Officer v Davidson & Company
| Jurisdiction | England & Wales |
| Judgment Date | 28 January 1918 |
| Date | 28 January 1918 |
| Docket Number | No. 7. |
| Court | House of Lords |
Ld. Chancellor (Finlay), Viscount Haldane, Ld. Dunedin, Ld. Atkinson, Lord Parmoor.
Workmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), sec. 1 (1)—‘Out of and in the course of the employment’—Seaman ashore by leave for his own purposes—Return to ship—Fall from dock before reaching ship—Dock closed to public—Access by Admiralty pass.
A ship was lying in a public harbour, which had been taken over temporarily by the Admiralty and was closed to the public, only such persons as possessed an Admiralty pass having access to it. The chief engineer of the ship went ashore on leave for purposes of his own after obtaining a pass, and, while proceeding after dark along one of the quays of the harbour on his way back to the ship, but before reaching the place where the ship was lying, he fell into the dock and was drowned.
Held (rev. judgment of the First Division, diss. the Lord Chancellor) that, as the accident had occurred prior to the engineer's arrival at the provided access to the ship, and at a time when he was not engaged on any duty forming part of his service to his employers, the accident did not arise out of his employment.
Stewart & Son v. LonghurstELR, [1917] A. C. 249, distinguished.
Opinions that ‘in the course of the employment’ does not mean ‘during the period of the employment,’ but means in the course of doing something which is part of, or incidental to, the workman's service to his employer; and that the employment is interrupted when the workman is absent on leave for his own purposes.
Dicta of Earl Loreburn in Moore v. Manchester LinersELR, [1910] A. C. 498, at p. 500, and of Fletcher Moulton, L. J., in Kitchenham v. Owners of S.S. ‘Johannesburg,’ [1911] 1 K. B. 523, at p. 526, disapproved, per the Lord Chancellor, Lord Dunedin, and Lord Atkinson.
(In the Court of Session, 17th March 1917—1917 S. C. 485.)
The defenders appealed to the House of Lords.
The facts of the case are stated in the Lord Chancellor's opinion.
The appeal was heard on 15th, 19th, and 20th November 1917.
Argued for the appellants;—Stewart & Son v. LonghurstELRELR1 was distinguishable from the present case. In that case the question was whether the accident arose in the course of the employment. In the present case the question was whether the accident arose out of the employment. In Stewart & Son'sELRELR case1 it was the contract of employment that took the workman to the dock. In the present case he was on the dock, not on ship's business, but for his own purposes. If it had not been necessary to get a pass the case would have been clear. But the workman got the pass solely for
his own pleasure and not for the purpose of forwarding the ship's business, and the accident was an incident of his pleasure, not of his work. When a seamen fell into a dock the accident did not necessarily arise out of his employment. The control by the naval authorities made no difference. The dock was not a means of access supplied by the ship, but a public dock subject to war restrictions. There was no causal relation between the employment and the accident. The undernoted authorities were referred to.1
Argued for the respondent;—Stewart & Son v. LonghurstELR2 could not be distinguished from the present case. There was no difference in principle between a private dock and a public dock which had been taken over by the Admiralty. Owing to the restrictions imposed the public dock had become a private dock for the time being. Parker v. Owners of S.S. ‘Black Rock’ELR3 was thus not in point. In the present case the workman had obtained access to the dock solely for the purposes of his work, and at the time when the accident happened he was returning to his ship, and that by an access which was provided indirectly by the ship. Further, a seaman who went ashore on leave was still in the course of his employment.4Richards v. MorrisELR5 and Nicol v. Youngs Paraffin Light Co.6 were further illustrations of the principle. The question decided by the arbitrator was a question of law and was therefore open to review.
At delivering judgment on 28th January 1918,—
Lord Chancellor.—This is an appeal from a judgment of the First Division of the Court of Session allowing the claim of the respondent on behalf of herself and her children to compensation under the Workmen's Compensation Act in respect of the death of her late husband, Charles Officer. The deceased was in the employment of the appellants as chief engineer on board the steamship ‘Ferryhill,’ which on 25th February 1916 was moored in the inner basin of Ramsgate Harbour. On the evening of that day he went ashore by leave for his own purposes, and about 10.30 p.m. was returning to his vessel, but fell into the water of the dock and was drowned. The night was extremely dark, stringent restrictions as to lighting being enforced by the naval and military authorities.
