Leading Workers' Compensation Cases to 1st October, 1909, decided in United Kingdom.

Progress, Volume V, Issue 6, 1 April 1910, Page 199

Leading Workers' Compensation Cases to Ist October, 1909, decided in United Kingdom.

Compiled by J. W. Macdonald.

Posthumous Illegitimate Child. Orrell Colliery Co., Ltd. v. Schofieud 26 T.L.R. 569. — A workman was about to marry a girl pregnant by him but was killed by accident. It was held that the child born subsequently was a dependant. Section 4 sub-section 3 of our Act provides that if any child is born to a worker after his death that child shall be deemed to be a dependent of the worker in the same manner as i± born in his father's lifetime. On appeal to the House of Lords the judgment of the Court of Appeal upholding the County Court Judge's judgment was upheld. The principle upheld that an illegitimate child was made a member of the family in the same sense and to the same extent as a legitimate child. It followed that a posthumous illegitimate child was made a member of the family to the same extent as an illegitimate child actually born at the time of the death of the father.

Unexplained Accident. Marshall v. Owners op Steamship Wild Roses 25 T.L.R. 452.— An engineer on board a steamship left his berth one night saying that he would go on deck for a breath of fresh air. He was not seen again alive and next day his dead body was found in the water close to the ship. It was held that from these facts the Court could not draw an inference in order to enable his widow to recover compensation. The onus of proving the case rests upon the applicant, and if he leaves the case in doubt as to whether those conditions are fulfilled or not where the known facts are equally consistent with their having been fulfilled or not, he has not discharged such onus (Pomiret v. Lancashire & Yorkshne Bail Co. 1903), 2 K.B. 718). If the tacts are not equally consibtent the Couit must apply its knowledge of what happens in ordinary life and consider the probabilities oi the accident having happened in one way or other The Court would not draw any mfeience fioni the fact and the applicant had not dischaiged the onus of proof resting on her. If a member of the watch on board a ship disappeaied ttiere might be no difficulty in drawing such an inference, but the case o± a man who went on deck having no duty theie was totally different. The Court followed the deci&ion in Bender v. Owneis of s.s. Zent and s&. Banana that the mere fact that a sailor was di owned was not enough, because it was necessary to show not merely that the man was properly there, but that the accident arose out of his employment. ' ' Out of his employment ; ' was not identical with "In the course of his employment." Bender v. Owners op Steamship Zent, (1909) , 2 K.B. 41.— 0n the high seas in fine weather and in daylight the ship being steady the chief cook and baker on board a steamship disappeared. It was unlikely that his duties would lead him into danger. The ship had a 4ft. rail and bulwarks and there are evidences to show how deceased had fallen overboard he having last been seen at 5.35 a.m. going aft. It was held that on the ±acts the Court could not assume that the accident arose "out of" his employment, because it happened "in the course of" it and it was tor applicant to prove both these essentials, which had not been done. But if on a stormy night one of the watch was missing it must be inferred that he was washed overboard "in the course of" his employment, and that the accident arose "out of" his employment.

Incurring Danger for Own Purposes. Reed v. Gt. Western Railway Co. 26 T.L.R. 36. — An engine driver whose engine was taking in water walked across a siding to get from a friend on another

engine a book unconnected with his duties. While walking back he was killed by a track which was being shunted. It was held that the accident did not come out of and in the course of his employment. In this case the deceased was about his own business, not about the business of his employers. For the moment he had put himself outside the area of protection which the Legislature has carefully marked out. If a workman is injured when doing something for his own purposes and which is no part of his duty to do so, or at least is not necessary for the proper discharge of his duties he will not be entitled to compensation. But the workman is not deprived of his remedy by breaking off his work for a time for his own necessary conveniences, and accordingly when he stops work to get a drink of water or for fee i me purpose of personal inconvenience he will not be deprived of compensation. In Smith v. Lancashire and Yorkshire Railway Co. (1899), 1 K.B 141) no action was held to lie where a ticket collector for his own pleasure got on to the footboard ot a moving train to speak to a friend and was killed in jumping off; nor in Parkes v. Army and Navy Co-operative Society, Ltd., whe 1 c one boy was injured sliding down the handrail of the stairs while taking a messago to anothei pait of the building; nor in Smith v. Normanton Colliery Co, Ltd. (1903), 1 K.B. 20-i where a boy in a mine was dismissed from work and oidered to wait at the bottom of the pit until lie could be taken up but instead loiteiod elsewhere and was injured.

