Stewart v Metropolitan Water Sewerage and Drainage Board [1932] HCA 45

High Court of Australia|1932-07-01|Before: McTiernan JJ, Dixon J

H.C. or A. Workers' Compensation - Overseer - Supervising work of contractor - Preparal

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

for lunch - Boiling of billy by contractor's employee for other employees of contractor

Explosion of primus stove - Injury sustained by overseer sitting near by Whether injury arose "out of" the employment - Workers' Compensation A 1926-1929 (NV.8.W.) (No. 15 of 1926 - No. 36 of 1929), secs. 6 (1), 7.

'The deceased was employed by the respondent as an overseer and inspector to ensure that a contractor to the respondent carried out certain work accordin to the specifications. The movements of the deceased were not rest except that he was required to be on the job whilst any work was in prog subject to which requirement he was free to have his lunch when he liked. At 11.30 a.m. on the day the work commenced, a ganger employed by th

contractor directed one of his workmen to boil the billy for lunch.

*The Workers' Compensation Act Act, injury resulting in the death

1926-1929 (N.S.W.) provides, by sec. serious and permanent disablement of 6 (1), that "''Injury' means personal a worker shall be deemed to arise ou injury arising out of and in the course of and in the course of his employm

of the employment. . . ." Sec. 7 notwithstanding that the worker provides

received an injury whether at or away from his place of employment (and in the case of the death of the worker, his dependants) shall receive compensation purposes of and in connection from his employer in accordance with - _his employer's trade or business." this Act. (2) For the purposes of this

(1) A worker who has at the time when the injury received . . . acting without structions from his employer, if act was done by the worker for

- plumbite. 'The deceased was at, or had come to, the place where the billy was

'being boiled - some forty yards away from where work was still in progress - ihr 'was seated on his haunches near to the workman whom he was watching.

Whilst the workman was endeavouring to remedy a defect the stove exploded, "and the deceased sustained injuries which caused his death,

Held, by Gavan Duffy C.J., Rich, Starke, Bratt and McTiernan JJ. (Dixon J. dissenting), that these facts were sufficient to support a finding that the jury arose "out of" as well as "in the course of " the deceased's employ- 'ment within the meaning of sec. 6 (1) of the Workers' Compensation Act 1926-1929 (N.S.W.).

Decision of the Supreme Court of New South Wales (Full Court): Stewart y. Metropolitan Water, Sewerage and Drainage Board, (1932) 32 8.R. (N.S.W.) 576, reversed.

claim for compensation was made under the provisions of the kers' Compensation Act 1926-1929 (N.S.W.) against the Metro- Water, Sewerage and Drainage Board on behalf of the ndants of Norman Herbert Astill, who died on 6th January

lay whilst in the employ of the Board. From the evidence | before the Workers' Compensation Commission it appeared the deceased was employed by the Board as an overseer n 'inspector in connection with some work being carried out e Board at Long Bay Road, Maroubra, by a contractor who e employed a number of men. The work, which involved g of trenches, was only commenced on the day of ecident. The deceased was the only one of the Board's men there; he was not required to do any laborious work : y was simply to inspect the work while it was in progress, see that it was carried out according to the specifications e contract, for which purpose he was, apparently, supplied @ plan; and he was expected to keep a watchful eye over on the job while the men were working. There was no on his movements except that he was required to be on

ment he could have his lunch when he liked, and he was at y during the luncheon interval. At about half-past eleven

, done on a primus stove which was also used on the job for heating H.C. or A.

