Blee v London & North Eastern Railway Company
| Jurisdiction | England & Wales |
| Judge | Lord Atkin,Lord Russell of Killowen,Lord Macmillan,Lord Maugham,Lord Roche |
| Judgment Date | 05 November 1937 |
| Judgment citation (vLex) | [1937] UKHL J1105-1 |
| Court | House of Lords |
[1937] UKHL J1105-1
House of Lords
Lord Atkin
Lord Russell of Killowen
Lord Macmillan
Lord Maugham
Lord Roche
My Lords,
This is an appeal in a Workman's Compensation case from an order of the Court of Appeal, who set aside an award by the late Judge McCleary, sitting at Clerkenwell, in favour of the widow of the workman. The deceased man was an acting ganger in the employ of the Respondents: he was killed as the result of a street accident while proceeding to fulfil an emergency call on the railway, and the question is whether in the circumstances the accident arose out of and in the course of his employment. The learned arbitrator found that it did: the Court of Appeal thought that as a matter of law it did not. The facts, which were not in dispute, were that the deceased man was an acting ganger employed by the Railway Company with his headquarters at Hornsey Station. He received a weekly wage of 63s. a week: and his normal hours were from 7.20 a.m. to 5 p.m. It was, however, a term of his contract that he might be ordered outside those hours to come to do emergency work on the railway. If he received such an order he had to obey it: he received overtime varying with the time of the day or night, commencing from the time he left his home and calculated to the nearest quarter of an hour with a minimum of two hours. On the day in question the workman, having worked the usual time, had retired to bed: received a message to go to Hornsey sidings where some trucks had been derailed: started out at 10.30 to get to the work was run into by a car while on his way, and received injuries from which he afterwards died. He never in fact reached the railway or any part of it.
There can be no question that had the workman been going to his ordinary work in the morning he would not have been entitled to compensation for injury suffered from street risks incurred in transit. His time in such a case is his own: he arrives at the scene of his labours as he pleases: and though it is his duty to present himself at the appointed time, yet his "employment" does not in ordinary circumstances begin for the purposes of the Act until he reaches the place where he is employed. As Lord Dunedin said in Davidson v. McRobb (1918) A.C. 304, in a passage aptly cited by my noble and learned friend Lord Russell of Killowen in Alderman v. G.W. Railway Co. (1937) A.C. at p. 459, "In my view 'in the course of employment' is a different thing from 'during the period of employment'. It connotes to my mind the idea that the workman or servant is doing something which is part of his service to his employer or master. No doubt it need not be actual work: but it must, I think, be work or the natural incidents connected with the class of work." Lord Atkinson in St. Helens Colliery Co. v. Hewitson (1924) A.C. at p. 71, puts it, "A workman is acting in the course of his employment when he is doing something in discharge of a duty to his employer directly or indirectly imposed upon him by his contract of service." In Newton v. Guest, Keen and Nettlefolds, Ltd. (1926) 19 B. at p. 126, Lord Cave L.C., accepting the test laid down in Hewitson, determines the case by consideration of the fact "that when the accident happened 'the man' was on his way to his work by the means provided by his employers but was in no sense actually engaged in the performance of his contract of service." Finally I would refer to the words of Lord Russell of Killowen in the Alderman case cited above at p. 461, "The cases in which men are employed to work at a distance from their homes and have to find lodging for themselves must be innumerable. Yet there is no case in the books or at all events none was cited in which such an one meeting with an accident when merely on his way to or from his work has been held entitled to compensation. In order to entitle him to compensation in such a case some other element must be present (involving the discharge of a contractual duty to the employer) which in law extends the course of his employment so as to include the moment of time when the accident occurred."
In the present case if the course of the employment had begun there was no dispute that the injury by street risk was an injury by...
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