Fisher or Simpson (now Johnston) v London, Midland and Scottish Ry. Company
| Jurisdiction | Scotland |
| Judgment Date | 29 November 1929 |
| Docket Number | No. 14. |
| Date | 29 November 1929 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Workmen's CompensationAct 1925 (15 and 16 Geo. V. cap. 84), sec. 1 (1)Accident arising "out of" the employmentUnexplained deathRailway guard falling from train while travelling to his work.
A railway guard, while in the course of his employment, had occasion to travel to his work as a passenger in an otherwise unoccupied railway compartment. At the end of the journey the compartment in which he had been travelling was found to be empty. Both of its doors were closed, but the window of the left-hand door was open. He was afterwards discovered lying unconscious in a tunnel some distance back, on the left-hand side of the line. He died without recovering consciousness. In a claim for compensation at the instance of his widow, the arbitrator, in addition to finding these facts, also found that it was possible to fall from the window of a train by pure accident. From these findings, he drew the inference that the guard, while conducting himself as an ordinary passenger, met his death by falling accidentally through the open window; and he accordingly awarded compensation.
Held that, on the facts, it could not reasonably be inferred that the accident to the deceased guard arose "out of" his employment.
In an arbitration under the Workmen's Compensation Act, 1925,1 in the Sheriff Court at Paisley, Mrs Catherine Mary Fisher or Simpson claimed compensation for herself and her pupil children from the London, Midland, and Scottish Railway Company, in respect of the death of her husband, Joseph Simpson, from injuries received by an accident arising out of and in the course of his employment with the Company. The Sheriff-substitute (Hamilton), as arbitrator, awarded compensation, and, at the request of the Company, stated a case for appeal to the Court of Session.
The case set forth:
"I found the following facts admitted or proved:(1) That for some year prior to 17th September 1928 the deceased Joseph Simpson was a railway guard in the employment of the appellants. (2) That on the said date he lost his life by falling in Bishopton Tunnel from one of the appellants' trains. (3) That the respondent and her pupil children named in the petition are dependants of the deceased in the sense of the Workmen's Compensation Act, 1925. (4) That in the event of the respondent establishing her claim she, as an individual and as tutrix and administratrix-in-law of her said children, is entitled to the sum of 600. (5) That, on the last-mentioned date, about 8a.m. the deceased signed on at the appellants' Control Office at Polmadie for the duties of the day. (6) That he was then instructed to travel without further duties from Central Station, Glasgow, by the 9.3 a.m. train to Gourock and there to take charge of a train from Gourock to Glasgow. (7) That the deceased accordingly joined the said 9.3 train at Central Station and proceeded to travel in a third-class compartment towards Gourock. (8) That so far as appears no one accompanied
him or saw him in the said compartment, and on one but him travelled in the said compartment between Glasgow and Gourock. (9) That he had with him a guard's equipment in a bag identified as his by a number stamped thereon, certain provision for refreshment, a cigarette case, a matchbox, and a newspaper. (10) That on the arrival of the said train at Gourock an unoccupied compartment was found containing the said articles. (11) That the said articles were laid out as if the deceased had been arranging them on the seat facing forward, toward the left side, except the newspaper which was on the opposite seat. (12) That when the said compartment was found unoccupied as aforesaid, on the right thereof, which was next to the Gourock platform, the window was found completely shut and the door open, but that it is common ground that it was probably opened at Gourock. (13) That on the left side of the compartment, which was the working side between Glasgow and Gourock, the door was found properly shut but the window open. (14) That the hinge of the said door was toward the forward end of the train. (15) That the said door was secured by a lock having a double catch and so contrived that, while the door is open or on the first or safety catch, the outer handle is necessarily at an angle almost vertical, but that, when the door is completely shut, the lock is released by a stud pressing on the jamb of the door and turns so that the door is completely secured and the outside handle is horizontal. (16) That there was no inside handle for opening the said door. (17) That the said door and its lock were in complete order and repair, and that there were no marks on the door to suggest that it had come into contact with any obstacle. (18) That the said door was 2 feet in breadth, and when fully open extended from the side of the carriage 24 inches, and that between the west end of