BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kinghorn v. Guthrie [1913] ScotLR 863 (18 July 1913) URL: http://www.bailii.org/scot/cases/ScotCS/1913/50SLR0863.html Cite as: [1913] SLR 863, [1913] ScotLR 863 |
||
[New search] [Printable PDF version] [Help]
Page: 863↓
[Sheriff Court at Edinburgh.
George Anderson & Company (1905), Limited v. Adamson., July 12, 1913, 50 S. L. R. 855, distinguished.
Held that a carter who while leading a horse and lorry out of his employer's yard in the course of his employment was struck by a piece of corrugated iron blown by a high wind off the roof of an adjoining building, was not injured by an accident “arising out of” his employment.
Peter Guthrie, carter and salesman, Leith, respondent, having claimed compensation under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) from James Kinghorn, trading as R. L. Thomson & Company, firewood merchants, Leith, appellant, the matter was referred to the arbitration of the Sheriff-Substitute at Edinburgh ( Guy), who found the respondent entitled to compensation, and at the request of the appellant stated a Case for appeal.
The Case stated—“This is an arbitration in which the respondent claims compensation from the appellant in respect of injuries received by the respondent by accident which he alleges arose out of and
Page: 864↓
in course of his employment with the appellant. The appellant is a firewood merchant and carries on business at 47 West Bowling Green Street, Leith. The appellant's premises consist of a large yard on which stands his firewood factory, and are reached from West Bowling Green Street by a private passage 17 to 22 feet wide. The said passage and yard are much exposed to high winds and are surrounded by unsubstantial buildings. On the day on which the accident occurred—26th November 1912—the wind between three and four o'clock in the afternoon blew at the rate of 52 miles an hour or thereby on the top of Blackford Hill, 4 miles distant and 500 feet higher up than said yard. No evidence was adduced as to the velocity of the wind in the appellant's said yard and passage or cart entrance. On said date the respondent, who was a carter and firewood salesman to the appellant, was leaving the said premises in charge of a horse and lorry loaded with firewood for sale, and while he was still within the appellant's said yard he was struck by a sheet of corrugated iron which was blown off the roof of an adjoining building, a distance of about 70 feet. Said roof had blown off three or four times in the last few years, and on the occasion in question twenty-eight sheets of the said corrugated iron which formed the roof of said building fell into the appellant's yard, and three or four sheets were blown into West Bowling Green Street. The respondent's head was cut, three of his ribs were fractured, and he was otherwise injured. The respondent had been out all day with his horse and lorry, along with a boy in the appellant's employment whose regular duty it was to assist him. The accident happened between three and four o'clock in the afternoon, and immediately after it the appellant sent said horse and lorry loaded with firewood out in charge of two young boys. I found that the said accident arose out of and in the course of his employment, that since the date of the accident the respondent has been and still is incapacitated for work as the result of the accident, that his average weekly earnings for the twelve months prior to the accident were £1, and accordingly found the appellant liable to the respondent in compensation at the rate of 10s. per week, and awarded compensation accordingly from 26th November 1912.” The question of law was—“Did the accident which the said Peter Guthrie sustained on 26th November 1912 arise out of his employment with the said James Kinghorn within the meaning of the Workmen's Compensation Act 1906?”
Argued for the appellant—The accident did not arise “out of” the respondent's employment. The employee here had been subjected to a general public danger— a high wind; and in such cases it was necessary to show something in the employment of the workman which made him subject to a greater risk than a member of the public. The present case was different from that of George Anderson & Company (1905), Limited v. Adamson, July 12, 1913, 50 S.L.R. 855, founded on by the respondent, in which it was admitted that the pursuer, who had been struck by a slate blown off a roof by the wind, was at the time in the course of his employment stooping over a large wheel and therefore did not see the slate coming. In other cases of the same class it had been held that compensation was not payable— Rodger v. Paisley School Board, 1912 S.C. 584 49 S.L.R. 413; Blakey v. Robson, Eckford, & Company, Limited, 1912 S.C. 334, 49 S.L.R. 254; Murray v. Denholm & Company, 1911 S.C. 1087, 48 S.L.R. 896; Craske v. Wigan, [1909] 2 KB 635; Amys v. Barton, [1912] 1 KB 40. As illustrations of cases within the class where there was something in the nature of the employment at the time which exposed the workman to special risk appellant cited M'Neice v. Singer Sewing Machine Company, Limited, 1911 S.C. 12, 48 S.L.R. 15, and Challis v. London and South-Western Railway Company, [1905] 2 KB 154.
