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been allowed where the sole cause of the injury is the manner in which the servant is coming or going, eating, drinking, or resting, as where a servant chokes himself while at his dinner.31
Granting that the servant has entered the employment of his master and has not definitely quitted it, the question arises as to whether he departs from it by doing work other than that which he is engaged to perform, or by doing his appointed work at a place other than that designated for that purpose or in a manner in which he has not been directed or permitted by the master to perform it. "There are two ways," says the Lord President in Conway v. Pumpherston Oil Company,32 "in which a servant may be without the sphere of his employment. One way - and in these cases the question is generally of easy solution is where the servant does some other sort of work than that for which he is engaged. To take a very simple and obvious instance, — if the footman on the box of a carriage, with the consent of the coachman, took it into his head to drive his horses, there would be no question that if any accident happened it would not be in the course of his employment, for it is not part of a footman's business to drive, although it is part of his business to sit on the box. The other class of cases which raise more difficult questions is where a servant goes into what I think I may call a territory with which he has nothing to do."
An examination of the cases shows that even the first question is not a simple one. The phrase used is “in the course of his employment.” On its face this seems to indicate that the accident must happen to a servant while he is engaged upon that part of the employer's general business which has been specifically entrusted to the particular servant. And this is the construction which the British courts have put upon it. The right of the master to regulate his own business and to assign specific tasks to specific workmen is fully recognized, 33 and the risk of liability which is placed upon him by the act is limited to those accidents which occur to workmen who confine themselves to the general boundaries of their allotted spheres of action.34 But the workman is not rigidly restricted to the exact acts which he is employed to do. Unless the servant undertakes work of a generically different kind and involving new and greater risks, a "reasonable latitude" is allowed to him in choosing his means of accomplishing his task. The test at best is a vague one, depending on the circumstances of each individual case, and must in practice give rise to uncertainties and litigation.35
31 O'Connor, J., in Cogdon v. Sunderland Gas Co., 1 B. W. C. C. 156 (1907). 32 (1911) Scot. Sess. Cas. 660, 48 Scot. L. Rep. 632, 635, 4 B. W. C. C. 392.
33 “It is and must be competent for a master to define and limit what that sphere of employment is.” Collins, L. J., in Whitehead v. Reader, (1901) 2 K. B. 48, 3 W. C. C. 40, 43.
34 Lowe v. Pearson, (1899) 1 Q. B. 261, 1 W. C. C. 5; Losh v. Evans, 19 T. L. R.
Where “the work is divided into certain spheres and one man steps out of his class and undertakes to do work for which he is not fit and which is not entrusted to him,” 36 and is injured, his injury is not received in the course of his employment. Compensation has from the first been consistently denied where a workman employed to do unskilled labor officiously attempts, save in an emergency, to do work requiring skill and experience for its safe performance, as where one whose work does not involve contact with machinery officiously meddles with it. The spheres of skilled and unskilled labor are regarded as quite distinct and separate.37 But a skilled workman is not so rigidly confined to the precise sort of skilled work which he is specifically employed to perform, and so too an unskilled workman is probably not strictly confined to the exact form of unskilled labor entrusted to him – at least if the work voluntarily chosen does not involve risks substantially greater and different in kind. A reasonable latitude is allowed him in his choice of the means of accomplishing his task. He may do things which are not specifically entrusted to him and which are specifically entrusted to
142, 5 W. C. C. 17 (C. A., 1903); Edwards v. International Coal Co., 5 W. C. C. 21 (C, A., 1899).
35 If the object of the acts is to throw upon the business the cost of the injury which it does to those engaged therein, it would seem that a servant should be compensated for injuries received while doing work which in fact tends to further the general objects of the business, or which if successful would further them, irrespective of whether such work is specifically entrusted to him or not. It would seem better, therefore, to omit the words “in the course of employment" and to substitute some phrase which would make the business answerable for all damage which was received by those employed therein while engaged in work which in fact tended to further the general objects thereof.
