WIJEYEWARDENE J.—-Perera V. Brown & Company.
1940Present : Wijeyewardene J.
PERERA v. – BROWN & COMPANY.
S. C. No. 859—Workmen’s Compensation.
Workmen’s compensation—Assault resulting in death—Accident—Course ofemployment—Workmen’s Compensation Ordinance, s. 3 (Cap. 117).
Where a workman died as the result of an assault committed by anotheroutside the premises where they worked together, in consequence of adispute that had arisen some days previously at the time of their commonemployment,—
Held, that death was caused by an accident within the meaning ofsection 3 of the Workmen’s Compensation Ordinance, but that theaccident did not arise out of or in the course of employment within themeaning of the section.
PPEAL from an order made on a claim under the Workmen’sCompensation Ordinance.
J. R. Jayawardene (.with him M. M. Kumarakulasingham), for applicant.
C. W. VanGeyzel, for respondent.
Cur. adv. vult.
April 15, 1940. Wijeyewardene J.—
The applicant-appellant is the widow of one Edwin Perera, a workmanemployed under the respondent firm.
The respondent firm, which has its head office in Colombo, entered intoa contract to instal a dynamo at the Borstal Institute at Watupitiwela.The firm sent a number of workmen including Perera to Watupitiwela.Perera was paid on an hourly basis, the hours of work being 8 a.m. to,5 p.m. When working at Watupitiwela, Perera received in addition adaily allowance of 50 cents to cover any extra expenditure he had to incurin living out of Colombo. The firm did not provide accommodation forthe workmen at Watupitiwela but informed them that they could makeuse of any accommodation available at the premises with the permissionof the authorities in charge of the premises.
WIJEYEWARDENE J.—Perera v. Brown Sr Company.447
On April 1, 1939, while Perera was attending to some work, one of hisfellow workmen asked for his screw driver. Perera searched for it andfound it missing. Shortly afterwards a small screw driver was found bya fellow workman of Perera in the possession of Soysa,^himself a workmanemployed at the premises. It is not clear from the evidence whetherSoysa was also a workman employed under the respondent firm. Thescrew driver was identified by several workmen as the property of therespondent firm and claimed by Perera as the one with which he worked.Soysa on the other hand claimed the screw driver as his own, but gave itto Perera and abused Perera and his fellow workmen, who said it was theproperty of the respondent firm. Nothing further happened till April 4.By noon that day, Perera finished his work and was arranging to returnto Colombo when his superior asked him to stay back until the machinewas tested. At 6 p.m. that day, Perera and some other workmen went tobathe. On their way back to their lines they went to a tea-boutique,where they met Soysa who threatened them again and attempted to hitPerera. They went back to their lines at about 6.50 p.m., and had theirmeals. Some time afterwards Perera got out when he was assaultedfatally by Soysa. He died the next day.
The questions of law to be considered in this appeal are: —
Whether Perera’s death was caused “ by accident ” within the
meaning of section 3 of the Workmen’s Compensation Ordinance;
Whether the injury was caused by accident (a) arising out of
Perera’s employment, and (b) in the course of Perera’s employ-ment.
There is no difficulty in answering question (1) in the affirmative in viewof the decision of the House of Lords in Board of Management of TrimJoint District School v. Kelly where Viscount Haldane, L.C., held that“ accident ” is a mishap unexpected by the workman irrespective ofwhether or not it was brought about by the wilful act of someone else.
There are numerous English decisions, which seek to elucidate the words“arising out of employment”, and “in the course of employment” butit is almost hopeless to try and reconcile them. It may, however, be takenas an accepted principle that these words in the section should be given anextensive interpretation. But even with such an interpretation could itbe said that Perera received his injury in the course of his employment?His work for the day- was over at 5 p.m. He was under no obligation tolive on the premises. It was merely a privilege conferred upon Pereraof which he could have availed himself or not as he pleased. Inremaining on the premises after the hours of work Perera was not doingsomething in discharge of a duty to the respondent firm directly orindirectly imposed upon him by his contract of service—vide St. HelensColliery Co., Ltd. v. Hewilson. Nor do I think that it could be statedthat the accident arose out of the employment. There is no evidencewhatever as to the immediate circumstances, which resulted in the assaulton Perera. It was admitted at the argument before me that Soysa wasindicted for murder but was found guilty of culpable homicide notamounting to murder. This could only be accounted for by the fact that> U074) -4. C. 667.* (1024) A. C. 50.
The Chartered Bank v. Rodrigo.
3oysa pleaded successfully (a) that he acted under grave and suddenprovocation or (b) that acting in the exercise of the right of privatedefence he exceeded the power given to him by the law or (c) that hecommitted the act without premeditation in a sudden fight. I shall,however, deal with this part of the case on the assumption that theassault was in some way connected with the suggestion that Soysa made adishonest claim to the screw driver. It cannot be said that employmentunder the respondent firm involved a special risk to be assaulted by aperson against whom a workman may make such a suggestion. It is arisk that any one may run. Perera by his employment did not exposehimself to a risk not incurred by an ordinary member of the public—videLee v. Breckman1 and Smith v. Stepney3. I think that Board of Manage-ment of Trim Joint District School v. Kelly (.supra) could be distinguished asjn that case there was some evidence of the unruly character of the pupilswith whom the deceased person had to deal and there was a finding bythe County Court Judge to that effect. It may perhaps be added thatin cases under the corresponding Statute in England, the County CourtJudge acts as an arbitrator and “ his award can, therefore, be set asideonly if it is apparent that there was no evidence to support it or if an errorin the law appears on the face of it
I dismiss the appeal but I make no order as to the costs of appeal.
PERERA v. BROWN & COMPANY