Argued for the respondent—The present case was ruled by George Anderson & Company (1905), Limited v. Adamson, cit. sup. In both cases the accident was due to the same storm, and in both was caused by something being blown off the roof of an adjoining building. In the present case the man was taking charge of a horse and lorry in the course of his employment, and that prevented him seeing. The case of M'Neice v. Singer Sewing Machine Company, Limited, cit. sup., was an authority in respondent's favour.
Now these being the facts of the case, and the only material facts, the Sheriff-Substitute has reached the conclusion that this accident arose, not merely in the course of the employment, which is admitted, but out of the employment of the respondent. I am quite unable to assent to that view. I adopt the language of the Master of the Rolls in the case of Craske v. Wigan, [1909] 2 KB 635, where he says—I think it would be dangerous to depart from that which, so far as I am aware, has been the invariable rule of the Court of Appeal since these Acts came into operation, namely, to hold that it is not enough for the applicant to say—‘The accident would not have happened if I had not been engaged in that
Page: 865↓
I put the question that was put by the Lord President in the case of Rodger ( 1912 S.C. 584)—What were the special risks incident to the employment of this workman? I should have thought the risk of being kicked by his horse, or of being injured in the course of driving his horse through the traffic along the streets; but certainly no one would have said that one of the risks of his employment as a carter was that a piece of corrugated iron might come down from a neighbouring building seventy feet away and hit him on the shoulder and face. That is not what one would describe as an ordinary risk. It is an extraordinary occurrence—a thing that might occur when a great gale is blowing. The workman is not specially exposed to that risk because of his employment. It may be that the locality is one which is windy, or it may be a locality where the houses are less substantial than they are in other parts of the town; but that is not a risk arising out of his employment, for any person frequenting the yard would be exposed to exactly the same risk. It is, of course, true that he would not have met with the accident unless he had been in that particular place, and that he would not have been in that particular place unless he had been engaged in that particular employer's work; but as the Master of the Rolls said, that is not enough; you must point to something in the nature of the employment that makes you peculiarly liable to a risk of that kind.
Now the only case that presents some difficulty at first sight is the case to which we were referred— Anderson v. Adamson— in which the First Division held the other day that an accident occurring through a slate falling on a person who was working in a back-green was, upon the admitted facts of the case, an accident arising out of the employment. But then we have not the same facts admitted in this case as were admitted there. The two facts which were admitted there, and which seem to me to differentiate this case entirely from that of Anderson, are, in the first place, that the man there was stooping over his work and was therefore unable to avoid a danger from above; and, in the second place, that other workmen who were in the same place, but who were not compelled to stoop, were able to avoid, and did in point of fact avoid, exactly the same danger to which he succumbed. It was held by the First Division that the workman's special employment had appreciably increased the risk of accident of this particular kind; and upon that ground, although the Court thought it was a narrow case, they did not interfere with the decision at which the Sheriff had arrived.
The present case is quite distinguishable from that of Anderson; and we would be opening the door very wide—it has already been opened pretty wide in workmen's compensation cases—if we were to hold that because a man is employed in a particular place, therefore any accident which occurs to him in that place because of the nature of its surroundings is an accident arising out of his employment. I think that would be going a great way beyond any of the decided cases. I have therefore no difficulty in holding that we should sustain the appeal, and hold upon the facts stated that the Sheriff was not entitled to find in law that the accident to the respondent arose out of his employment.
Special risk may be one or other of three kinds. It may be owing to the nature of the employment at the time. All that can be said about that is, that at the time the respondent was in charge of his employer's horse and lorry, and it was said that he was therefore not in a position to attend to his own safety in the same way as an ordinary passer-by would be able to do. I do not see, in relation to the kind of accident we have here, that the finding in fact justifies the inference which Mr Chisholm
Page: 866↓
Second, you may have special risk owing to the general nature of the man's employment; but in relation to the accident here there was no special risk due to his employment as a lorryman. In the third place, you may have special risk arising from the place where the accident happened. We are told that the adjoining roof had blown off three or four times within the last few years, but it is not said that on these previous occasions any part that was blown off fell into the place where this man was injured. I therefore think, without questioning the judgment in Anderson v. Adamson, that the question should be answered as Lord Salvesen proposes.
The Court answered the question of Jaw in the negative.
Counsel for the Appellant— Moncrieff, K.C.— C. H. Brown. Agents— Cairns & Robertson, S.S.C.
Counsel for the Respondent— Chisholm, K.C.— A. A. Fraser. Agent— Sterling Craig, S.S.C.
