DANUSKODY THEVAR, Applicant Appellant , and MICHAEL FERNANDO, Respondent

059-NLR-NLR-V-46-DANUSKODY-THEVAR-Applicant-Appellant-and-MICHAEL-FERNANDO-Respondent.pdf


Danuskody Thenar and Michael Fernanda.
169.
1915Present: Wljeyewardene J.
DANUSKODY THEVAB, Applicant Appellant, and MICHAELFERNANDO, Respondent.
708—Workmen’s Compensation, C 3/95/43.
Workmen's Compensation—Death caused by accident arising out of employment-—1Contravention of employer's orders—Scope of employment—Workmen’sCompensation Ordinance (Cap. 117) s. 3 (B) 2.
Where a labourer met with his death by an accident arising out of hisemployment, the fact that he acted in contravention of the orders of hisemployer would not debar a claim for compensation where the act wasdone within the scope of his employment.
T
HIS was an appeal from an order made by a Commissioner forWorkmen’s Compensation dismissing the appellant’s claim for
compensation in respect of the death of his son.-
The facts appear from the argument.
W. Thambiah for applicant, appellant—The deceased, Suppiah.was a labourer employed by the respondent in loading bags of tea leavesfrom lighter to ship. The bags were carried from lighter to ship bymeans of a “ rope ” sling worked by a crane. After loading theworkmen are expected to go on board ship, get their names registered,and leavethe ship by a gangway. The witnesses state that
the workmen had been warned not to go up to the ship in the “ ropesling. In contravention of this prohibition the deceased attempted toenter the ship by means of the “ rope ” sling and was killed. The questionthat arises is whether in view of this prohibition the applicant can claimcompensation under section 3 of the Workmen’s Compensation Ordinance(Chap. 117). It is submitted that there is not a serious and wilful mis-conduct here. The evidence is not clear that express orders were giventhat the workmen should not use the “ rope ” sling for entering the ship.The workmen had a habit of going up the “ rope ” sling and this wascondoned by respondent. It has been held that where a workmanleaves his place of work and' goes out and is injured on his way he isstill in the course of his business—Gane v. Norton Hill Colliery Co.1;Webber v. Wansborough, Ltd.2. In Plumb v. Cobden Flour Mills Co., Ltd.3,Lord Dunedin drew a distinction between a prohibition which limits thesphere of employment and a prohibition which only deals with conductwithin the sphere of employment. The burden of proving that workmanwas guilty of serious and wilful misconduct lies upon the employer—Johnson v. Marshall <6 Sons, Ltd.*. Further, where death occurs, wilfulmisconduct on part of workman is no defence—34 Halsbury (Hailsham ed.)872; Macgvire v. Galbot *; Noble v. Southern Railway Co.3; Moore{A. G.) &.Co. v. Donnelly T; and Kelaart v. Piyadasa 8 are cases which haveno application to the facts of the present case.
1 (1909) 2 K. B. 539.5 (1915) B. W. C. C. 555.
* (1915) A. C. 51.'8 (1940) A. C. 583.
• (1914) A. C. 62 at p. 67.7 (1921) 1 A. C. 329.
* (1906) A. C. 409 at p. 411.8 (1942) 43 N, L. R. 394.
170 WUEYEWABDENE J.—Dantukody Thcvar and Michael Fernando.
W. Jayawardene for defendant, respondent—The authorities citedfor the applicant do not apply to the facts of this case. The burden ofproof lies on the applicant. The accident did not arise “ out of and in thecourse of his employment ”. The crane had two slingB. The “ net *'sling alone was used for taking up workmen. Suppiah went up by the‘ ‘ rope ’' sling not for the purposes of his employment but to get to theship earlier and so get his pay earlier than his co-workmen. He wasacting purely in his own interests and not in the interests of his employer.The deceased workman took an unnecessary risk for his own purposes.The accident therefore did not arise out of and in the course of hisemployment. Oane v. Norton Hill Colliery Co. {supra) was distinguishedby the House of Lords in Lancashire & Yorkshire Railway Co. v.Highley l. See also Stephen v. Cooper *; Knowles v. Southern RailwayCo.3; and Noble v. Southern Railway Co. {supra), which was consideredby Howard C.J. in Kelaart v. Piyadasa {supra).
H. W. Thambiah in reply—As regards the burden of proof the re-spondent has admitted that, the accident arose “ in the course of ” theemployment but denied that it arose “ out of ” the employment.
Cur.' adv. vvlt.
