Thomas v Ocean Coal Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Buckmaster,Lord Blanesburgh,Lord Warrington of Clyffe,Lord Russell of Killowen,Lord Wright |
| Judgment Date | 15 November 1932 |
| Judgment citation (vLex) | [1932] UKHL J1115-2 |
| Date | 15 November 1932 |
| Court | House of Lords |
[1932] UKHL J1115-2
House of Lords
Lord Buckmaster.
Lord Blanesburgh.
Lord Warrington of Clyffe.
Lord Russell of Killowen.
Lord Wright.
After hearing Counsel, as well on Tuesday the 18th, as on Thursday the 20th, days of October last, upon the Petition and Appeal of Elizabeth Laura Thomas, Widow, of 9, David Street, Blaengarw, near Bridgend, Glamorgan, praying, That the matter of the Order set forth in the Schedule thereto, namely an Order of His Majesty's Court of Appeal, of the 25th of November, 1931, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order 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 the Ocean Coal 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 Order of His Majesty's Court of Appeal, of the 25th day of November 1931, complained of in the said Appeal, be, and the same is hereby, Reversed, and that Judgment be entered for the Appellant for the sum of three hundred pounds (300 l): And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by her in the Courts below, and also the Costs incurred by her in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the County Court of Glamorganshire, holden at Bridgend, to do therein as shall be just and consistent with this Judgment.
My Lords,
The Appellant is the widow of a man who, while in the employment of the Respondents, lost his life on April 17th, 1931, in the Respondents' Collieries through being crushed by a descending cage at the bottom of the pit. She claimed £300 as compensation under the Workmen's Compensation Act but her claim was rejected by the learned County Court Judge who sat as arbitrator, and his award has been upheld by the Court of Appeal.
The facts relating to the accident have been carefully found by the learned County Court Judge and are as follows:
(1) The deceased man was a hitcher; his work was to be in charge of the pit bottom, attend to the winding signals, close and open the gates, and help so far as necessary in getting full trams and empty trams into and out of the cages; his proper place was on the loading or full tram side of the pit bottom, but he was expected to assist in cases of emergency in dealing with empty trams on the other side of the pit.
(2) On the occasion in question, the deceased workman crossed the pit bottom to see to the proper working of empties towards the main road, and almost at once dashed back to cross under the descending cage towards his proper working side in order to be ready to receive that cage when it landed, but before he could get fully across the pit bottom the descending cage caught him and killed him.
(3) That the crossing and recrossing of the pit bottom were for the purposes of and in connection with the employer's business.
So to cross the shaft bottom was expressly prohibited by one of the general regulations made under the Coal Mines Act, 1911, which is in the following terms:
"No person shall attempt to go on or across the uncovered space of the shaft bottom, except for the purpose of working in the shaft bottom, and no person shall be allowed to work in such place unless the cages are stopped."
The effect of such a regulation is to restrict the operation of Section 1, Sub-section 1, of the Workmen's Compensation Act, because the forbidden act is by reason of its prohibition an act that does not arise out of and in the course of the workman's employment. In other words, if without the prohibition an injury might be held to be due to an accident arising out of and in the course of employment, should that accident be due to the forbidden act, it can no longer be so regarded. The effect of this result has been modified by Sub-section 2 of the Act of 1925, replacing the Act of 1923, which, omitting words not material to the present purpose, is as follows:
"Section 1.�Liability of Employers to Workmen for Injuries.
Sub-section (1): If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the provisions hereinafter contained.
Sub-section (2): For the purposes of this Act, an accident resulting in the death, or serious and permanent disablement, of a workman shall be deemed to arise out of and in the course of his employment, notwithstanding that the workman was, at the time when the accident happened, acting in contravention of any statutory or other regulation applicable to his employment�. if such act was done by the workman for the purposes of and in connection with his employer's trade or business."
Now at first sight it would appear that the words of this statute are open to the interpretation that, in case of death or serious and permanent disablement owing to a prohibited act, there is substituted for the inquiry as to whether the accident arose out of and in the course of the employment another and a different test, namely, whether the act causing the injury was done by the workman "for the purposes of and in connection with his employer's trade or business."
This interpretation has, however, been rejected by this House in the case of Garallan Co. v. Anderson, 1927, A.C. 59, and even more expressly in Wilson's Clyde Coal Co. v. McFerrin, 1926, A.C. p. 377, where Lord Dunedin clearly stated at p. 385 that such an interpretation was obviously untenable, and that the true view of the statute was that it must first be ascertained if, disregarding the prohibition, the injury was due to an accident arising out of and in the course of the employment and then the effect of the prohibition in removing the accident from that category might be annulled if the later condition as to the act being for the purposes of the employer's business were fulfilled.
The distinction is critical in the present case. The finding of the County Court Judge is clear, nor indeed could it well have been otherwise, that the act of the workman was for the purposes of the employer's business and we are therefore thrown back to the consideration of whether, if the regulations had not existed, the accident arose out of and in the course of employment.
This consideration shows that the reliance placed by Mr. Upjohn on the case of McFerrin, 1926, A.C. 377, was mistaken. In that case a man, contrary to regulation, went to inspect a charge shortly after it had been fired, believing it to have been discharged. He was mistaken in his belief and was injured by its delayed explosion.
That, apart from the prohibition, the injury was due to an accident arising out of and in the course of his employment was plain, and all that was left was to consider if the act was done for the purposes of and in connection with his employer's trade or business, and as this was equally plain the workman's right to compensation was secure, but that does not cover the present case.
The learned County Court Judge, whose award was upheld by the Court of Appeal, has rightly proceeded along the lines I have indicated, but it is his final investigation as to whether the accident arose out of and in the course of the employment that has caused me the gravest difficulty. He has not held as a matter of fact that the accident did not so arise, but he has reasoned himself to this conclusion in the belief that he was so constrained by reason of the authority of Stephen v. Cooper, 1929, A.C. 590.
The workman there had, without putting the knives out of action, walked along the pole of a mowing machine in order to adjust the harness of one of the horses, which had become detached, and the horses, starting, had thrown him under the knives which had caused him serious injury. The Arbitrator had found that the Act was not done in connection with the Respondent's business, but was an act of bravado, and was not due to an accident arising out of and in the course of his employment. The decision did no more than say that there was evidence on which the Arbitrator could so find, but the doctrine of an "added peril" was referred to by Lord Hailsham, as appears at p. 574, where he says "There was ample evidence to find 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 employment."
I agree with the Master of the Rolls in thinking that such a phrase is not a touchstone whereby to determine whether or not the man was acting within his employment, and it would, I think, be unfortunate if this phrase got crystallised into a form of test and an accident should be looked at according to the meaning of these words instead of relying, as reliance must be placed, upon the words of the Act of Parliament.
This is clearly expressed by Lord Dunedin in the case of Plumb v. Cobden Flour Mills, 1914, A.C. p. 62, at pp. 65 and 66, where he said:
"It is often useful in striving to test the facts of a Particular case to express the test in various phrases, but such phrases are merely aids to solving the original question and must not be allowed to dislodge the original words. Most of the erroneous arguments which are put before the...
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