36 Lord Kinnear in Goslan v. Gillies, (1907] Scot. Sess. Cas. 68,44 Scot. L. Rep. 71, 73.
37 In Lowe v. Pearson, Losh v. Evans, and Edwards o. International Coal Co., supra, unskilled workmen were injured while attempting tasks requiring skill and experience for their safe performance. In Losh v. Evans, Collins, M. R., says, 5 W. C. C. 19-20: “It seemed to be clear that an employer was at liberty to ... divide the labor of his workmen into unintelligent and skilled labor.” See also Kerr v. Baird & Co., 48 Scot. L. Rep. 646 (Ct. Sess., 1911) (ordinary miner officiously firing shot or blast).
another employee, if they are reasonably necessary to enable him to perform his appointed task. Unless by officiously doing work for which he has not the requisite skill and experience the workman unduly increases the risk of injury to himself, or, perhaps, unless he is expressly forbidden to do it,38 “it is enough that he has interposed in the furtherance of his master's business."' 39 “Any accident resulting to a workman while engaged in promoting his employer's interests is primâ facie” within the act. 40
The Scottish cases indicate that a servant, “besides having to perform special work, owes something to the community of his fellow workers, and must be helpful according to his experience when the necessity arises.” 41 The test is whether “the master or overseer might reasonably have required him to perform” the act in question though outside of his usual sphere of work.42
38 While the fact that a particular work officiously undertaken is expressly forbidden does not of itself take it out of the course of employment, Whitehead v. Reader, (1901) 2 K. B. 48, 3 W. C. C. 40 (where the injury to a workman employed to grind tools caused by his attempt to adjust the power belt on his machinery was held to arise out of and in the course of his employment though he had been expressly told not to touch the machinery), there is, especially in the later cases, a distinct tendency to regard disobedience as an important factor not only where the servant has done work not specifically entrusted to him, but also where he is doing his appointed work in an improper manner, or is going to or írom his work at his employer's premises, or otherwise doing things ancillary to his employment. So, Farwell, L. J., in Brice v. Lloyd., Ltd., (1909) 2 K. B. 804, 2 B. W.C. C. 26, says: "a workman is not entitled to do things which are expressly forbidden." And in Kane v. Merry & Cunninghame, 48 Scot. L. Rep. 430, 4 B. W. C. C. 379 (Ct. Sess., 1911), and in Barnes v. Nunnery Coal Co., (1910] W. N. 248, 4 B. W. C. C. 42 (C. A., 1910), ante, n. 27, the fact that the way which the servant chooses to take to or from his work is prohibited seems to be regarded as of great importance. In the Irish cases a distinction seems to be drawn between a failure to observe a mere understanding or general order, McKee v. Great Northern Ry., 42 Ir. L. T. 132, 1 B. W. C. C. 165 (C. A., Ir., 1908), ante, n. 26; or the breach of a general regulation, Tobin v. Hearn, (1910) 2 I. R. 639, infra, n. 39, and disobedience of as pecific prohibition.
39 Lord Pearson in Goslan v. Gillies, (1907] Scot. Sess. Cas. 68, 44 Scot. L. Rep. 71, where a clerk, a part of whose duties it was to weigh all the articles sent out, was injured while assisting some laborers to carry a brass frame to the weighing machine. See also Tobin v. Hearn, (1910] 2 I. R. 639, where a boy employed at a finishing machine in a boot factory was sent to have a sole remoulded. The operator in charge of the moulding machine being absent, the boy, though by the regulations the workmen were forbidden to change from one machine to another, attempted to remould it himself and was injured. A finding by the County Court that his injury did not arise out of and in the course of employment was held to be without evidence to support it, Samuel Walker, L. C., saying: “In trying to do the work himself he was acting under the mistaken idea that he was furthering his master's interests.” It was also said that the "boy was accustomed on machinery though of a different sort.” A distinction is also drawn between “a breach of general regulations” and “wilful interference with dangerous machinery and disobedience of orders.”
40 Lord McLaren in Menzies v. McQuibban, 2 Fraser 732, 735 (Scot. Ct. Sess., 1900), where an injury, received by a general laborer while assisting a machine man at his request to replace a belt, was held to be within the Act of 1897.
