Pearson v Fremantle Harbour Trust [1929] HCA 19

Pearson v Fremantle Harbour Trust [1929] HCA 19 - HCA 1929 case summary — Zoe

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the employer should supply him with a meal or pay him a sum of money for such meal, if provided by himself. The following further provision was included in the award: ' (17) When employees are on duty at a vessel before and after a meal hour, the employer shall, when practicable, cause hot water to be provided for them to make tea, except under such circumstances that the vigilance officer or the Board of Reference decides the provisions to be unnecessary." For the purpose of complying with this provision and for other purposes the respondent had a "cook-house" upon the Quay. On the date mentioned the appellant was engaged at work in a shed about a quarter of a mile from the '' cook-house," there being three intervening sheds. He was attending to the electric cables which supplied power to a travelling crane. Although the men at work were manifestly handling inward or outward cargo, it appears that there was no vessel alongside at the time. It was established by the evidence that when men were working at a shed, it was the practice for one of their number, about fifteen or twenty minutes before the meal-hour, to leave his job for the purpose of getting hot water at the " cook-house " and bringing back tea for the men so that it should be ready when the meal-hour began. This practice, besides enabling the respondent to fulfil its obligation under the clause in the award, when the men were working at a ship, had the advantage of allowing a large number of men to take their meal at the place of work without resorting in a body to the " cook-house." On this day the task fell to the appellant. At about 11.40 a.m. he left the cables, of which another man took charge, and went on to the roadway. He saw a lorry on the other side of the road, which he thought might carry him the quarter of a mile, which he would otherwise have to walk. It was usual for men going for the hot water to get a "lift" if they could. He crossed over to it, but learnt from the driver that it was not going that way. He then continued a little on his way but was struck from behind by a motor-car and sustained injuries which led to partial incapacity. In the Local Court, the magistrate found that while there was a footpath on the further side of the roadway, the road was commonly used by the public and workmen who were on foot; and that it

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to his work by a way over the employer's premises which was permitted but not that provided by the employer did not arise in the course of his employment. Atkin L.J. said (1) : - " With respect I think the learned Judge was misled by the application of his meaning of the decision in the House of Lords in St. Helens Colliery Co. v. Hewitson (2). In that case the workman had never reached the sphere of his operations at all. He was on a railway and in a railway train which began to run, I think, about six miles away from the colliery where the man was in fact employed, and in a train that he was entitled to be in if he chose to be by reason of the employers having provided a train which the workman had the option to use. It is in reference to those facts that the learned Lords laid down the rule which the learned Judge refers to, and no doubt they held that in such a case as that it was essential to show that the man was in fact under a duty to his employers to be at that particular place using that appliance before it can be said that he was acting in the course of his employment. But it appears to me that the learned Lords in that case certainly never intended to overrule the principles which had already been approved of in more than one case, and certainly in Highley's Case (3), which have been referred to by the Master of the Rolls, and in dealing with the question of duty it is to be observed that Lord Wrenbury says: - ' The word "duty," however, is not to be taken in a narrow sense. It is not necessary that it shall be the man's duty to do the act, it suffices that he is engaged at the moment in doing his duty. If, as in John Stewart & Son Ltd. v. Longhurst (4), the accident occurs to the man in a place in which he would not be entitled to be, except in order to perform his contract of service, the test is satisfied, because he is there solely in pursuance of his duty.'" The fact that Lord Wrenbury did not mean when he used the word " duty " to confine "the course of the employment" to the doing of things which the workman's contract of service obliged him to do is made even clearer by a passage in his speech in Hewitson's Case, before that quoted by Atkin L.J. He says (5): - The employment may be to do some defined manual work, say, hewing coal, but the accident need 928) 138 L.T., at p. 547. (3) (1917) A.C, 352,

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not be actual work, but it must, I think, be work, or the natural incidents connected with the class of work - e.g., in the workman's case, the taking of meals during the hours of labour ; in the servant's, not only the taking of meals, but resting and sleeping, which follow from the fact that domestic servants generally live and sleep under the master's roof." In Lancashire and Yorkshire Railway Co. v. Highley (1) the House of Lords determined that the accident did not arise out of the employment because it was due to an added peril, one "voluntarily superinduced on what arose out of the employment, to which the workman was neither required nor had authority to expose himself," but Lord Finlay L.C. (2), Viscount Haldane (3) and Lord Sumner (4) all say it arose in the course of the employment. The workman was a labourer on the railway. Harly on the morning of the accident he had "checked on" and had been told to travel by passenger train to another place to work. The journey involved a change of trains and he and his fellow- workmen had to wait some time at the station at which they changed. They had food with them. There was a mess-room on the other side of the railway-line with a man in charge who was in the habit of supplying hot water to any servant of the company who applied for it. They crossed the line to get hot water to prepare their breakfast. Lord Finlay says: ''They'' (the Court of Appeal) "held that getting their breakfast was covered by the men's employ- ment, and on this they were, I think, right." Lord Sumner says: "IT accept that it was in the course of his employment that he should have been preparing to get his breakfast at the time in question, that he should have been going to the mess-room for hot water for that purpose, and that, in order to get the hot water, he should have been traversing a number of pairs of rails." With this may be contrasted Pruce v. Davey (5), where the employee's errand on his own behalf involved an interruption or suspension of his service.

At a glance

Court

Decision date

Before

Source

Judgment (53 paragraphs)