Gorman v Barclay, Curle, & Company
| Jurisdiction | Scotland |
| Judgment Date | 16 December 1925 |
| Docket Number | No. 25. |
| Date | 16 December 1925 |
| Court | Court of Session |
Lord Anderson, Lord Ormidale, Lord Justice-Clerk (Alness).
Workmen's CompensationAct 1906 (6 Edw. VII. cap. 58), sec. 1 (1)Out of and in the course of the employmentAccident during dinner hour when no pay earned by workmenWorkmen permitted to take their meals on the premisesWorkman availing himself of this permissionFatal accident to workman when on his way to resume work.
A tank-boy, whose duties were to sweep in the bottom of a ship which was in the course of construction, fell from a perpendicular ladder leading from the main deck to the ship's bottom and was killed. The accident occurred during the dinner hour, i.e. 12.5 to 1 p.m., during which time no pay was earned by the workmen, who were free either to go out for their meal or to take it in the shipyard. Before resuming work at 1 p.m. the workmen had to clock-on at the gatehouse of the yard. A gangway from the main deck to the ground was provided under statutory rules as an egress from the ship, but egress could also be obtained by the perpendicular ladder from the main deck to the ship's bottom and thence through a closing plate in the ship's side at ground level. Egress by this latter route was not forbidden. The tank-boy kept his dinner-can in a box in the ship's bottom, a place of deposit chosen by himself. On the day in question he had eaten his dinner on the main deck, and at 12.45, when he fell, he was descending the ladder to the ship's bottom on his way to deposit his dinner-can and to clock-on at the gate-house.
In a claim for compensation at the instance of his mother held that, as the boy was proceeding by a permitted route to clock-on, the accident had arisen in the course of his employment.
In an arbitration under the Workmen's Compensation Acts, 1906 to 1923, in the Sheriff Court at Glasgow, between Mrs Elizabeth Jane Elliot or Gorman, mother of Michael Gorman, and his employers, Barclay, Curle, & Company, Limited, the Sheriff-substitute (Macdiarmid) refused compensation, and, at the request of the pursuer, stated a case for appeal.
The case set forth, inter alia:Having heard parties procurators and considered the evidence led on this date I found in fact:(1) That the appellant is the mother of Michael Gorman who at the date of his death was fourteen years of age. (2) That on 6th February 1924, the said Michael Gorman entered the employment of the respondents at their Clydeholm shipyard as a tank-boy. (3) That a tank-boy is a sweeper-up whose duties are to sweep in the bottom and tank of the ship. (4) That at the date of his death, Michael Gorman's average weekly earnings amounted to 13s. 2d. (5) That on 25th February 1924, he had been engaged in sweeping-up in the bottom of the ship No. 595, which was on the stocks in berth No. 2 in said shipyard, from the commencement of work until 12.5 p.m. (6) That the dinner hour in the said shipyard, was, at said date, from 12.5 to 1 p.m. (7) That during the dinner hour, that is from 12.5 to 1 p.m., work in the shipyard was suspended, that the workmen were not paid for said dinner hour, and that they were at liberty to take their meal either in the yard or to go out for it. (8) That numbers of the workmen went home while others took their meal in the shipyard. (9) That as Michael Gorman's home was at too great a distance from the yard to permit of his going home and returning in time for the resumption of work he was in the habit of taking his meals in the shipyard. (10) That on said 25th February 1924 he, along with another lad, an apprentice carpenter, ate his meal on the main deck of said ship and that he was at liberty to eat his meal there or elsewhere in the said yard. (11) That work started again at one o'clock and that the workmen had to clock-on* when the hooter sounded at that hour. (12) That if the workman was late in clocking-on he suffered a diminution in pay and that the practice was for the men to clock-on from 12.45 p.m. onwards till 1 p.m. (13) That about 12.45 p.m. on said 25th February 1924, having finished their meal, the said Michael Gorman and the other lad prepared to leave the said ship preparatory to clocking-on. (14) That in terms of paragraph 4 of the Statutory Rules and Orders 1914, No. 461, made by the Secretary of State under section 79 of the Factory and Workshop Act, 1901, a gangway conforming to the provisions of said paragraph reached from the ground to the main deck of said ship and was provided as the means of access to and from said deck. (15) That a perpendicular ladder led from the bottom of the ship
to the main deck, and that access from the ground to this ladder was had either by way of the gangway and along the main deck to the top of the ladder or to the bottom of the ladder by way of a closing plate,that is to say a plate on the ground level in the side of the ship which had been left open for that purpose. (16) That the primary object of the said ladder was to permit the workmen in the course of their employment to reach the intermediate decks, but that it is not proved that a workman in the course of his employment was not entitled to use this ladder to go between the main deck and the hold. (17) That the said Michael Gorman kept the can in which he carried his dinner in a box in the bottom of the ship, that is to say in the place where he was working. (18) That the said box was a place in which riveters kept tools, that it was not provided by the respondents as a place for keeping cans, no such place being provided, and that it was solely of his own choice and to meet his own convenience that the said Michael Gorman kept his can there. (19) That he could get access to this box from the...
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