Scottish Court of Session Decisions

The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), section 1 (1), provides — “If in any employment to which this Act applies 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 first schedule to this Act.”

Mrs Ann Boyle or Hendry brought an arbitration before the Sheriff-Substitute of Lanarkshire at Glasgow ( Davidson), under the Workmen's Compensation Act 1897, against the Caledonian Railway Company for compensation in respect of the death of her husband Samuel Hendry.

The Sheriff-Substitute refused to grant compensation, and Mrs Hendry appealed by stated case.

The case set forth the following facts:—“1. That on 17th August 1906, the Caledonian Railway had a contract with John Maclean, fish stevedore, Glasgow, for the porterage of fish delivered at their station at Gushetfaulds.

2. That up to the said date, and for several years prior thereto, the deceased Samuel Hendry was employed by the said John Maclean as a fish porter.

3. That his average earnings amounted to 19s. per week.

4. That he was paid by the day, and not under contract, to attend at the railway station at any particular time, but that he had for a long period done so regularly, and was looked on by the said John Maclean as a regular workman.

5. That he and other porters who attended at the station were paid by the

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said John Maclean whether there was fish to carry or not.

6. That on the above-mentioned date the said deceased Samuel Hendry attended at Gushetfaulds Station, in usual course, to await the arrival of a fish train due about 7·10 a.m.

7. That after reaching the siding at which the fish were customarily discharged, and before the arrival of the fish train, he walked along the line of rails, a distance of at least 400 yards, to a point of the main line of the Caledonian Railway, where he was run down by an engine and killed instantaneously.

8. That the spot at which he was killed was in the near neighbourhood of a shunter's bothy, to which the porters in Maclean's employment were in the habit of repairing, in order to find out the number of fish boxes which were expected, a telephone message to that effect being in use to be sent to the said bothy.

9. That in cold weather the porters occasionally repaired to the said bothy to warm themselves at a fire which was kept burning there.

10. That the deceased Samuel Hendry had not reached the bothy before he met with his death, but was undoubtedly proceeding towards it at the time.

11. That in order to reach the bothy the porters required to walk along the main line and cross a fence, neither of which acts they had a right to perform, but that they were never checked by any official of the Caledonian Railway Company for trespass.

12. That it was the duty of the fish porters (including the deceased Samuel Hendry) to unload the fish trains which arrived in the morning at Gushetfaulds Station, and immediately thereafter to proceed to St Enoch's Station for a similar purpose, and that the unloading at St Enoch's was usually completed about 11·30 o'clock a.m.

13. That the information as to fish trucks above referred to was not got at the instance of the said John Maclean, nor was it of any use to him or to the porters themselves in the carrying out of the work of stevedores.

14. That neither the deceased Samuel Hendry nor any of the other fish porters were ever instructed by anyone to go to the bothy to inquire as to the number of fish boxes on transit.”

In the above circumstances the Sheriff-Substitute found—“(1) That the deceased Samuel Hendry was a workman in the employment of the said John Maclean at the time of his death. (2) That as regards the work of fish porterage performed by the workmen of the said John Maclean, the Caledonian Railway Company were undertakers within the meaning of the Workmen's Compensation Act at that date. (3) That at the time of his death the deceased Samuel Hendry was not in the course of his employment.”

The question of law for the opinion of the Court was — “Did the accident by which the deceased Samuel Hendry received personal injury, from which he died, arise out of and in the course of his employment within the meaning of section 1 of the Workmen's Compensation Act 1897?”

Argued for the appellant—The deceased had been killed in the course of his employment. Findings 8 and 12 were not quite consistent with 13, but the three taken together and reasonably read showed that, although perhaps not absolutely necessary, it was at any rate reasonable and natural for the deceased to go to the bothy to find out the number of boxes expected. That was sufficient, the Court having repeatedly held that the benefits of the Act extended to workmen injured while doing anything which was in any way reasonably connected with their work. The present case was far more favourable for the workman than, e.g., the case of Goodlet v. Caledonian Railway Co., July 10, 1902, 4 F. 986, 39 S.L.R. 759, where compensation had been allowed. The present case was quite different from Smith v. Lancashire and Yorkshire Railway Company, [1899] 1 QB 141, where the workman was following a private purpose.

The respondents were not called upon.