(ii.) the wilful disobedience of the workman to an orderexpressly given, or to a rule expressly framed, for thepurpose of securing the safety of workmen, or
(Ui.) … ”.
If one adopts the method of approach suggested by Viscount Maughamin Noble v. Southern Railway Co. (supra) the Commissioner should haveput to himself only the -first two questions suggested by him as section 3(6) (ii) of our Ordinance does not. render it necessary to consider whetheror no the workman contravening any order was acting “ for the purposesof and in connection with the employer’s trade or business46/18
176Dhammananda Thero and Pemananda There.
The Commissioner having answered those two questions, the first in thenegative and the second in the affirmative, should have held in favourof the appellant. He misdirected himself when he proceeded to considerthe third question formulated by Viscount Maugham which* finds no placein a case governed by our Ordinance.
In going by the rope-sling instead of the net-sling Suppiah was, nodoubt, disobeying his master’s orders in that respect but he was notplacing himself outside the scope ocf his employment. He was at thetime engaged in performing his duty—going to the ship to have his nameregistered—and Was not “ engaged in a frolic of his own under thepretence of doing his master’s work ”. If the mere fact that at the timeof the accident the workman was doing an act in wilful disobedience ofthe employer’s order rendered the accident to be one not arising out of theemplyment, then the Legislature has failed to achieve its object increating an exception in section 3 (6) in respect of claims arising fromthe death of a workman, because the success of every claim depends onthe proof that the injury was caused by an accident arising out of theemployment.
Adapting the line of reasoning in Noble v. Southern Railway Co. (supra)to cases under our Ordinance I am of opinion that the Commissionershould have approached the consideration of the first issue by askinghimself first whether the accident arose out of the employment within themeaning of section 3, ignoring the prohibition with regard to the use of therope-sling. If he answered that question^ in the negative then the claimwould fail (vide Kelaart v. Piyadasa *). If he answered that in the affirmativethen it did not matter that the deceased met with his death because heacted in wilful disobedience of the prohibition regarding the use of therope-sling.
I set aside the order of the Commissioner and send the case back tohim for the assessment of compensation. The appellant is entitled tocosts of the proceedings before the Commissioner and the Costs of appeal.
Appeal allowed.