014-NLR-NLR-V-51-KRISHNAKUTTY-Appellantand-MARIA-NONA-Respondent.pdf
GRATIAEN J.—Krishr.akutty v. Maria Nona
Present: Gratiaen J.
KRISHNAKUTTY, Appellant, and MARIA NONA, Respondent
S. C. 315—Workmen’s Compensation C$jl49f47
Workmen's Compensation—Night watchman—Going home for dinner—Murderedon way home—Accident not in course of employment.
The deceased was a night watchman who was not supplied with mealswhile on duty and therefore returned home ovory night for dinner.One night he was murdered on his way home on a highway which didnot form part of the premises over which he was employed to keepwatch.
Held, that the accident did not arise out of and in the course of hisemployment.
y_PPEAL against an order for compensation under the Workmen’sCompensation Ordinance.
N.K. Choksy, K.C., with •/. N. Da-vid, for the appellant.
Vernon Wijetnnge, for the respondent.
Cur. adv. vuit.
May 25, 1949. Gratiaen J.—
This is an appeal against an order for compensation under the Work-men’s Compensation Ordinance (Chapter 117) in favour of the widowof a man named Solomon who was at the date of his death employed asa night-watchman on certain premises belonging to the appellant. Thequestion of law which arises for my determination is whether Solomoncame by his death in an accident “ arising out of and in the course of hisemployment ” under the appellant within the meaning of Section 3 ofthe Ordinance.
GRATIAJSN J.—Krishnakutty v. Maria JYona
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The relevant facts as found by the learned Commissioner are thatSolomon's normal hours of duty as a night-watchman were from 6 p.m.till 9 a.m. No meals were supplied to him while on duty, and in theoircumstances he returned home each night for a short period to havehis dinner. I will assume that he absented himself from his place ofduty on these occasions with the knowledge and approval of hisemployer. On the night of July 30, he was murdered on his wayhome to dinner. The murder took place on a highway which did notform part of his master’s premises over which he had been employedto keep watch.
The learned Commissioner took the view that in all the circumstancesof the case “the course of employment had not been interruptedat the timethe accident took place ”, and awarded compensation to Solomon’swidow. Were I permitted in exercising my appellate jurisdiction tobe swayed by sympathy I should not have been reluctant to affirm thisorder, but 1 am bound by the provisions of the statute. The issuearising in cases where an employee meets with an accident when be is“ off duty ” during the dinner-hour has been answered by the Courtswith a consistency whioh is somewhat rare in Workmen’s Compensationclaims. In Parker t “Black Rock ” (owners)1 a seaman had signedarticles for a coasting voyage, which contained the term u crew to providetheir own provisions ”, When the ship arrived in port he went ashoicto buy the necessary provisions, and then returned in the direction ofthe pier where the ship was lying. It was a dark and. stormy night,and the next day the unfortunate man’s corpse was found floating inthe water noar the pier. The House of Lords decided that the accidentby which he lost his life did not arise out of bis employment. “ It isnot sufficient, ” said Lord Parker, “ that the accident happened duringa period when the man was lawfully absent from the vessel. In orderto make it an accident arising out of the employment, the absence mustbe in pursuance of a duty owed to the employer ”. The argumentthat the man’s absence arose from the need for food was ruled to beirrelevant on the ground that that was “a necessity common to allmankind A later decision of the Court of Appeal in Bell v. ArmstrongWhitworth <fc Co.1 went even further. In that case a workman left thepremises during the luncheon interval to go to a canteen specially providedfor the purpose by his employers. The canteen was some distance fromthe employers’ gates at the opposite side of a public highway. Theemployee was knocked down and killed by a lorry on the highway ashe was approaching the canteen. It was held that the principle laiddown in Parker v. ” Black Rock ” (owners)2 applied, and that the fact thatthe employers by installing the canteen had in a sense invited theworkman to go there did Dot affect the position.
Learned Counsel for the widow relied on Armstrong Whitworth iBedford* but the facts of that case are very clearly distinguishable,because there the workman returning to work after lunch from a canteenmet with an accident as he was coming down the stairs “ which were theprovided means of access from part of the employers’ premises to the
(1915) A. C. 725.* (1915) A. C. 725.
(1919) 88 /.. J. K. B. 844.4 (1920) A. C. 757.
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BASNAYAKE J.—Dinapala v. Inspector oj Police, Galle.
particular part where the machines were, where he slipped and fell ”{■per Lord Sumner). I note that in his opinion Lord Sumner agreedthat if the accident had happened in the street, tho case would havebeen different.
In the present case Solomon came by his death when he was on thehighway for a purpose (no doubt a very necessary purpose) of his own.He was not there in respect of any special duty which he owed to hisroaster. It therefore follows that the accident did not arise “ out ofand in the course of ” his employment within the meaning of the Ordi-nance. I set aside the order appealed from, but make no order as tocosts.
Order set aside.