Slavin v Carmichael & Company
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Lord Thankerton,Lord Macmillan,Lord Simonds |
| Judgment Date | 25 January 1945 |
| Judgment citation (vLex) | [1945] UKHL J0125-3 |
| Docket Number | No. 3. |
| Court | House of Lords |
| Date | 25 January 1945 |
[1945] UKHL J0125-3
House of Lords
Lord Chancellor
Lord Thankerton
Lord Macmillan
Lord Simonds
After hearing Counsel, as well on Wednesday the 13th, as on Thursday the 14th, days of December last, upon the Petition and Appeal of Philip Slavin, Pauper, care of Corson, 180 High Street, Ayr, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division, of the 22d of October 1943, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of A. M. Carmichael and Company, Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor, of the 22d day of October 1943, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Cause be, and the same is hereby, Remitted back to the Court of Session with a Direction to answer both Questions of Law in the Stated Case in the negative, and to remit the case to the Arbitrator to award compensation, and to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the proceedings before the Arbitrator and in the Inner House of the Court of Session, and also the Costs incurred by him in respect of the said Appeal to this House, such last-mentioned Costs to be taxed in the manner usual when the Appellant sues in formâ pauperis and the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within One Calendar Month from the date of the Certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Judge acting as Vacation Judge, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
I have had the advantage of reading in print the Opinion which my noble and learned friend Lord Thankerton is about to deliver in this case; I agree with him on all points and think that this Appeal should be allowed.
As we are reversing the decision of the Court of Session (which felt itself bound by findings of fact), I propose briefly to formulate my own conclusion in my own words. There is no need to restate the details, which are fully set out by my noble and learned friend.
The question is whether this accident arose out of the Plaintiff's employment, and there is plenty of authority to show that the "employment" includes not only the work which the man is expressly employed to do, but also what is incident to it. (See, for example, Lord Shaw's analysis of the term in Thom or Simpson v. Sinclair [1917] A.C. 127 at p. 142).
The Appellant was not employed merely to drive a tractor: he was employed to drive a tractor which was drawing a scraper, and he was in sole charge of this double apparatus for the purpose of removing top-soil which was covering outcrop coal. If all went well, the operations of the scraper were controlled from the tractor-driver's seat by levers and ropes, but if the scraper "stuck" in the course of its run, what was the Appellant to do? He had never been prohibited from getting down from his driver's seat to see what was the matter or to form a judgment as to whether a minor adjustment would put things in working order: he had never been prohibited from touching the scraper, or directed that if any part of the scraping apparatus jammed, he must leave it alone and summon the fitters, or remain stranded till they presented themselves. On the contrary, he or other tractor-drivers in the same employ had previously made minor running repairs on scrapers without rebuke and with the knowledge of their foreman, or of the fitters; though I should doubt whether the release of a jammed slide could in any event be properly regarded as a "repair." The Appellant, as the Arbitrator finds, was not actuated by bravado, or curiosity, and was not foolhardy, but, believing that nothing more than a simple operation was involved, tried to release the jammed slide "so that he should continue his work."
If it were open to the House to decide, as a matter of fact, whether the accident in these circumstances arose out of the Appellant's employment, I should certainly advise Your Lordships that it did; but of course we have to take the decision of fact from the Arbitrator, assuming that there is evidence to support it (which I beg leave to doubt) and that he had not misdirected himself in law. But I think he has misdirected himself, for, as Lord Thankerton is about to point out, he has misapplied Lord Dunedin's test, as formulated in the twin cases of McFerrin v. Wilsons and McAulay v. James Dunlop [1926] A.C. 377. That test was to ask whether the claimant, when he met with his injury, was "doing what he has not been engaged and is not entitled to perform." But this test was formulated in reference to cases where there was a Statutory regulation prohibiting what the workman was doing; in such cases, his act could not, therefore, be incidental to his main employment, for he was prohibited from so acting. That is not analogous to the present situation at all: there is really nothing to place the action of the Appellant outside the scope of his employment other than the fact that fitters (who were not on the spot) were appointed to undertake major repairs. But this is not enough. It by no means follows that the driver, in the absence of directions to the contrary, was not "entitled" to touch the scraper. What he attempted to do was in relation to apparatus under his sole control and in direct connection with the work on which he was employed, and in order to enable him to continue it. There is neither evidence nor finding that nobody save fitters released jammed slides.
The case is manifestly different from suggested illustrations where the guard of a train arrogates to himself the duty of driving the engine or the booking clerk takes on himself to move signals. Those are cases in which the boundary of one employment is clearly distinct from, and does not impinge upon, the other.
I hold, therefore, that the Appellant succeeds under section 1 (1) of the Act, and I move that this Appeal be allowed with costs.
My Lords,
In the present case the arbitrator refused the Appellant's application for compensation under the Workmen's Compensation Acts, and, on an appeal by stated case, the First Division of the Court of Session have declined to interfere with the decision of the arbitrator. I am of opinion that the learned arbitrator has misdirected himself, and that the appeal should be allowed.
On the 9th July, 1942, while the Appellant was driving a tractor drawing a 13-yard Le Tourneau scraper, the slide in the scraper jammed in the course of its run. The Appellant attempted and managed to release the jam with an iron bar. The powerful spring by which the slide is actuated came into operation and the Appellant's leg was caught by the connecting rope, and he sustained serious and permanent injuries. He is still totally incapacitated, though it is likely that in time he will recover partial capacity.
It is now right to state the material findings by the arbitrator of facts proved:—
"(5) The claimant was acting without instructions from the Respondents in releasing the jammed slide, but he had never been expressly prohibited from doing so, nor had he been warned not to do so. It was not proved that he had received any instructions what he should do or what, if any, examination he should make in the event of the slide's jamming. There was no notice on the premises relating to the matter.
(9) From the latter part of November, 1941, the claimant had been employed by the Respondents at Prestwick, Ayrshire. There he was employed chiefly as a greaser. He also drove a tractor drawing a scraper; shortly before the accident he was transferred to Criggleston, and at Criggleston he was employed as a tractor driver drawing a scraper. Before entering the Respondents' employment the claimant had been engaged for about a year as a tractor driver drawing a scraper.
(10) The claimant had no mechanical training. He had no knowledge of scrapers other than what he had picked up by observation in the course of his said employment. Prior to 9th July, 1942, the date of the accident, he had never worked a 13-yard Le Tourneau scraper or any scraper containing a slide. He had never previously released a jammed slide. He was not acquainted with the mechanical working of the said scraper.
(11) The duty of tractor drivers drawing scrapers is to drive the tractor and to operate the levers and brakes thereon which by means of wire ropes control the movements of the scraper. To do this they do not require to leave the tractor. At Criggleston two fitters and a foreman fitter were provided whose duty it was to make repairs on the scrapers, and the claimant knew this. The tractor drivers are provided with keys for the tractor but they are not provided with keys for the scraper. It was proved, however, that on certain occasions the tractor drivers with the knowledge of their foreman or of fitters had made, without objection, minor running repairs on the...
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