March 27, 1945. Wueyewardene J.—
This is an appeal from an order made by a Commissioner for Workmen'sCompensation dismissing the appellant’s claim for compensation inrespect of the death of his son, Suppiah.
Suppiah was a labourer employed in the Colombo Harbour by therespondent in loading bags of tea leaves. The bags are carried up fromthe lighter to the ships in the harbour by means of a sling—described byone witness as “ merely a loop of a rope ”—worked by a crane. Whenall the bags have been sent to the ship, Suppiah and his co-workmen onthe lighter have to go on board the ship, get their names registered by aclerk and leave the ship by a gangway and go ashore in a boat providedby the respondent. On the day in question Suppiah clung to the lastload of bags carried by the rope sling. The deckman who was on board■ the ship saw Suppiah coming up on the loaded sling and gave orders forthe sling to be “ halted ”. Immediately afterwards, the bag to whichSuppiah was clinging got unloosened. Suppiah fell down with the bagand was killed.
Evidence was led before the Commissioner to show that a net slingwas used to convey labourers between the lighter and the ship and thatthey had been warned not to go up or down in an empty or loaded ropesling. There was evidence also to show that Suppiah had been warnedon this occasion too not to come up on the loaded sling. TheCommissioner has accepted that evidence.
The issues framed by the Commissioner at the commencement of theinquiry were—
Did the deceased Suppiah receive personal injury by accidentarising out of his employment under the respondent?
1 (1911) A. C. 352.* (1929) A. C. 570.
' (1937) A. C. 463.
WU.$Y E WABDENE J.—Danuskody Thevar and Michael Fernando.
171
(t>) Is the applicant a dependant of the deceased ?
(c) What compensation, if any, is payable by the respondent ?
The Commissioner answered issue (a) in the negative and issue (b) inthe affirmative and awarded no compensation to the applicant. Itwill be noted that the-parties were not at issue on the question whetherthe accident was “ in the course of the employrrient
In dealing with issue (a) the Commissioner held—
“ This case falls to be dealt with on the lines of the< three questionsframed by Lord Maugham in Noble v. Southern Railway Co.1. Theanswers are as follows: —
Looking at the facts proved as a whole including the order
given to the workmen not to use the loaded sling to go up tothe ships it must be held that the accident was not one whicharose out of the employment of the deceased under therespondent. Moore (A.G.) & Co. v. Donnelly2.
The answer to the first question is in the negative as the accident
was due to the deceased contravening an order given to himby the person who supervised his work by going up to the shipon the loaded sling.
The act of the deceased was not done for the purposes of and in
connection with his employer’s trade or business
The object appears to have been to get ashore as early as possibleafter the actual work of loading the bags of tea leaves had beenaccomplished …. It would have been different ifthe accident occurred when the deceased descended to thelighter from the ship in order to work expeditiously."
I may observe at this stage that in answering the third question theCommissioner appears to have considered the motive of Suppiah indisobeying the prohibition. Such a consideration is irrelevant as LordWright observed in Noble v. Southern Railway Co. (supra);—
“ The motive, in the narrower sense of the immediate urge inchoosing to go by the prohibited route is immaterial, whether it wasto save time or to save himself trouble. The test is objective anddepends on the fact that his proceeding to the station was within thesphere of his employment. ”
A large number of English cases was cited at the hearing before me.As was remarked by Earl Lorebum in Blair & Co., Ltd. v. Chilton s.
“ The Workmen's Compensation Act is an Act leading itself toinfinite refinement. The words of the Act itself rule in every case.Previous decisions are illustrations of the way in which Judges lookat cases, and in that sense are useful and suggestive; but I think weought to beware of allowing tests or guides which have been suggestedby the Court in one set of circumstances, or in one-class of cases, to beapplied to other surroundings, and thus by degrees to substitutethemselves for the words of the Act itself.
* 11940) A. C. 583.* (1921) I A. C. 329.
2 (1915) 8 Butterworiba' Workmen's Compensation Cases 324.
WIJEYEWARDENE J.—Datiu&kody Thevar and Michael Fernando.
172
Apart from the danger indicated above, a Court has to act cautiouslyin following the English decisions, as section 3 of the Workmen’sCompensation Ordinance is not identical with the corresponding provisionsof the English Acts which govern those decisions. It is, I think,desirable to examine the various statutory provisions made in Englandfrom 1906.