Srewarr v Merro- POLITAN Water, SEWERAGE AND DRarNaGE Boarp.

his gang named Lenham, to boil the billy for lunch. This was ona primus stove, which was also used on the job for heating ph The deceased, who on the day of the accident had no duty associat with the primus stove, was at, or had come to, the place where th billy was being boiled, and was seated on his haunches, about thi feet away, watching Lenham. For some reason or other the s did not function properly, and, whilst Lenham was endeavo to rectify it, it exploded, and a quantity of burning kerose was thrown therefrom over the deceased which ignited his clothe and burnt him so severely that he died next day in hospital as result of burns and shock. The precise distance of the stove from each part of the job was not clearly defined, but the Commi found that at the time of the explosion "there were then four five workmen about forty yards away ; the ganger had not bl his whistle to indicate that it was time for lunch and his gang o men was still in a trench." On this evidence the Commission found that the deceased's death was the result of an injury arising out and in the course of his employment with the Board on 5th Januaj 1931, and made an award in favour of his dependants.

At the request of the Board a case, in which the facts were fou substantially as above set out, was stated for the determination the Supreme Court, the question of law being as follows : -

Does the evidence support the finding of the Commission that the injury which the deceased worker received on 5th January 1931, and which resulted in his death on 6th arose out of and in the course of his employment with respondent ?

The Full Court of the Supreme Court, by a majority, held that th deceased's injury did not arise out of his employment, and answered the question in the negative : Stewart v. Metropolitan Water, Sewerage and Drainage Board (1).

From this decision the applicants now appealed to the High

Rainbow (with him Miller), for the appellants. It was the duty of the deceased to watch, on behalf of the Board, everything that

g the employee operating the primus stove. Even assuming main work was being carried out at some distance from the he was, nevertheless, on the area, and was able to give supervision. The accident occurred at a place on the area ere the deceased, in the course of his employment, was entitled e; therefore the injury sustained by him arose out of his employ- (Thom or Simpson v. Sinclair (1) ). Even though not expressly ted to be at the place where, and at the time when, the accident d, the performance of his duty brought him into contact the danger (Dennis v. A. J. White & Co. (2); Allcock v. Rogers 'and Lawrence v. George Matthews (1924) Ltd. (4)): that being it is immaterial whether at the time of the accident he was ively engaged on such duty or not ; therefore the case of Board of er Supply and Sewerage v. Dunn (5) is distinguishable. The comes within the test laid down by Lord Sumner in Lan- and Yorkshire Railway Co. v. Highley (6). The place was 'dangerous by the act of another employee (Clark v. Lord te (7)).

N J, referred to Fearnley v. Bates & Northcliffe Ltd. (8).]

assuming that at and about the time of the accident the ceased did not actually have the workmen under his observation, 'is conceivable that they and the work involved were the subject

ey, for the respondent. The evidence fails to show that at

; therefore no liability is attachable to the Board (Marsh & Pearson Ltd. (9) ).

rar J. referred to St. Helens Colliery Co. v. Hewitson (10).

NJ. That case is referred to in Pearson v. Fremantle Har-

A.C. 127. (8) (1917) 86 L.J. K.B. 1000, at p. TOs) RWC, 140 eo) (3) ALA a (9) (1917) 86 L.J. K.B. 1349; 10 (4) (1929) 1 KB. 1, BWC. 360, }) 24 S.R. (N.S.W.) 360. (10) (1924) A.C. 59.
A.C. 352, ' (11) (1929) 42 C.L.R. 320, at pp. 326

g done on the job by all the employees of the contractor H- ©. oF A.

Ww Stewart v. Merro- POLITAN Water, SEWERAGE AND DRAINAGE Boar.

Srewarr v. Merro- POLITAN Warr, 'SEWERAGE AND Drarvace Boarp.

It must be shown that the deceased's duty took him to the place where he sustained the injury (Rowland v. Wright (1)). The ca of Morris v. Mayor &c. of Lambeth (2) is distinguishable becau there the injured workman was in the exercise of his duties at time of the accident.

