Clark v Lord Advocate
| Jurisdiction | Scotland |
| Judgment Date | 17 June 1922 |
| Docket Number | No. 73. |
| Date | 17 June 1922 |
| Court | Court of Session |
Lord President (Clyde), Lord Mackenzie, Lord Skerrington, Lord Cullen.
Workmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), sec. 1 (1)—‘Out of and in the course of the employment’—Workman injured by unintentional blow from fellow servant while passing on stair.
A post-office sorting-clerk, while ascending some wheeling steps in a stair of the post-office, was struck in the eye and seriously injured by another employee, who was descending the stair and, not noticing the sorting-clerk, waved his hand, as he passed, to a third employee.
Held that the accident arose out of the employment, in respect that the construction of the stair necessarily brought the employee when using it into such close proximity to other employees who might happen to pass him as to expose him to the risk of injury due to their careless gestures.
In an arbitration under the Workmen's Compensation Act, 1906, in the Sheriff Court at Stirling, in which James Key Clark, Post- Office sorting-clerk, Stirling, claimed compensation from the Lord Advocate as representing the Postmaster-General, his employer, the Sheriff-substitute (Leslie) refused compensation, and at the request of the workman stated a case for appeal.
The case set forth the following facts as admitted or proved:—‘From September 1916 until 8th August 1921 the appellant was a sorting-clerk in the employment of His Majesty's Postmaster-General at the Post-Office, Stirling. His average weekly earnings amounted to £3, 6s. The employees' retiring-room of the Stirling Post-Office is in the basement flat. Between this room and the working-rooms access is had by a stair consisting of six straight steps, nine wheeling steps, and another six straight steps. The upper half of the stair is quite well lighted. The lower half is rather dark. The steps are rather steep, being 7 or 8 inches in height. The straight steps are 3 feet 6 inches in length. The wheeling steps are a little longer, extending into rectangular corners. Two persons passing at the wheeling steps require to exercise care. It is not a dangerous stair. It is not in a part of the office open to the public. On 2nd August 1921 at 2 p.m. the appellant was, in the course of his employment, ascending the stair. Just after he had begun the ascent a fellow employee in the post-office named Ingram began to descend. As Ingram had begun to descend a friendly remark was made to him, about his return from camp, by a third employee who was on the landing which Ingram had left. Ingram replied and continued to descend looking upwards and waved his left hand. As he brought down his hand the spectacles the appellant was wearing were displaced by it and one of Ingram's fingers touched the appellant's left eye. Ingram was going down smartly and the appellant was going up slowly. Ingram did not observe the appellant until his hand came in contact with him. When the accident occurred the appellant and Ingram were at or about the upper portion of the wheeling steps. There the light was not defective. The appellant continued at work until 8th August when he had to give it up owing to the injury. The accident injured his left eye, and in consequence he was and still is totally incapacitated for work.’
The case further stated:—‘On these facts I found that the appellant was not injured by accident arising out of and in the course of his employment with the respondent, and that the appellant was not entitled to compensation from the respondent under the Workmen's Compensation Act, 1906.’
The question of law for the opinion of the Court was:—‘Was I entitled, on the facts found proved or admitted, to find that the appellant was not injured by accident arising out of and in the course of his employment with the respondent in terms of the Workmen's Compensation Act, 1906?’
The case was heard before the First Division on 1st, 2nd, and 6th June 1922.
Argued for the appellant:—It had never been held that the act of a fellow servant who was merely negligent took the injured workman out of the sphere of his employment if the injury occurred in the course of the employment. The negligent act of the fellow servant was in pari casu with causes such as the fall of a wall on the employer's premises,1 the dangers of the street,2 and other risks common to mankind.3 In such cases ‘out of’ was assimilated to ‘in the course of’ the employment, always provided that the accident occurred at a place where the workman was entitled to be.4 If the act of the fellow servant had been malicious, it might have been necessary to consider whether the employment involved such a risk5; and an accident resulting from ‘larking,’ of which there was no suggestion here, might raise a different issue. In an accident due to the mere carelessness of a...
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