The Workmen’s Compensation Act of 1906 enacted: —
“ Section I (1). If in any employment personal injury by accidentarising out of and in the course of the employment is caused to a work-man, his employer shall, subject as hereinafter mentioned, be liable topay compensation in accordance with the First Schedule in this Act
“(2) Provided that: —
(•)
;
If it is proved that the injury to a workman is attributable to the
serious and wilful misconduct of that workman, any com-pensation claimed in respect of that injury shall, unless theinjury results in death or serious and permanent disablement,be disallowed.”
Under this Act one of the methods used to show that the injury wasnot caused by an “ accident arising out of the employment ” was byproving that the workman was doing some thing which he was prohibitedfrom doing. This gave rise to the distinction drawn in Plumb v. CobdenFlour Mills Co., Ltd. 1 between “ prohibitions which limit thesphere of employment, and prohibitions which only deal with conductwithin the sphere of employment”. It was held that it was only a"scope limiting prohibition” that prevented an accident from arisingout of the employment.
In Moore {A.Q.) & Co. v. Donnelly {supra) a miner, in the course of hisemployment fired a shot by means of a fuse and detonator and retired toa place of safety. The shot missed fire. Acting in contravention ofcertain Statutory Orders made under the Coal Mines Act, the minerreturned to the place of the shot in less than one hour, when the shotblew off in his face and disabled him permanently. It was there heldthat the miner was not entitled to compensation. Lord Birkenhead L.C.stated.: —
" On principle, no distinction can logically be drawn between aprohibition founded upon statute and one imposed by the employer toregulate the employment. .Where a prohibition for which
the employer is responsibly, in matters comparable to those underdiscussion, is brought clearly to the notice of the workman, his breachof it takes him outside the sphere of his employment, so that the riskin which he involves himself has ceased to be reasonably incidental tothat employment. ”
As a result of this decision, the Legislature amended the Law by anAct of 1923 providing that even in 6uch circumstances as those in MooreiA.G.) A Co. v. Donnelly {supra) the accident " shall be deemed to arise
' U914) A. C. 62.
WUEYEWARDENE J.—Danuskody Thenar and Michael Fernando.
173
out of and in the course of the employment ", if the act done by theworkman in contravention of orders was done by the workman “ for thepurposes of and in connection with his employer's trade or businessThat Act of 1923, was an amending Act to be read with the principal Actof 1906, and the relevant provision was contained in section 7 whichread: —
'* For the purposes of the principal Act, an accident resulting indeath or serious and permanent disablement of a workman shall bedeemed to arise out of and in the course of his employment, notwith-standing that the workman was at the time when the accident happenedacting in contravention of any statutory or other regulation applicable tohi6 employment or any orders given by or on behalf of his employer,or that he was acting without instructions from his employer, if suchact was done by the workman for the purposes of and in connectionwith his employer’s trade or business.”
In the new Act of 1925 the relevant provisions are as follows: —
Section I (I)—Same as section I (I) of the 1906 Act.
Proviso—(a)—Same as section I (2) (a) proviso of 1906 Act with aslight amendment.
Proviso (b)—Same as section I (2) (c) proviso of 1906 Act.
Section I (2)—Same as section 7 of the 1923 Act.
Wilsons and Clyde Coal Co., Ltd. v. M’Ferrin and Kerror M’avlay & another v. James Dunlop and Co., Ltd. 1 showthe scope of section I (2) of the Act of 1925. In the first case M’Ferrinand Henry, two miners, had to bring down a “nose” of coal by blasting.Each miner had to bore a hole, charge it with an explosive, stem it andthen light a strum. After stemming his hole M’Ferrin gave the usualwarning to all in the vicinity. He then lit his strum and went to a place ofsafety. Hearing a shot going off, M’Ferrin thought it was his, havingt forgotten temporarily there were two shots to go off. After a few minutesM’Ferrin went back to find out if his shot had brought down the coal.The shot which went off was Hendry’s shot. His shot had, in fact,misfired and went off in his face when he returned and injured himseriously. In returning within an hour he contravened the provisionsof a Statutory Order. Though the facts were similar to those in Moore(A.O.) & Co: v. Donnelly (supra) it was held that the workman wasentitled to compensation in view of section I (2). In the second caseM’Aulay, a miner, was engaged along with a fireman and another miner,in firing by electricity a series of shots in a mine. When one of the shotshad exploded, M’Aulay came from his place of safety and coupled thecable to the detonator of the next shot. At the time the fireman wasmoving the handle of his firing battery, which was still attached to thecable, to free some mechanism which had jammed. The shot explodedand M’Aulay was killed. There was a statutory mining regulation whichprovided that the person authorised in writing by the Manager to firethe shots should himself do the coupling. It was held that in couplingthe cable to the detonator, M’Aulay was arrogating to himself a duty
77.