The mere fact that the injured person was entitled to be at the place where the accident occurred is not sufficient: it must be shown that it was his duty to be there (Board of Water Supply Sewerage v. Dunn (4)). The test that should be applied is: Was the deceased, at the time of the accident, performing a duty he owed to his employer ? (Thom or Simpson v. Sinclair (5) ; Murray v. Allan Bros. & Co. (6); Morris v. Rowbotham (7).) Blovelt y. Sawyer (8) is distinguishable. Although the facts of each case may vary, the tests to be applied are the same. Where the inj workman was idling his time, as here, it is an inference of fact that he was there for his own purposes (Tinker v. Hulse & Co. (9) ). words "arising out of his employment "' were considered in ecashire and Yorkshire Railway Co. v. Highley (10), Thom or Simpson v. Sinclair and Charles R. Davidson & Co. v. M'Robb or Officer (3) ). For the meaning of the words "in the course of his employment" see Charles R. Davidson & Co. v. M'Robb or Officer. The fact that a workman was injured whilst at his place of employment is not, b itself, sufficient to justify an inference that he was injured as a result of an accident arising out of his employment (Geary v. Matthew Brow & Co. (11)). The circumstances of this case are similar to tho present in Whittingham v. Commissioner of Railways (W.A.) (12), where, by a majority, the Court decided that the injury in question did not arise " out of " or "in the course of " the employment.

Rainbow, in reply. The decision in Morris v. Mayor ce. 9 Lambeth (2) is still good law; see Armstrong, Whitworth & Oo. v. Redford (13).

(1) (1909) 1 K.B. 963. (7) (1915) 8 B.W.C.C. 157. (2) (1905) 22 T.L.R. 22, (8) (1904) 1 KB. 271 (3) (1918) A.C. 304. , 28,

(4) (1924) 24 S.R. (N.S.W.) 360. + (10) (1917) A.C. s (5) (1917) A.C. 127, (11) (1931) 24 B.W.C.C. 210, (6) (1913) 6 B.W.C.C. 215. (12) (1931) 46 C.L.R. 22.

Gavan Durry C.J., Evarr anp McTiernan JJ. Norman Astill, employee of the Metropolitan Water Sewerage and Drainage lost his life as a result of burning and shock caused by the osion of a primus stove, It appears that (1) work was being ried out for the Board by a contractor named Murray at Long Road, Maroubra, near Sydney. (2) Astill was employed by Board as an " overseer and inspector," and there was no other rson representing the Board on the job - his duty was " to watch everything on the job while the men were working." (3) On the day in question the job, which included trench work, had com- . (4) An employee of Murray the contractor, named Lenham, as ordered by the ganger to boil the billy for lunch on the primus e, which was used on the job. Before the billy boiled, Lenham to prime the stove, but it exploded against Astill, who was hed near by. (5) The precise distance of the stove from each of the job is not clearly defined, but at the time of the explosion e were "four or five workmen about forty yards away; the et had not blown his whistle to indicate that it was time for and his gang of men were still in a trench."

Workers' Compensation Commission, from which no appeal except on questions of law, found that Astill's injury arose of and in the course of his employment, but the majority of the ill Court has held that there was no evidence to support the finding the accident arose " out of " the employment.

first question is whether there is evidence to support the that the injury arose to Astill "in the course of " the employ-

e Commission found as a fact that the duty of the deceased to "watch over everything on the job while the men were g." A determination of what a man's employment is, may nvolve considerations of time, place and function. In point of e, the accident occurred at a moment when Astill was required 0 be on duty ; in point of place it is clear that Astill's employment xtended over and about the area covered by the whole job. Its nt was not and could not well be determined by reference to and bounds. His employment being that of an overseer,

Srewart v Merro- POLITAN Water, SEWERAGE AND DratwacGe Boarp.

