BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Martin v. Fullerton & Co. [1908] ScotLR 812 (30 June 1908) URL: http://www.bailii.org/scot/cases/ScotCS/1908/45SLR0812.html Cite as: [1908] ScotLR 812, [1908] SLR 812 |
||
[New search] [Printable PDF version] [Help]
Page: 812↓
[Sheriff Court at Paisley.
A labourer, working overtime on a vessel moored some six or seven feet
Page: 813↓
from a quay, went ashore between 9·30 and 10 p.m. to purchase some bread, although told not to go by the foreman. He might have made the purchase during the interval at tea time. On returning he passed the gangway, which formed the ordinary means of boarding the vessel, and which was in its proper position, and attempted to jump from the quay to the deck. He fell into the water and was drowned. There was a rule, frequently, however, broken, that the men were not to jump between the vessel and the quay, and the foreman had often warned the deceased against the practice. Held that the accident did not arise out of and in the course of the deceased's employment.
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 … be liable to pay compensation …”
In an arbitration under the Workmen's Compensation Act 1906, in the Sheriff Court at Paisley, Robert Martin senior, Paisley, claimed compensation from John Fullerton & Company, shipbuilders, Paisley, in respect of the death of his son Robert Martin junior. The Sheriff-Substitute ( Lyell), having refused to award compensation, stated a case on appeal, in which the following facts were set forth as proved:—“The deceased Robert Martin was a labourer in the employment of the respondents, and on Thursday, 31st October 1907, he was sent as one of a squad, consisting of a foreman painter, a journeyman painter, and three labourers, to do painting work on a vessel, ‘The Pine,’ then moored at Irvine Harbour. They wrought all Thursday after breakfast time, and before dinner time on Friday the foreman asked the men whether they were willing to work overtime all Friday night in order that they might finish the job and return home to Paisley at 12 noon on Saturday, 2nd November. To this the men agreed. The three labourers, of whom the deceased was one, provided and cooked their own food, and, by permission of the owners, slept on board on the Thursday night. On the Friday evening, during the tea-meal, the deceased said that they must get some bread in order to have something to eat during the night, but though the bread shop was only a hundred yards distant from the place where the vessel was moored, none of them took advantage of the meal time to go ashore and buy provisions. Between 9·30 and 10 p.m. the deceased asked the youngest labourer, Whyte, to go and buy bread, who refused. The deceased then told the foreman that he was going himself to get a loaf, who forbade him to go, and told him to send the boy (Whyte), because the deceased was the most useful man at his work. The deceased, however, persisted in going, saying that he would not be long, and the foreman made no further remark. The deceased accordingly went ashore to get bread. He was, however, unsuccessful, as the stock was sold out, and he immediately returned to the ship. He attempted to jump on board, but failed, fell into the water, and was drowned. The night was dark. The vessel was moored some 6 or 7 feet from the quay, and her deck at the place where the deceased attempted to jump was some 3 feet higher than the surface of the quay. A safe and sufficient gangway was to the deceased's knowledge placed between the vessel and the quay, for the use of the workmen. It was against the rules of the employment for a man to jump between the vessel and the pier, though that rule was frequently disregarded. The foreman generally checks the men when he finds them doing this, and, in particular, he had frequently warned the deceased against the practice. Just before the deceased attempted to jump, Irvine Johnston, a fellow-workman, who was on the quay, shouted to him not to attempt it; but in spite of this he persisted in doing so, after shouting back something which Johnstone did not catch. Before reaching the place where he attempted the leap, the deceased had passed the end of the gangway which was resting on the quay. Where he jumped was nearly abreast of the engine room in which he had been working.”
The Sheriff further stated—“I held (1) that in going ashore to buy bread the deceased was acting contrary to the orders, or at least without the permission, of his foreman; (2) that in any event there was no necessity arising out of his employment for his leaving his work to go ashore at the time he did, seeing that he knew early in the day that he was to work all night, and should have made provision for the refreshment in his own time; and (3) that in attempting to jump on board he was deliberately breaking a rule after sufficient warning, it being no part of his employment to attempt to go on board by this dangerous method when a safe gangway was to his knowledge provided for his use. I therefore found that the accident did not arise out of and in the course of the deceased's employment, and dismissed the application.”
The question of law for the opinion of the Court was—“Whether the arbitrator was right in holding that the accident did not arise out of and in the course of the deceased's employment?”
Argued for the appellant—The accident arose out of and in the course of the deceased's employment. Possibly there was ground for saying that it was attributable to his serious and wilful misconduct, but where the accident resulted in death or serious and permanent disablement the right to compensation was not affected by serious and wilful misconduct—Workmen's Compensation Act 1906, sec. 1 (2) ( c). The following cases were cited:— Keenan v. Flemington Coal Co., Limited, December 2, 1902, 5 F. 165, 40 S.L.R. 144; Blovelt v. Sawyer, [1904] 1 KB 271; Mullen v. D. Y. Stewart & Co., Limited, June 17, 1908,
Page: 814↓
45 S.L.R. 729; Robertson v. Allan Brothers, 1908, 124 L.T. (O.S.) 548. Respondent's counsel were not called upon.
On the evening on which the accident occurred the deceased workman left the vessel on which he was working and went ashore contrary to the orders of the foreman. On his return he attempted to jump from the quay to the vessel, but fell into the water and was drowned. It was against the rules of the employment for a workman to jump between the vessel and the pier, and on the occasion in question there was a gangway in position for the use of the workmen. The deceased might have used this gangway, but instead of doing so he went along the quay passing the end of the gangway, and met his death, as I have said, while attempting to jump to the vessel. His passing the gangway and going further than he required to do in order to go on board by the proper means provided, does to my mind make it clear than when he went to where he did, and tried to jump on board, which he had been warned not to do, he was not acting in the course of his employment, and that the accident did not arise out of his employment. I am clearly of opinion that the question of law must be answered in the affirmative, and I move your Lordships accordingly.
The Court answered the question in the affirmative.
Counsel far the Appellant— Hunter, K.C.— J. A. Christie. Agents— St Clair Swanson & Manson, W.S.
Counsel for the Respondents— C. D. Murray— J. H. Henderson. Agents— Morton, Smart, Macdonald, & Prosser, W.S.
