Stephen v Cooper
| Jurisdiction | England & Wales |
| Judge | Lord Shaw,.,Lord Buckmaster,Lord Warrington of Clyffe |
| Judgment Date | 22 April 1929 |
| Judgment citation (vLex) | [1929] UKHL J0422-2 |
| Docket Number | No. 10. |
| Court | House of Lords |
| Date | 22 April 1929 |
[1929] UKHL J0422-2
House of Lords
Lord Chancellor.
Lord Shaw.
Lord Buckmaster.
Lord Warrington of Clyffe.
After hearing Counsel for the Appellant, as well on Monday the 4th, as on Tuesday the 5th, days of March last, upon the Petition and Appeal of John Frederick Stephen, Pauper, residing sometime at 59, Charlotte Street, Aberdeen, now at Rersehill, Montsolle, Strichen, 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 Second Division, of the 10th of January 1928, 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 Mrs. Isabella Birnie Cooper, lodged in answer to the said Appeal; and Counsel appearing for the Respondent, but not being called upon; and due consideration being had this day of what was offered for the said Appellant:
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 10th day of January 1928, complained of in the said Appeal, be, and the same is hereby Affirmed, and that the said Petition and Appeal be, and the same is hereby dismissed this House.
This is an appeal from an Order of the Second Division of the Court of Session, made upon a case stated in an Arbitration under the Workmen's Compensation Act, 1925. The facts are fully set out in the case stated by the learned Sheriff Substitute.
It appears that in September, 1925, the Appellant was working as a harvest hand in the employment of the Respondent, who is a tenant farmer, and that on the 28th September, 1925, he was driving a two-horse mower. The horses were yoked to the mower by straps passing from the breast-pole through the collar, so that the weight of the pole rested on the horses' necks, and by chains extending from a hook fixed at the swingletree to a hook attached to each side of the back band of each horse, and thence to its collar, on to which it was fixed by means of a hook. If any of the chains became detached it was the duty of the driver to refix it. The proper method of performance of this duty was to stop the machine, put the cutting blade out of action, twist the reins round the lever or hold them so that the horses were kept in check, dismount from the mower, walk round to the horses' heads, and from that point refix the chain on the hook.
On the morning of 28th September. 1925. while the appellant was driving the mower along the cornfield, the inside chain on the off-side of the near-side horse became detached. The appellant stopped the mower, but failed, or forgot, to put the cutting blade out of action, and thereupon he left his seat and commenced to walk along the sloping pole between the two horses towards the horses' heads, balancing himself as he went. As a result of this action, the horses were started forward and the Appellant lost his balance and fell on the cutting blade, sustaining serious injuries which resulted in his serious and permanent disablement The learned Arbitrator found that in balancing himself and walking along the pole the Appellant was aware that he was adopting a course accompanied by very serious risk and danger, and that his action was not done for the purposes of and in connection with the Respondent's business, but was a foolhardy act of bravado, and that the injury sustained by the Appellant was due to an accident caused by added peril, due to his own conduct.
The learned Arbitrator found in law on these facts that the injury sustained by the Appellant was not due to an accident arising out of his employment, and stated for the opinion of the Court the question whether there was evidence upon which he could so find. Another point was also raised in the case but was not opened or argued before your Lordships' House. The Second Division of the Court of Session answered the question in the affirmative.
In my opinion they were right in so doing. It was argued before your Lordships that the Appellant's conduct was serious and wilful misconduct, and that since it resulted in his permanent disablement it did not disentitle him to compensation. But it is well established by a series of decisions in your Lordships' House that, apart altogether from the question of serious misconduct, if the accident arises from some peril to which the workman has exposed himself by his own conduct, and which he was not obliged to encounter by any term of his contract of service, the accident cannot be said to arise out of his employment. Lord Dunedin states the principle in Plumb v. Cobden Flour Mills Co., 1914, A.C. 62, at p. 68, as follows:—
"The risk is not incidental to the employment if it is an added peril due to the conduct of the servant himself,"
and Lord Haldane explains the expression "added peril" in The Lancashire and Yorkshire Railway Co. v. Highley, 1917, A.C. 352, at p. 361, as meaning a peril "voluntarily superinduced on what arose out of his employment to which the workman was neither required nor had authority to expose himself." In my view, these expressions exactly fit the risk which resulted in the injury in the present case, and I regard the case as indistinguishable in principle from the decision in The Lancashire and Yorkshire Railway Co. v. Highley. In that case a workman in the employment of a railway company crossed the railway lines in order to reach a messroom at which he could get hot water for his breakfast and crept between the trucks of a stationary goods train in the mistaken belief that there was no engine attached; while he was doing this the train moved and he was killed. It was held in your Lordships' House that the workman was entitled to go to the messroom and entitled to cross the lines to get there, but that in passing between the trucks "he clearly added a peril to his employment to which the employer had given no sanction, with the result that the ensuing accident was not an accident arising out of his employment" (from Lord Dunedin's S., p. 365). I agree with the learned judges of the Court of Session in holding that there was ample evidence to justify the Arbitrator in finding that the principle of "added peril" applies to the present case and that consequently there was evidence on which he could properly find that the injury was not due to an accident arising out of the employment of the Appellant, and that he was not entitled to compensation under the terms of the Workmen's Compensation Acts.
It follows that this Appeal should be dismissed, and I move, your Lordships, accordingly.
My Lords,
I confess to having very great difficulty in this case.
It is a satisfaction to have the facts stated with such clearness and fulness in the findings of the learned arbitrator, Sheriff Laing, and it is clear from the note appended to his findings that he had given much consideration to the numerous authorities bearing upon the points for decision.
From the findings it appears that the Appellant was engaged as a harvest hand by his employer and was driving a 2-horse "Woods" mower, furnished with the usual central pole and drawn by a pair of horses. While driving the team, a chain hooked in the ordinary way to the back band of one of the horses became unhooked and had to be rehooked. The Appellant thereupon pulled up, stepped forward on the pole and leaned down-to refix the gear. In doing so the horses became restive and started, and in starting drew forward the mower, the cutting blade of which the Appellant had through inadvertence not put out of action, and his left hand was severed at the wrist and his right arm lacerated, and he is permanently disabled. I agree with the learned Judges of the Second Division and with all your Lordships that the accident arose in the course of the unfortunate man's employment.
I confess that if the arbitrator had found that it arose out of his employment, I should also have agreed with that, or at least have found no sufficient ground to disturb such a finding. He has, however, found to an opposite effect: the accident did not arise, according to his finding, out of the employment. The Second Division agrees with that and the point is, in my opinion, very fine and very difficult. In considering the effect of the act one cannot forget that, since the injury is permanent, the statute would have afforded a remedy to the Appellant, notwithstanding that his conduct had even been construed as serious and wilful misconduct. If, however, the accident did not arise out of his employment as well as in the course of it, this proviso flies off and no statutory remedy is provided.
It must be remembered that as I view the facts, this case is not governed by those in which there was a breach or defiance of either a statutory or an express prohibition. The citation of ( Barnes v. The Nunnery Colliery Company 1912 A.C., 44) is an illustration of what is meant. A boy employed at a Colliery, in proceeding to the level where his work was, jumped into an...
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