Srewarr v. Merro- POLITAN Water, SEWERAGE AND DRAINAGE Boar.

his duty was to keep an eye over all the operations being perfor by Murray's employees in executing his contract. In Low or Jackson v. General Steam Fishing Co. (1), speaking a workman whose duty was that of a " watchman of four trawl belonging to the appellants, moored to Granton quay," Lord Athi son said : - His field of operations, so to speak, embraced this qu the trawlers, and the means of approach to each of them. At time the accident happened he had a right to be at the place in whi he actually was." He added (2) : - "The duty of the dece was to be at this quay and to take care of these boats. In discharge of that duty he was entitled to pass from quay to traw and from trawler to quay, when and as often as he pleased du the twenty-five hours on which he was on the watch." It is reasonably clear, therefore, that Astill's " field of operations or "scene of duty" did not exclude the place where he was y

It appears from the evidence that Astill was watching Lenhai attempt to prime the stove, when the explosion took place. B it is quite erroneous to suppose that an overseer, watchman

because for a moment or two his attention becomes diverted, his eye strays to some incident or some object on or about the with which he is not immediately concerned. As Lord Loreb L.C. said in Low's Case (3) : - " Everything, of course, must dep upon the nature of what he has to do, but allowance should be m for the ordinary habits of human nature and the ordinary way which those employed in such an occupation may be expected to ac A man may be within the course of his employment not mer while he is actually doing the work set before him, but also wh he is where he would not be but for his employment, and is doin what a man so employed might do without impropriety."

It follows that the Commission was fully entitled to find that deceased was "in the course of " his employment when the incid occurred. This seems to have been conceded in the Supreme Cour Halse Rogers J. stating in his judgment: "the question debate

(1) (1909) A.C, 523, at p. 538. (2) (1909) A.C., at p. 539. (3) (1909) A.C., at p. 532.

ded that it was open to them to find that it arose in the course employment" (1). it the Supreme Court held that the accident did not arise " out ' the employment, mainly because Astill's employment laid upon no duty relating to the stove, the explosion of which caused his It was said, "the finding of the Commission that the had on the day of his death no duties associated with the mus stove is in effect a finding that any danger arising from such 'was not an ' incident' of his employment on that day " (2). In Fisher or Simpson v. London, Midland and Scottish Railway (3) Viscount Dunedin said: "If the deceased was in the of his employment, as that was explained in the case of jeice v. Singer Sewing Machine Co. (4), which was approved 'this house in Dennis v. White (5) and Thom or Simpson v. (6), if there are facts from which it may be deduced that mployment brought him within, or allowed him to be within, of the peril to which his death could properly be ascribed, he arbitrator comes to the conclusion that the accident which 'death arises out of, as well as in the course of, his employment, nt should not be disturbed." In the same case Lord said (7) that "at the time of the accident the deceased welling in the railway carriage in the course of his employment to the inherent risks, slight though they may ordinarily be, from the carriage through insecurely fastened doors or pen windows." t seems to us that Simpson's Case (8) is a strong authority in ur of the appellant. The accident was "unexplained," and t, as Lord Tomlin pointed out (7), "where the evidence estab-

it occurs capable of explanation solely by reference to that it is legitimate, notwithstanding the absence of evidence as to

(1) (1932) 32 S.R. (N.S.W.), at p. 586. (5) (1917) A.C. 479.

(2) (1932) 32 SR. (N.S.W.), at p. 590. (6) (1917) A.C. 127.

(3) (1931) A.C. 351, at pp. 365-366. (7) (1931) A.C, at p. 369. -() (1911) 8.0. (Ce. of Sess.) 12. (8) (1931) A.C.'351.

Srewarr v Metro- POLITAN Water, SEWERAGE AND DrarNace Boarp.

Srewart v. Merro- POLITAN Water, SEWERAGE AND DrarnaGE Boarp.

the immediate circumstances of the accident, to attribute thea

ment." This re-statement of the cases shows clearly that if As was "in the course of his employment " properly at a place ne; stove, his accident also arose " out of" his employment if it because of a "risk particular thereto" attached to that place, is really the same principle is stated by Russell L.J. in

ment is established if the man's employment brought him to d particular spot where the accident occurred, and the spot in fact t out to be a dangerous spot. If such a locality risk is established, th the accident 'arises out of' the employment, even though the which caused the accident was neither necessarily incident to th performance of the man's work, nor one to which he was abnorn subjected."

