakers, as hereinafter defined, on or in or about a railway, factory, mine …;” and (2) “In this Act … ‘mine’ means a mine to which the Coal Mines Regulation Act 1887 or the Metalliferous Mines Regulation Act 1872 applies.” Francis Haley, miner, Longmuir Square, Bargeddie, claimed from the United Collieries, Limited, Kirkwood Colliery, Coatbridge, the sum of £132, 12s., with interest from May 18, 1906, under the Workmen's Compensation Act 1897 as compensation for the death of his son. In an arbitration under the Act in the Sheriff Court at Airdrie the Sheriff-Substitute ( Glegg) assoilzied the defenders, finding in law on the facts—“(1) That the pursuer was in part dependent on the earnings of the deceased; (2) that the accident to the deceased did not arise out of and in the course of the employment by the respondents.”
The pursuer took an appeal by stated case.
The facts as given in the case, so far as material, were—“(1) The pursuer's son Francis Haley was in the employment of the respondents as a miner for four trade weeks, and during that period his average earnings were 17s. 7
d. per week …; (5) on Thursday, 17th May 1906, work at the respondents' pit, at which the deceased was employed, was stopped through a breakdown in the haulage; (6) on Friday, 18th May, between three and four o'clock in the afternoon, the deceased went to the pit to lift some advance wages which he received and to inquire if the pit would be working on the following day; (7) after accomplishing these objects the deceased proceeded to go home, intending to cross from the pit premises on to the line of the Caledonian Railway and to go home by trespassing along that line; miners sometimes took this route; (8) when crossing between some trucks on a lye on respondents' premises some of them were set in motion by another employee of the company and the deceased was fatally crushed between them; (9) the deceased came suddenly from behind a chimney on to the lye, and the waggon shifter's shout of warning—given at once—although it was heard was either disregarded or was too late to prevent the accident; (10) the route by which the deceased was proceeding to leave the respondents' premises was not the proper exit and the deceased was aware of this; there was no express prohibition by the respondents against miners leaving their premises at this spot; (11) there are two exits provided for leaving the pit; (12) if the deceased had been going to either of these, whether from the pay office or pit head, he would not have crossed the lye where the accident happened; (13) after the deceased had lifted his pay his name the remained on the books as a miner in the employment of the respondents.” 1 2 The question of law for the opinion of the Court was—“Whether in the circumstances before stated the accident to the deceased Francis Haley arose out of and in the course of his employment with respondents.”
Argued for the appellant—By the contract of the deceased's employment he was bound to uplift his wages at the pit. Thus in coming to do so and to inquire as to the resumption of operations the deceased workman was “in the course of the employment.” Nor had he left the employers' premises when the accident occurred, for a “mine” included the sidings above ground — Coal Mines Regulation Act 1887 (50 and 51 Vict. cap. 58), sec. 75. The Sheriff's findings 1 and 13 also decided that the workman was in the course of his employment. Consequently, short of serious and wilful misconduct, a claim in virtue of his death was covered by the Act, and that even though he was going by an unrecognised route— M'Nicholas v. Dawson & Son, [1899] 1 QB 773, A. L. Smith (L.J.), at 777; Logan v. Fullerton, Hodgart, & Barclay, June 26, 1901, 3 F. 1006, 38 S.L.R. 738; Tod v. Caledonian Railway Company, June 29, 1899, 1 F. 1047, 36 S.L.R. 784. Though actual work had ceased the employment might continue— Tod, cit. sup. The liability of the employer lasted while the workman was on his premises— Mackenzie v. The Coltness Iron Company, Limited, October 21, 1903, 6 F. 8, Lord M'Laren, at 11, 41 S.L.R. 6; Goodlet v. Caledonian Railway Company, July 10, 1902, 4 F. 986, 39 S.L.R. 759. The period of “employment” might even begin before that of actual work— Holmes v. Great Northern Railway Company, [1900] 2 QB 409, A. L. Smith (L.J.) at 412; Sharp v. Johnson & Company, Limited, [1905] 2 KB 139, Collins (M.R.) at 145. That being so, only an act done by the workman amounting to serious and wilful misconduct would relieve the employer of liability — Smith v. Lancashire and Yorkshire Railway, [1899] 1 QB 141—and there was no serious and wilful misconduct suggested here. The case of Gibson v. Wilson, March 12, 1901, 3 F. 661, 38 S.L.R. 450, relied on by respondents, was decided on the footing that the employer was not in occupation of the premises.
