KELAART v. PIYADASA

089-NLR-NLR-V-43-KELAART-v.-PIYADASA.pdf


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HOWARD C.J.—Kelaart v. Piyadasa.
1942Present: Howard C.J.
KELAART v. PIYADASA806—Workmen’s Compensation C3/59/40.
Workmen’s compensation—Scope of employment—Disobedience of orders—Act not done for purposes of, or in connection with, employer’s business—Liability of employer—Ordinance No. 19 of 1934 (Cap. 117). s. (3b).The deceased, A, was employed by the respondent, a contractor,who was engaged in building tanks for the Shell Company. A. wasemployed as a labourer to bring water and supply tools to the workmen.The tank was 25 feet high and the stage was 7 feet high.
A was employed outside and was prohibited from going up to thestage as he was suffering from hernia. Moreover, his duty was to putthe tools in the bucket, which was drawn up by a rope.
On the day in question, the deceased went up to the scaffolding' to askanother workman for a chew of betel. Whilst on the scaffolding, hecried out in pain, lost his balance, fell down on to an iron sheeting anddied as a result.
Held, that A, when he got on to the scaffolding, took himself out of thescope of his employment and as the accident took place before heresumed employment, the act was not done for the purposes of, or inconnection with, his employer’s business.
A
PPEAL from an order of the Commissioner of Workmen’s Compen-sation.
G. Thomas, for the applicant, appellant.
S. Alles (with him J. E. A. Alles), for the employer, respondent.
Cur. adv. vult.
June 2, 1942. Howard C.J.—
This is an appeal against the judgment of the Commissioner ofWorkmen’s Compensation, Colombo, delivered on November 5, 1941,dismissing the applicant’s claim for compensation with costs. Theapplicant claimed compensation on behalf of his brother, Sirisena, a minor,arising out of the death of his father, one J. A. Aron Singho, a workmanemployed by the respondent. The latter was a contractor and at thetime of the accident, which resulted in the death of Aron, was engaged inbuilding tanks at Kolonnawa for the Shell Company. The respondent,in giving evidence, stated he kept a book (R 3) in the course of his businessand this book gave the names of his workmen, the dates on which they
HOWARD C.J.—Kelaart V. Piyadasa. ..395
worked and the rates of pay. He employed rivetters, blacksmiths, jolly-men, coolies and litters. Aron was styled as a coolie and, according tothe respondent, he was employed to bring water and supply tools tothe workmen. The tanks are 25 feet high. The stage was 7 feet up.There were two stages inside the tank and two stages' outside. On theday of the accident, June 18, 1940, three workmen were working on theinside and two others with the respondent outside. According to therespondent, Aron, who suffered from hernia, had been prohibited by himfrom going up on to the stage. Moreover, coolies had no business on thestage. Aron’s duty was to put the tools in a bucket and the bucket wasdragged up by a rope. Aron, according to the evidence of the respondentand another workman called Thomas, came up on to the scaffoldingto ask the latter for a chew of betel. According to the respondent andThomas, whilst on the scaffolding he cried out in pain, seized his testicleswith both hands, lost his balance and fell down on to an iron sheeting onthe ground. Aron died the same day. An inquest was held on his bodyand the Coroner found that death was due to concussion of the brain andfracture of the base of the skull, and that this was caused by the fall fromthe scaffolding. The evidence of the respondent and two workmen,Thomas and Richard, was to the effect that Aron was employed as acoolie on the ground and had no business on the scaffolding, which hadbeen prohibited. On the other hand, two workmen called Dharmadasaand Perera maintained that Aron was a fitter or rivetter and used towork on the scaffolding. Perera also stated that when the accidentoccurred Aron, in the course of his duty, was on the stage with three others.The stage was lowered and it stopped on a bolt. Aron was asked to clearit and fell down in doing so. It will, therefore, be seen that there was aconflict of evidence as to the nature of Aron’s duties and the manner inwhich he met with the accident. The Commissioner has accepted theevidence of the respondent, that the applicant was merely doing the workof a casual labourer and his duties did not involve mounting the scaffold-ing. I am not prepared to say that, in coming to this conclusion, theCommissioner was wrong.