We think that some confusion has been caused by a mis standing of Lord Justice Russell's phrase " if the man's empl brought him to the particular spot." This cannot mean that therehi to exist any special duty to be at the particular place of the acci In Lawrence v. George Matthews (1924) Ltd. (2) the com traveller was not bound to be at the spot where the tree fell, more than the collector in McNeice's Case (3) was bound to b the spot where he was kicked on the knee by a passing horse. condition is satisfied if the worker, whilst in the course of his emplo ment, may properly come and does come to the point of It is there that his "employment brought him." Lord To in Fisher or Simpson v. London, Midland and Scottish Rail u Co. (4) refers to "a place to which some risk particular thé attaches," and proof of the character of the place is often ai

clair (5) ). : Does the present evidence support a conclusion that the place of the accident was a "zone of special danger"? In our opinion

(1) (1929) 1 K.B., at p. 19. (3) (1911) 8.C. (Ct of Sess.) 12. (2) (1929) 1 KB. 1. (4) (1931) A.C., at p. 369. (5) (1917) A.C., at p. 143.

There is a risk of explosion of a kerosene stove in use, and H.C. or A-

risk was borne by those who were close to the stove. Lenham =

injured by the explosion of it, as well as the deceased. The Stewart explosion is conclusive evidence that there was a distinct risk pelea

ed to that part of the job where the stove was being used. Wire. turned out to be " a place of special danger. On this question S=w=Race

AND her the accident arose "out of" Astill's employment, the Drarace

e Court laid stress upon the absence of any duties on Astill's pees: "associated with" the stove. But this is as irrelevant as eae ny Evatt J.

absence of any duty of the commercial traveller in relation to McTiernan J. tree which was struck by lightning (Lawrence's Case (1) ), or of

salesman in relation to the horse which kicked him (McNeice's

(2) ), or of the railway guard to the windows or doors of the

ge, out of which he fell whilst "in the course of " his employ-

nt, but not in the course of any particular work or duty to the

he appeal should be allowed, and the decision of the Workers'

ich J. The facts in this case have been stated in other judg- nts and I need not re-state them. They raise the familiar con- versy whether the unfortunate accident which befell the deceased e out of and in the course of hisemployment. I have no doubt it arose in the course of his employment and the finding of » Workers' Compensation Commission to that effect is justified the evidence in the case. In fact the argument before us centred e question whether the accident arose out of the employment. e words of the statute have been open to much criticism. Simple appear to be, their application to particular incidents" has found so difficult that the law reports are full of various s, each attempting - and attempting in vain - to provide fixed canon of interpretation from which a rule can be estab- d for future guidance " (Innes or Grant v. G. & G. Kynoch (4) ). _ In the latest: case, Northumbrian Shipping Co. v. McCullum (5), ord Macmillan prefers the criterion " whether the accident was due (1) (1929) 1 K.B. 1. (3) (1981) A.C. 351.

(2) (1911) S.C. (Ct. of Sess.) 12. (4) (1919) A.C. 765, at pp. 773, 774.

(5) (1932) 48 T.L.R. 568, at p. 572. 'VOL, XLVII. 15

Ww Srewarr v. Merro- POLITAN Water, SEWERAGE AND DRAINAGE Boarp.

to risks to which the public in general are exposed or to special to the employment." Analogies are not very helpfu Each case falls to be decided on its own facts. In this case accident was not due to extraneous forces. It occurred before men had ceased work. The deceased was on "the field of op tions." He was required to do but little on that day but the e of that duty was to be present, and in being there he was doing some thing on his master's behalf and doing it in his own way. I satisfied that these facts afford evidence upon which the Commi were entitled to draw the inference that there was a " causal tion" or "causal connection" between the employment and the accident.