A workman is still in the course of his employment though he is in an emergency doing acts which are entirely different from the work assigned him, which involve new and greater danger and which he is expressly forbidden to do under normal conditions. Such an emergency only exists where the master's interests are imperilled, and the servant's acts must be necessary for their protection. He may do such acts if they are necessary to preserve the master's property from destruction,43 or to rescue a fellow workman, if such workman was imperilled under circumstances which would make the master liable to compensate him, if injured, for in such case the act is one which, if successful, would have preserved the master from liability or have lessened the amount thereof.4 If, however, the servant or other person imperilled be not entitled to compensation if injured, the rescue has no tendency to protect the master's interest, and the servant's injury, received in attempting it, does not arise in the course of the employment.45
41 Lord McLaren in Menzies v. McQuibban, supra. 42 Lord McLaren in Goslan o. Gillies, supra.
43 Rees v. Thomas, (1899) 1 Q. B. 1015, 1 W. C. C. 9 (a mine boy held to be within the course of his employment while attempting to stop a runaway horse, though his employment had nothing to do with horses and he had got on the truck which the runaway horse was drawing contrary to orders and to steal a ride); Harrison v. Whittaker Bros., 16 T. L. R. 108, 2 W. C. C. 12 (C. A., 1900). But in Collins o. Collins, (1907] 2 I. R. 104, it is held an injury received by a servant while trying to save his master's life or protect him from physical injury is not within the act.
44 Mathews v. Bedworth, 106 L. T. J. 485, 1 W. C. C. 124 (Nuneaton Co. Ct., 1899); London & Edinburgh Shipping Co.o. Brown, 7 Fraser 488 (Scot. Sess. Cas., 1905); and see the curious case of Yates v. Colliery Co., (1910] 2 K. B. 538, 3 B. W. C. C. 418, where a collier, while assisting in removing a shockingly injured fellow miner, received a nervous shock so severe as to produce neurasthenia. See also Hapelman 0. Poole, 25 T. L. R. 155, 2 B. W. C. C. 48 (dependents of an employee of a lion tamer, whose duties did not require him to come in contact with the lions, held entitled to compensation for his death while attempting to drive escaped lions back to their cage).
45 Mullen v. Stewart, (1908) Scot. Sess. Cas. 91, 1 B. W. C. C. 204. In Powell o. Lanarkshire Steel Co., 6 Fraser 103 (Scot. Ct. Sess., 1904), it was held that a servant injured while endeavoring to save property which had been imperilled by his own acts done outside his sphere of employment and in disobedience of orders, was not entitled to compensation. But see Hapelman v. Poole, supra. So a servant, doing another's work to oblige him, is not within the course of his employment. McAllan v. Perthshire County Council, 8 Fraser 783 (Scot. Ct. Sess., 1906).
It is evident that very difficult questions must arise as to whether an emergency in fact exists, what interests of the master are sufficiently important to make it the servant's duty or right to leave his appointed sphere of work to protect them, and whether the acts done were necessary or were merely officious or over-zealous. The first question is rendered especially uncertain by the fact that it is enough that the servant honestly believes that an emergency exists in which his master's interest requires him to go outside his normal sphere of employment; no such emergency need actually exist, nor need the master's person or property or interests be in actual peril.46 Indeed it seems immaterial that there were no reasonable grounds for the workman's belief in its existence. The uncertainty, the opportunity for litigation created by making the right to recover depend on the claimant's state of mind, is obvious.
As to the second question, it seems impossible to draw any definite boundary not wholly arbitrary between interests of the master sufficiently important to justify the servant in departing from his normal sphere of labor and those which are not of sufficient importance to warrant his so doing. In every case save those covered by actual decisions, the question must be solved by a comparison of the benefit to the master and the added risk of injury to the servant and so of liability to the master. The Scottish cases show a tendency to regard as an emergency any situation when, because no one specially appointed is present to do the work in question, the master's business will be delayed or impeded unless someone, in whose sphere of duty such acts are not included, should perform them.47 This is, however, limited to cases where the new work does not require skill which the servant doing it does not possess, or where the servant is not forbidden to do such work, but, on the contrary,
46 Harrison v. Whittaker Bros., 16 T. L. R. 108, 2 W. C. C. 12 (C. A., 1900). Here a boy employed to grease the wheels of trucks used upon his employer's private railway, while waiting for trucks to grease, went to warm himself at a fire near to the lever of a switch. He saw a train approaching and, thinking the switch closed, pulled the lever to open it, and in so doing was injured. In fact the switch operated automatically and the engine would have opened it. It was held that the boy's story being believed, there was sufficient evidence to justify the County Court in holding that the injury arose out of and in the course of the boy's employment.
47 The same idea appears in the recent Irish case of Tobin v. Hearn, (1910] 2 I. R. 639, ante, n. 39.