The Commissioner then proceeded to hold that in climbing the scaffold-ing the deceased was undertaking a risk which was not one of the ordinaryrisks of his employment and he could not, therefore, regard the accidentas arising out of the course of his employment. He, therefore, held thatthe case for the applicant failed.f
In holding that the accident did not arise out of the course of thedeceased’s employment, the Commissioner has been guided by thedecision in The Lancashire and Yorkshire Railway Company v. Highley This case, it is interesting to note, was decided before the law was amendedby the Act of 1923, to enable the dependents of a workman to obtaincompensation in the case of injuries resulting in death, although at thetime when the accident happened the workman was acting in contraven-tion of a statutory or other regulation applicable to his employment or oforders given by or on behalf of his employer. A provision on similarlines to this amendment is to be found in section 3’ (b) of the Workmen’sCompensation Ordinance (Cap. 117). There are numerous decisions
1 11917) A. C. 352
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• HOWARD C.J.—Kelaart v. Piyadasa.
which deal with problems very similar to the one with which I am dealing.
It is no easy matter to thread one’s way through this jungle of case law.The law received full and comprehensive consideration in the recent caseof Noble v. Southern Railway Company In that case, the deceased waskilled by an electric train. He was in the employment of the respondentsas a fireman and attached to the locomotive depot at Norwood Junction.He was employed in piloting duties, meaning that when a driver did notknow the railroad, he had to travel in the engine cab arid show it to him.About midnight on August 24, 1938, he reported at the engine shed andwas then told to go to East Croyden, travelling as a passenger fromNorwood Junction Station by a train due to leave at 12.25 a.m. Tocatch that train he had to walk to the Junction Station. There is arecognized route to that place, which has been specified as the right waysince the locomotive depot was opened in 1925. The distance alongthis route, which was adequately lighted at night and perfectly safe, was1,002 yards. There was, however, a short cut along the lines of therailway, the total distance of which was 841 yards. This route wasdangerous because of live rails, various obstructions and electric trains.It was not lighted at night and its use by employees of the respondentswas strictly prohibited. The deceased took this route and was killedabout 12.14 a.m. by an electric train coming up behind him. He waskilled when he had departed from the recognized and safe route and waswalking along the highly dangerous route in close proximity to the railsused by electric trains. He was in a place where the respondents hadexpressly forbidden him to go. He was doing a prohibited act, involvingan added risk, in a place where he was by the prohibition forbidden to go.In his judgment, Viscount Maugham said that three questions had to beanswered as follows : —
“ First, looking at the facts proved as a whole, including anyregulations or orders affecting the workman, was the accident onewhich arose out of, and in the course of, his employment ?
Secondly, if the first question is answered in the negative, is thenegative answer due to the fact that when the accident happenedthe workman was acting in contravention of some regulation ororder ?
Thirdly, if the second question is answered in the affirmative, was theact which the workman was engaged in performing done by the work-man for the purposes of, and in connection with, his employer’s trade orbusiness ? ”
Viscount Maugham then went on to say that what has been describedas the doctrine of “ added peril ” was not' the ratio decidendi in anydecision of the House of Lords. Regulations and orders applicable to aman’s employment are designed simply to prevent added perils beingoccasioned to him and his fellow workmen in that employment. It wasclear, however, that, if the case came within the amendment to which Ihave referred, the man will be entitled to compensation, notwithstandingthe added risk which the man. had rim by his disobedience. The 1
1 (1940) A. C. 583.
HOWARD C.J.—Kelaart v. Piyadasa.397 _
“added peril” test was, therefore, quite inapplicable. ViscountMaugham then proceeded to answer the three questions as follows : —
The accident did not arise out of the employment. The man
was given a safe route but chose to take one which wasprohibited because of its dangers : Moore (A. G-.) & Co. v.Donnelly
The negative answer to the first question was due to the fact
that the accident to the workman occurred on his employer’spremises while he was contravening the regulations as to theproper route from the engine house to the station. The answerto the second question was in the affirmative.
Vi) This question was also answered in the affirmative. There was nosuggestion that the deceased deviated from the safe route tofulfil any purpose of his own. He was walking along the linefor no other purpose except to catch the 12.25 a.m. train toEast Croyden. He was still on the respondent’s premises andwas going about his allotted job.