Srarke J. This is an appeal from a decision of the Sup

sion that an injury to a deceased worker which resulted in his deatl arose out of and in the course of his employment. The Worker: Compensation Act 1926-1929 of New South Wales provides worker who has received an injury, whether at or away from

accordance with the Act. Injury, so far as material to this case means personal injury arising out of and in the course of the employ ment. It is now well enough settled that arising in the course employment does not mean during the currency of the engageme but "in the course of the work which the man is employed to do what is incident to it, in other words, out of the service." But workman may be required to be in attendance, and in that re engaged on his duty, though not actually doing work. Again, ul accident only arises out of employment when a causal con exists between the employment and the accident : " The expi "arising out of ' no doubt imports some kind of causal relation will the employment, but it does not logically necessitate direct ©

OF AUSTRALIA. 227 causation." " Was it part of the injured person's employ- H- ©. or A. to hazard, to suffer, or to do, that which caused his injury ?" ee not sufficient to show that but for the employment the worker Srewarr ild not have been at the scene of the accident (Charles R. Davidson Meno. v. M'Robb or Officer (1); Reed v. Great Western Railway Co. Wiiren, Upton v. Great Central Railway Co. (3); Lancashire and aay oovegs ishire Railway Co. v. Highley (4); J. & P. Hutchison v. Dratxace (5); Parker v. Owners of Ship Black Rock (6)). The P=". Starke J.

iestion stated in this case must be decided on these principles. deceased worker was employed by the Metropolitan Water, and Drainage Board. His duty was to inspect work

e job had practically only started, and the deceased was the only e of the Board's workers there. He was not required to perform

employed by the contractor directed a member of his gang the billy for Inch. This was done on a primus stove, was also used on the job for heating plumbite. The deceased was at, or had come to, the place where the billy was ig boiled, and was sitting on his haunches about three feet away g the boiling of the billy, but he had nothing to do with mus stove. The primus stove did not function properly, |, whilst the contractor's man was priming it, exploded, and a of burning kerosene was thrown over the deceased worker, ignited his clothes and burnt him so severely that he died the Was admitted during the argument, and I think rightly, that the ent arose in the course of the worker's employment; his ndance on the job was part of his duty, and the fact that he was actually working or supervising work at the moment of the ecident did not break the course of the employment : he was stand-

by, ready to perform his duties, though as the work had just : there was but little for him to do.

(1918) A.C., at p. 314. (4) (1917) A.C., at p. 372. (1909) A.C. 31, (5) (1916) 1 A.C. 471. (1924) A.C, 302, at p. 306. (6) (1915) A.C. 725.

Srewarr v. Mrno- POLITAN Warer, SEWERAGE AND Dnarwace Boarp.

The critical question is whether the accident arose out of worker's employment: did it arise from a risk reasonably inci to the work which he was called upon to perform? The inspe or supervisor had to hazard, in the performance of his duties, th acts or omissions of the contractor's men in the performance their duties in the work on which they were engaged. Thus, if men had been using the primus stove for heating plumbite for u upon the job when it exploded, then the causal connection betwe the inspector's employment and the accident would have been cle: enough. But in fact the water was being boiled, not for use upon the job, but for the lunch of the contractor's men employed upon the job. The contractor, however, contemplated that his men should have lunch, and his ganger directed one of them to boil the billy. It is a reasonable inference - or at least an inference which the Workers' Compensation Commission was entitled to draw - that boiling the billy for lunch was within the employment and duty of the contractor's man who was directed to do it (Morris v. Mayor &c. of Lambeth (1); Smidmore v. London and Thames Haven il Wharves Ltd. (2), queried in Ruegg's Workmen's Compensation, 9th e d (1922), p. 95). It was, as it seems to me, part of the inspector's or supervisor's employment to hazard any risk attached to this opera- tion, though he was not supervising, but just idly watching the operation : it was a risk reasonably incident to his work as inspegaey or supervisor.