Argued for the respondents—No compensation was due, the accident not having been one arising out of and in the course of the workman's employment. This case was ruled by Caton v. Summerlee and Mossend Iron and Coal Company, Limited, July 11, 1902, 4 F. 989, 39 S.L.R. 762. Had the workman used the ordinary route in leaving the premises the employers might have been liable, but he had not done so and they were free— Gibson v. Wilson, cit. sup.; Mackenzie v. Coltness Iron Company, Limited, cit. sup., Lord M'Laren at 6 F. p. 10. The Sheriff's findings, 7 to 12, showed the line taken by the deceased was not the proper one. The pit was idle and he had no title to be on the premises as a workman, nor was it said that that was the proper time to uplift wages. The Sheriff was therefore right and the respondents were not liable.
Page: 195↓
At advising—
I am also prepared to assume in the appellant's favour that the place where the accident happened was within the employers' premises, or even (so far as that is important) in or about the “mine” at which the deceased was for the time employed.
But so assuming, I am unable to hold that, having regard to the place of the accident, to the deceased's reason for being at the place, and to the whole circumstances, the appellant has succeeded in bringing the case within the scope of the statute.
It was ably argued on his behalf as a proposition deducible, if not from the statutes, at least from the decisions, that whenever an accident happens to a workman on his employer's premises—particularly in or about a mine in which he works—he becomes thereby entitled to compensation, unless it appears that the accident was due to his own serious and wilful misconduct.
I cannot, however, assent to that argument. The suggested proposition is much too broad. It is not, in my opinion, supported by the authorities cited, and, indeed, is not consistent with some of them, particularly the cases of Gibson ( 3 F. 661) and Caton ( 4 F. 989). Nor am I able to deduce it from the terms or the scheme of the statute. The question always remains whether—given everything else—the accident arose out of and occurred in the course of the workman's employment; and that is a question which cannot, in my opinion, be solved by reference to any formula or general principle, but must always depend on the circumstances of each case.
In the present case I think the determining circumstances which, in combination if not separately, exclude the claim, are shortly these—(1) The deceased had on the afternoon in question not only finished his work (such as it was) at the mine, and was some distance off on his way home, but he was not proceeding homewards by either of the provided and usual roads. (2) Again, the place where the accident happened was not a place where he had any duty or business to be, or where at the time in question he was, or indeed at any time could be, in the ordinary course of his employment. (3) Further, in point of fact the deceased was at the place in question only because, desiring apparently to reach his home by a short cut, he was making or trying to make his way to the Caledonian Railway, along which he proposed to walk (as a trespasser) until he reached some point on the public road.
It seems to me that in these circumstances the accident which occurred was no more one arising out of and in the course of the deceased's employment than if he had been injured in getting over the railway fence, or had been knocked down after doing so by a passing train.
I am therefore for answering the question put to us in the negative and refusing the appeal.
The question then is, whether in these circumstances the accident happened to the deceased in the course of his employment. Now of course it must be recognised that the term “employment” in this connection is not restricted to the period of the actual work. The course of employment for the day may and generally does begin before the actual work, and may last after the actual work is over. It happens that in the case in hand the day of the accident was not a working day at all; for the pit was stopped. But I think it may reasonably be held, and I assume, that the act of the deceased in going to the pay-office to lift his wages, and to inquire whether the pit was to work next day, was done in the course of his employment; and that if an accident had happened to him on that occasion in the course of using either of the provided entrances or exits, the company would have been liable in compensation. In short, his employment that day consisted (in this view) in entering the works by a provided entrance to get his money and his information, and going home by a provided exit when he had got them. On the facts as stated, the crossing of the lye where the accident took place was no more in the course of his employment than if, in making his exit, he had crossed his employers' wall by climbing, or their canal by swimming.
Page: 196↓
On this ground I agree that the appeal must be refused.
The Court answered the question of law in the negative and dismissed the appeal.
Counsel for the Appellant— Moncrieff. Agents— Simpson & Marwick, W.S.
Counsel for the Respondents— Horne. Agents— W. & J. Burness, W.S.