174
WIJEYEWABDENE J.—Danuskody Thenar and Michael Fernando.
restricted to the authorized shot firer and that the accident did not ariseout of the employment and that section I (2) did not apply.
. I shall discuss now the case of Noble v. Southern Railway Co. (supra)relied on by the Commissioner. In that case the Court of Appeal hadto consider again the effect of section I (2) of the English Act. Noble,the husband of the claimant, was a fireman employed by the RailwayCompany, and attached to the locomotive depot at Norwood Junction.He was asked to go to East Croydon to carry out duties there. For thatpurpose he had to walk from the depot to Norwood Junction and thentake train to East Croydon. The recognized route from the depot toNorwood Junction was along a lighted footpath. There was anotherroute which was shorter along the lines of the Railway. That route wasa dangerous one and its use by the employees of the Company wasprohibited by written instructions which stated further that an employeeusing that route would be acting “ outside his employment ”. Noblewent along the prohibited route and was killed by an electric train.The decision of the House of Lords was in favour of the claimant. In thecourse of his judgment, Lord Porter said: —
“ The so-called prescribed route is not a limit outside which the manhas ceased to- be acting within his employment. He may indeed be-acting in contravention of his master’s orders, but except in this respecthe is not "going outside the sphere of his duties.”
Dealing^with the doctrine of “ added peril ” Viscount Maugham said:,—
■ “ It is clear that if the case comes within sub-section (2) the man willbe entitled to compensation notwithstanding the added risk which theman has run by his disobedience. That obviously is the very objectof the sub-section in the case of death or serious and permanentdisablement being caused by the accident.”:
The effect of this decision as may be gathered from the variousjudgments appears to me to be as follows:—The question has tol beconsidered first whether the accident arose “ out of and in the course.of the employment ” within the meaning of section I (I) of the Act. Inthe consideration of this question the Judge of the County Court shouldignore the order in contravention of which the workman was acting whenhe was killed or seriously injured. The order to be ignored may beeven one of such a nature as would have been held before 1923 to be a“ scope-limiting ” order. If the answer to the question so considered isin the negative then the claim fails. An instance given by Lord Atkinis that of a guard not employed as engine driver and injured whiledriving the train. His injury would not arise out of and in the courseof hiB employment, apart from the fact that his employers had made anexpress regulation that no guard was to drive an engine. Anotherinstance is afforded by M’Aulay & another v. Jamas Dunlop & Co., Litd.(supra). If the answer to the question is in the affirmative then thefurther question has to be considered whether in view of the contraventionof the order or regulation it is or it is not an accident arising out of theemployment. If the answer to that question is also in the affirmativethe claim succeeds. If the answer to this further question is in the-
WUEYEWABDENE J.—Danuekody Thevar and Michael Fernando.
175
negative, then the Judge must inquire whether the “ act was done bythe workman for the purposes of and in connection with his employer strade or business The inquiry should not be whether the act was■done for the purposes of and in connection with the workman’s job. Ifthe answer to that inquiry is in the affirmative then by seotion I (2) " the■accident shall be deemed to arise out of and in the course ^of the employ-ment ” and the claim will succeed. Otherwise the claim will fail.
In the above case Viscount Maugham stated concisely in anotherform the questions which the County Court Judge will have to answer: —
“ Looking at the facts proved as a whole, including any regulations
or orders affecting the workman, was the accident one whicharose out of and in the course of his employment ” ?
“ If the first question is answered in the negative, is the negative
answer due to the fact that when the accident happened theworkman was acting in contravention of some regulation ororder” ?
“ If the second question is answered in the affirmative was the act
which the workman was engaged in performing done by theworkman for the purposes of and in connection with hisemployer’s trade or business” ?
It was those three questions which the Commissioner thought he was■obliged to answer in considering the first issue in this case and he answeredthose questions: —
No.
Yes.
No.
It has to be considered whether the Commissioner was right in proposingto himself those three questions.
The relevant provisions of our Ordinance are: —
” Section 3. If personal injury is caused to a workman by accident■ arising out of and in the course of his employment, his employer shall
be liable to pay compensation in accordance with the provisions of this
Ordinance:
Provided that the employer shall not be so liable—
<“)
in respect of any injury, not resulting in death, caused by anaccident which is directly attributable to—

(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.
—r“
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.