The causal connection between the employment and the a is found here not so much in the risk attaching to a particular lo 'i but in the risk attached to the operations of the contractor's men within the sphere of their employment on the job, which the inspector was employed to watch or supervise. The risk in each case, however, is one reasonably incident to the work which it was the duty of the workman to perform.

The question stated in the case should be answered in the afirm- ative and the judgment of the Supreme Court of New South Wales discharged.

(1) (1905) 22 T.L.R. 22. (2) (1921) 14 B.W.C.C, 114.

g of the Workers' Compensation Commission that the injury which the death of the worker in this case resulted arose out 'his employment. He was employed as an overseer by the respon- dent Board. On 5th January 1931 a contractor for the Board menced some work at Long Bay Road, Maroubra, involving the ging of trenches. It was the duty of the deceased to inspect the work while it was in progress and to see that it was carried out ecording to the specifications of the contract. He appears to have

n supplied with a plan, and he was expected to keep "a watchful ye over everything on the job while the men were working." There no restriction on his movements except that his presence was ssary on the job during any work that was in progress. So long he fulfilled this requirement he could have his lunch when he ked and he was at full liberty during the luncheon interval. It is nt that upon the first day of work under a contract there might be little for an overseer to inspect. The accident occurred at about uarter to twelve. At about half-past eleven, the contractor's sent a workman down to " boil a billy " for the men's lunch. wr the purpose of heating plumbite a primus stove was available. altering or adjusting the position of some parts of the primus e so as to make the burner vertical it could be used for boiling . The workman lit the primus stove, and at about a quarter o twelve the billy was nearly boiling. It does not appear where s was done in relation to the place of work except that a witness that the men were still in the trenches and that four or five men e about forty yards away behind a box; nor does it appear ether the work was being done in a roadway or upon land under control of the Board. At a quarter to twelve the deceased was on his haunches near the primus stove watching the workman it. It began to back fire and blow and the workman proceeded prime it. Then it exploded and discharged its inflammable tents over the deceased. From the burns which he thus received subsequently died. No evidence was given of the deceased's its immediately before he took up his position near the stove or of the length of time he had occupied this position e the explosion took place. He had taken no part in manipu- g the stove. The workman in charge of it had known him for

J. In my opinion the evidence does not support the H.C. or A.

Srewarr v Merro- POLITAN Water, SEWERAGE AND Drarnace Boarp.

many years, but no evidence was given of any conversation be them. Much is left to conjecture, but it seems probable that the deceased, having no present duties of inspection to perform, w idly waiting at the place where hot water would be obtainable for lunch. At any rate, there is no evidence which suggests any pi of the Board's which could bring him in proximity to the boi billy and the primus stove at that time. His duties, as over required his presence in the vicinity of the work, and, therefore, is no doubt true that but for his employment he would not have bee! at the place where the accident happened at the time of its occurrence But it is not enough to satisfy the condition expressed by the wor "arising out of the employment " that the fact of employment w $s one of the conditions of the occurrence of the accident. A clo causal connection is required. "The injury by accident must hay occurred as something which would not have occurred but for the circumstance of the employment and as having been something due toit,theemployment . . . " (Lancashire and Yorkshire Rail Co. v. Highley (1) ). a 4

Many tests have been proposed for determining whether an accident (or injury) is due to the employment so that that it aris out of it. In Thom or Simpson v. Sinclair (2) Viscount Halda had elaborately expounded the conception of causation wl these words import. It is necessary to read his explanation in full to obtain a just understanding of his meaning, but it contains the statement that a condition required is that the injury should have arisen, not merely by reason of presence in a particular spot at a particular time, but because of special circumstances attending the employment there (pp. 134-135). In the same case Lord Shat referred to accidents totally disconnected with the nature of employment upon which the workman was engaged yet: springi

obligations or conditions thereof, and on that aes alone, he incurred the danger, and said that the expression " arising of the employment" " applies to the employment as such - to its nature, its conditions, its obligations, and its incidents. If