Ip this case, I think the first two questions must be answered in thesame way as in Nobel v. Southern Railway Co. (supra). With regard tothe third question, can it be said that when the deceased got on thescaffolding to get a chew of betel he was engaged in performing an act forthe purpose of, and in connection with, his employer’s trade or business.In order to come to a decision on this point, I need only refer to two cases.In Knowles v. Southern Railway Company =, the respondent railwaycompany had a rule that “ employees must not consume intoxicatingliquor while on duty ”. This rule was well known to the company’semployees, including the deceased man, a carter, whose duty it was todrive a pair-horse van. On the day of the accident giving rise to theclaim for compensation, while he was taking a load from one depot toanother, he stopped his yan outside a public-house, descended from the boxseat, and having put a chain on the near side wheel and removed a tracehe went some distance up a side street to a public house for the purpose ofgetting a glass of beer and also for the purpose of using the lavatory, butthe County Court Judge found as a fact that the man’s dominant purposewas to drink the beer. On his return to the van, he removed the chain,replaced the trace, took the reins in his hands, and was in the act ofmounting to his seat when, probably owing to the horses starting to move,he slipped and fell under the wheel and sustained injuries which causedhis death. On a claim for compensation by his widow, it was held (1) thatthe accident did not arise in the course of the deceased’s employment,seeing that it happened before he had completed the series of acts^-unchaining the wheel, refastening the trace, taking possession of thereins—-which owing to his breach of duty, had to be performed beforehe could regain effective control of the horses for the purpose of re-starting them ; and (2) that the accident could not be deemed to havearisen out of, and in the course of, the deceased man’s employment withinthe meaning of section 1, sub-section 2, of the Act inasmuch as the act
1 (19-21) 1 A. O. 329.1 (1937) A. C. 463.
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he was doing in contravention of a regulation applicable to his employ-ment was attempting to regain his seat on the van as one part of acomposite act of consuming intoxicating liquor while on duty, which act,being expressly forbidden by the terms of the employment, could not hesaid to be an act “ done by the workman for the purposes of, and inconnection with, his employer’s trade or business ” within the meaningof the sub-section. In his judgment, Lord Russell of Killowen says asfollows : —
“ I agree with the view expressed by Greene L.J., namely, thatwhere a man leaves his work to break a rule, he necessarily takeshimself out of the scope or sphere of his employment and remainsoutside its limits till the time when he resumes his employment.”
Further on, the learned law Lord states —
“ Taking the view which I take on these two preliminary points,
I am of opinion that, from the moment that the workman left the. driver’s seat, as the first step towards the ‘ Gladstone he broke off hisemployment.”
In Davies v. Gviauncaegurwen Colliery ’, in contravention of his employer’sexpress orders, a workman unnecessarily went into a prohibited area tohang up his coat, and on turning round to return to his proper workingplace fell into a hole and was fatally injured. His widow claimedcompensation, contending that the workman’s acts of hanging up hiscoat and returning towards his work were acts done “ for the purposes, of,and in connection with, his employers’ trade or business ”, so that undersection 7 of the Workmen’s Compensation Act, 1923, the fatal accidentwas to be “ deemed to arise out of, and in the course of his employment,notwithstanding that the workman was …. acting in contra-vention of ” his employers’ orders. The Deputy County Court Judgeheld that the acts were done for the workman’s own purposes and not forthe purposes of, or in connection with, his employers’ trade or business,so that section 7 did not apply. On the widow’s appeal, it was held thatthe Deputy Judge’s decision was right.
I find it impossible to distinguish the /present case from the last twocases I have cited. When Aron left the/ground and got on the scaffold-ing he had, like the carter in Knowles v. Southern Railway Company(supra), necessarily taken himself out of the scope or sphere of hisemployment. The accident took place whilst there and before he hadresumed his employment. In these circumstances, the act was not forthe purposes of, and in connection with, his employer’s trade or business.
For the reasons I have given, I have come to the conclusion that thefinding of the Commissioner was right and the appeal must be dismissed.
Appeal dismissed.
(1924) 2 K. B. 651.