Serious and Wilful Misconduct. Breach of Rules. GtEokge r. Glasgow Coal, Co. 25 T.L.R. 57. — The appellant who was a bottomer employed at a midworking in a mine gave the signal to raise the cage and the engineman m pursuance of a rule of the mine was entitled in the absence of a further signal to raise the cage to the pithead. Without ascertaining whether the cage had stopped or not opened the gate and fell down the shaft. His act in so opening the cage was a breach of a rule of the mines against which he had been warned some days before. In an application for compensation the Court of first instance found he had been guilty of serious and wilful misconduct and accordingly not entitled to compensation. On appeal it was held that the question was one of fact and there was evidence to support the finding which has been decided by the Court below and not be affected by artificial presumptions of fact. Section 15 provides that no compensation shall be payable in respect of any accident which ib attiibutable to the serious and wilful misconduct of the worker injured or lulled. This case deals with the rule only from the standpoint of breach of rules made for the general safety of the worker. In all eases it lies upon the employer to prove that the injury was attributable to the serious and wilful misconduct of the workman. No general rule can be laid down and each case must depend on its own peculiar facts. The breach of a rule may provide the opportunity for the happening of an injury yet at the same time it does not follow that the breach of the rules will as a matter of course necessitate an increase or certainty of risk, e.g., as where a factory hand is forbidden to cross a particular part of the factory and while doing so is injured. Such disobedience would not of necessity constitute ' ' serious misconduct. ; ' The true rule is where there is a deliberate and unmistakable act of disobedience 1o an e^p-vs, order or where there is a deliberate breach of a law or rule which is framed in the interests of the. workmen and for the express purpose of securing their safety. A breach of such a rule will amount to serious misconduct. Accordingly, where a fireman was killed while breaking a rule that forbade leaving the footplate of the engine when in motion no compensation was awarded — Best v. London & S.D. Railway Go. (1907) 23 T.L.R. 471. A workman would be guilty of such misconduct who being warned of an existing and on-coming danger risks life and limb by not heeding the warning, as in John v. Albion Coal Co., Ltd.,

(1901) 18 T.L.R. 27, where a miner being warned at the first manhole that a journey of trams was coming persisted in continuing his walk and was killed at the seventh manhole

Burden of Proof. McDonald v. Owners of s.s. Banana 24 T.L.R. 887. — A donkeyman while returning to his ship fell off the gangway and wss knled. 'lne on!.- evidence as to now the accident happened was an entry in the jog book stating that while he was' returning on board ship from shore more or less the worse for liquor he refused the aid of the nightwatchman and policeman to assist him up the gangway and on reaching the top step suddenly overbalanced and fell over the gangway mainropes dropping and striking the iron girder. It was held that his widow could not recover compensation as she had not discharged the onus upon her of proving the accident arose out of and in the course of the employment as the evidence was equally consistent with deceased having gone a shore either on ship's business or upon his own business or without leave. The case failed as the applicant had failed to discharge the burden of proof as to the cause of the accident. If the applicant leaves the case m doubt as to whether the conditions essential to obtaining an award are fulfilled or not where the known facts are equally consistent with their having been fulfilled or not he has not discharged the onus which lies upon him In this case the evidence is quite consistent with the view that the accident happened in consequence of something which did not arise out or the employment. There was no presumption m favour of one view rather than anothei

Accident Caused by Cockchafer. Craske v. Wigan 25 T.L.R. 632.— An applicant must establish that the accident either arose out of something that he was doing in the course of his work or that his work placed him in a position of peculiar danger. It is not enough for him to say that he would not have met with the accident if he had not been at work. A lady's maid and sewing maid was one night sewing by electric light near an open window. A cockchafer flew into the room and in throwing up her hand to prevent its flying in her face, struck her eye so violent a blow with the knuckles of her thumb as to cause ultimately permanent injury to her eye and the loss, of her situation. It was held that the accident the risks of which was in no way incidental to the employment did not arise "out of" the emplqyment. The Court would not depart from its invariable rule, namely, to hold that it was not enough for the applicant to say that the accident would not have happened if he had not been in that particular place. The applicant must say that the accident arose because of something he was doing in the course of his work or because his work placed him in a position of peculiar danger. The following cases were quoted by counsel in support of the application, but decided by the Court to be inapplicable. Andrew v. Failworth 20 T.L.R. 429 where a man was working on a high scaffold and so placed by his employment in a position of special danger, where he was more likely to be struck by lightning than an ordinary inhabitant. Ghallis v. London & S.W. Eailway Co. 21 T.L.R. 386.— This case turned on the fact that it was well known to be an irresistible temptation to small boys to drop stones on to a train as it passed under a railway bridge. In this case a stone had passed through the glass at the top of the cab and struck the driver in the eye. It was held that the accident arose out of the employment as the risk of such an occurrence is one which may reasonably be looked upon as incidental to the employment of an engine driver, though it might not be incidental to other employments. (To be continued.)