(1) (1917) A.C., at p. 360, per Viscount Haldane. (2) (1917) A.C., at pp. 134-136.

| danger and so injured or killed . . . the broad words ee arising out of the employment' apply " ( ie

0 ed to be always applicable "because it arises upon the ry words of the statute, and it is generally of some real assist- e, Itis this: Was it part of the injured person's employment hazard, to suffer, or to do that which caused his injury? If 1, the accident arose out of his employment. If nay, it did not, what it was not part of the employment to hazard, to suffer, cannot well be the cause of an accident arising out of the ployment. To ask if the cause of the accident was within the e of the employment, or was one of the ordinary risks of the ment, or reasonably incidental to the employment, or, con- ly, was an added peril and outside the sphere of the employment, e all different ways of asking whether it was a part of his employ- ment that the workman should have acted as he was acting, or hould have been in the position in which he was, whereby in the e of that employment he sustained injury." the " endeavour to obtain from decided cases a fixed standard urement by which to test the meaning of the words in the e 'in the course of' and 'arising out of' employment" was d by Lord Buckmaster in John Stewart & Son (1912) Ltd. ghurst (3) asa mistake. He said : - " Some of the reported eS. . . appear to me to have made the same mistake and have attempted to define a fixed boundary dividing the cases are Within the statute from those that are without. This it is impossible to achieve. No authority can with certainty do than decide whether a particular case upon particular facts is 'not within the meaning of the phrase " (4). tisk from which the deceased received his injuries arose from ition conducted for the benefit of the men employed by the , a benefit in which the deceased may or may not have to share. In exposing himself to it he was advancing no e of his own employer. His employment took him to the spot

(1917) A.C., at p. 142. (3) (1917) A.C. 249, at p. 258.
A.C., at p. 2372. (4) (1917) A.C., at pp. 358.259.

of any of these the workman is brought within the zone of H.C. or A.

Srewart v. Merro- POLITAN Water, SEWERAGE AND DRAINAGE Boar.

Srewarr v. Merro- POLITAN Water, SEWERAGE AND Drarace Boar.

only in the sense that it was in the neighbourhood of the w and that he was required to be somewhere within the undefined described by that expression. In Parker v. Owners of Ship B Rock (1) Lord Wrenbury says: "In order to succeed it is sufficient that he should show that but for his employment he not have been at the scene of the accident . . . he must that it was the employment which took him to the place of accident." In Lawrence v. George Matthews (1924) Ltd. (2), stating his fourth proposition, Russell L.J. (as he then was) s

brought him to the particular spot where the accident occurred, the spot in fact turns out to be a dangerous spot." In a sense present case may be said to depend on the meaning intended Lord Wrenbury's expression "the employment took him to place" (1) and Russell L.J.'s "the employment brought him t¢ the particular spot" (2) In a case such as the present, the whol connection between the accident and the employment lies in reason why the worker was at the point of danger. I can find reason in the evidence for the deceased's presence at the operal of boiling the billy which concerned his employment. It does appear to me to be the cause of his presence in any other sen : than that if he had not been employed he would probably have been elsewhere. In my opinion the decision of Harvey C.J. in Eq. and Halse Roge J. was right. ;

Appeal allowed with costs. Order of the Supreme Court discharged and in liew thereof ord that the case be remitted back to the Workers Compensation Commission with the intima- tion that the question of law referred for the decision of the Supreme Court is answer in the affirmative. Costs of the appeal to t Supreme Court to be paid by the responder Board.

Solicitors for the respondent, Williams & Hooke. IB

(1) (1915) A.C., at p. 732. (2) (1929) 1 K.B., at p. 19.

At a glance

Court

Decision date

Before

Source

Judgment (115 paragraphs)

Cited By (3)