The deceased had made his way through the gate at the point marked A on the plan and along the Cross Wall Quay, which separates the harbour from the inner basin, as far as the corner near a bridge over a cut which he had to cross to reach the ‘Ferryhill.’ In the darkness he missed the bridge and fell from the pier into the water about the point marked E on the plan. The widow's claim under the Workmen's Compensation Act came before the Sheriff-substitute, who stated the facts as to the harbour as follows:—‘(12) That the harbour of Ramsgate is a public harbour, and access to its quays has been ordinarily open to the public, but since the outbreak of war parts of the harbour have been subject to the control of the naval and military authorities, and used conform to their regulations; (13) that since the war began these authorities have taken control of the pier-yard, the east pier and west pier, and the Cross Wall Quay from the fish market to the powder magazine, and have also had under their control the quays of the inner basin, except the military road quay and the quay at the west end running from the ice-house to the powder magazine; (14) that to the parts of the harbour under the control of the said authorities there are two landward accesses, one at the point A, which at the time of the accident was in the charge of a sergeant of police, and the other at the point E, which was looked after by the military; (15) that under the said regulations only persons wearing naval or military uniform, and persons known to have business at the harbour, are allowed to enter by these accesses the places under the control of the authorities, and all persons not wearing naval or military uniform are required to produce passes in order to be allowed entry; (16) that passes for men in the service of the Admiralty are issued direct from the naval officer at the harbour, signed by a naval officer, and other persons receive printed passes from the harbour office, signed by the harbourmaster and countersigned by a naval officer; (17) that the deceased, prior to leaving the harbour on the night of the accident, received a pass duly signed entitling him to return, and was in possession of the pass when later on he re-entered the harbour area at A.’
The Sheriff-substitute held that the accident to the deceased happened in the course of his employment, but that it had not been shown to arise out of his employment, and therefore found that the steamship owners were not liable. He stated a case, the question of law for the opinion of the Court being whether he was entitled to hold that the accident to the deceased did not arise out of his employment. In a note appended to the case the Sheriff-substitute stated that he proceeded on the ground that the absence of the deceased from the ship had not been in pursuance of any duty owed to his employer, but on an errand of his own, and that the quay was common to all who had access to it, and did not form the specific means of access appropriate to the ‘Ferryhill.’
On appeal the Court (the Lord President, Lord Mackenzie, and Lord Skerrington) held that on the facts the accident arose out of the employment, and accordingly answered the question put in the case in the negative. From that decision the present appeal has been brought by the shipowners asking that the decision of the Sheriff-substitute in their favour should be restored.
If the question were one of fact merely, there would be no appeal from the arbitrator's finding. But it appears to be quite clear from the stated case and the note appended to it that there is no dispute as to the facts, and that the question is whether in point of law upon these facts the arbitrator was correct in holding that the accident did not arise out of the employment.
There is a long series of cases in which the question has been discussed at what point employment for the purposes of the Workmen's Compensation Act begins and ends. In Gilmour v. Dorman, Long, & Co.UNK1 the Master of the Rolls said: ‘It has been repeatedly held that a man is not entitled to the protection of the Act when on his way from his home to the works. There may be some difficulty in ascertaining precisely when a man's employment begins. Generally speaking the factory gate or yard indicates the boundary.’ The authorities bearing on this point came under review in this House in the case of Stewart & Son v. LonghurstELR,2 and their effect was thus summarised by me. After a reference to the unreported case of Cross, Tetley, & Co. v. Catterall the judgment proceeds: ‘The decision in that case established that the employment may begin as soon as the workman has reached his employer's premises or the means of access thereto. And in the same way the employment may be considered as continuing until the workman has left his employer's premises. The case would be different if the workman was at the time of the accident on the public highway on his way to or from his work. His employment cannot be considered as having begun if he is merely in transit in the...
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