the tunnel and the place where the deceased was found, as aftermentioned, there were several places where when fully open the door would have come into contact with the side of the tunnel. (19) That at and about the place where the deceased was found, as aftermentioned, the carriage had a clearance inside the tunnel of about 2 feet 9 inches. (20) That so far as appears all the doors of the train were properly shut on leaving Bishopton, which is the station immediately before the said tunnel, and on arrival at Langbank, which is the station immediately after the said tunnel. (21) That the open part of the window when fully opened extends to 2 feet and 1/3 of an inch in length by 1 foot 7 inches in breadth, and that the height from the floor to the bottom of the open part of the window when fully opened is 3 feet. (22) That the deceased was 5 feet 6 inches in height without his boots. (23) That during its passage through the said tunnel the compartment was lit by electricity. (24) That the deceased was found on the said date about noon, lying upon the ground in the said tunnel at a point 120 yards from the west end of the west portion of the tunnel, close to the left side thereof in the direction in which the said train was proceeding. (25) That he was then unconscious, and died without regaining consciousness. (26) That the only observable wound on the body was a lacerated wound two or three inches long at the left side of the back of the neck just at the base of the skull. (27) That on a projecting piece of stone on the side of the tunnel, about six feet above the place where the deceased was found lying, there was observed a small tuft resembling the deceased's hair, but this matter was not investigated. (28) That the cause of death was certified as fracture of the skull and shock, but there was no past-mortem examination. (29) That no facts were proved showing or tending to show that the deceased was a victim of violence, or that he committed suicide. (30) That, when at the said Control Office, he had arranged with the person in charge for rearrangement of his work to enable him on the evening of the Friday following to accompany his wife on an excursion of pleasure. (31) That when the deceased was found as aforesaid he was properly dressed, and in particular his trousers were properly buttoned. (32) That no further facts or circumstances were proved showing or tending to show that the fastenings of the door were insecure, or were interfered with by the deceased, or that the deceased opened or attempted to open, or shut or attempted to shut, the door, or leaned out of the carriage, or in any way failed to behave as a railway passenger ought, or that the door opened accidentally. (33) That he was steady man of cheerful disposition, with no domestic or financial worries. (34) That it is possible to fall from the window of a train by pure accident. (35) That it was not known what the deceased was doing at the time of, and immediately prior to, the accident. (36) That so far as appears the deceased was immediately prior to his death proceeding in the course of his employment, and that the manner in which he was killed was consistent with his continuing in that employment; and (37) That he met his death by falling accidentally through the window of the compartment in which he was travelling as aforesaid."
The case further set forth:"On these facts I formed the opinion that the accident arose out of and in the course of the deceased's employment, and that the respondent as an individual and as tutrix and administratrix-in-law of her pupil children is entitled to compensation under the Workmen's Compensation Act, 1925, in respect of the death of the said Joseph Simpson. I accordingly awarded to her as an individual and as tutrix and administratrix-in-law foresaid the sum of 600 in name of compensation, with expenses."
The question of law for the opinion of the Court was:"On the facts stated, was I entitled to find that the deceased Joseph Simpson met his death by accident arising out of his employment with the appellants?"
The case was heard before the First Division on 14th and 15th November 1929.
At advising on 29th November 1929,
LORD PRESIDENT (Clyde).I have found this case to be attended with
considerable difficulty, which the copious citation of authority by counsel from the Courts of Appeal in this country and in England and from the House of Lords has done little to dispel.
The deceased workman, a railway guard, signed on at Polmadie at 8 o'clock on the morning of 17th September 1928 for the duties of the day. The first duty assigned to him was to travel without further duties from Glasgow by the 9.3 a.m. train to Gourock, and there to take charge as passenger guard of a train leaving Gourock the Glasgow. He therefore proceeded by rail to Gourock travelling in a third-class compartment. He never reached Gourock; and the learned arbitrator finds (finding 2) that he lost his life by falling from the train at or near a point in Bishopton tunnel where his...
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