A watchman was employed to look after some trawlers while lying in a harbour, his duties extending from Saturday afternoon to Sunday afternoon, a period of 25 hours. He supplied his own food, which was sometimes brought him by members of his family. It was necessary for him at times to be on the quay. On Saturday night he went to an hotel a short distance from the quay, had half-a-glass of whisky and a glass of beer, and on returning to the quay proceeded to descend a fixed ladder to get on board one of the trawlers, when he slipped, fell into the water, and was drowned. He had only been absent at the hotel a short time.
Held (rev. judgment of the Second Division) that there was evidence to support a finding by an arbiter that the accident was one ‘arising out of and in the course of’ the employment; per Lords Ashbourne, Atkinson, and Shaw, on the ground that the watchman had returned to, and was within, the sphere of his duty when the accident occurred; and per Lord James, on the ground that the obtaining of refreshment was necessary for the fulfilment of his duty- dissenting the Lord Chancellor, on the ground that though the watchman had arrived within the ambit of his duty, he was not on the ladder in the course of it, but in returning to it; and Lord Gorell, on the ground that the duty of watching prohibited the watchman’s being away, and while he was entitled to be on the quay, there was no proof, the onus being on the claimant, that the watchman was there in connection with his duty. Authorities reviewed.
Observations, per Lord Shaw, approving and applying Henderson v. Glasgow Corporation, July 5, 1900, 2 F. 1127, 37 S.L.R. 857, to the effect that where an arbiter is of opinion that the question whether an accident is one arising out of and in the course of the employment is purely one of fact, he is entitled so to find and to refuse to state a case.
Judges:
Lord Chancellor (Loreburn), Lord Ashbourne, Lord James of Hereford, Lord Atkinson, Lord Gorell, and Lord Shaw of Dunfermline
Citations:
[1909] UKHL 901
Links:
Jurisdiction:
Scotland
Health and Safety, Personal Injury
Updated: 25 April 2022; Ref: scu.620587