In the case of Parker v. Owners of Black Rock , [1915] A.C. 725, Lord Sumner observed—“The remaining point that was made was that the accident could be brought within those cases in which a man having gone on shore for his own lawful purposes is returning to his ship and has so nearly approached the means of access to the ship as to make it reasonable to hold that he has returned to the sphere in which his employment operates, and therefore that the accident arises out of the employment. I do not think that this has ever been extended for any great distance. All that we know of this man's death is that it took place by falling off the north pier somewhere between the grocer's shop and the end of the pier where the ship was not, though he thought that she was there. The pier is a quarter of a mile long. Whether or not that long pier was all one means of access to an absent ship I will not say, but I think it is quite clear, as the County Court Judge has found nothing about it, that the argument is unsustainable before your Lordships.” Now in the present case I do not think that the small boat used by the deceased was at the time of the accident a means of access to the ship, if indeed it was so at any time. It was a means of transit to the island, but in no sense was it, in my opinion, a means of access, in the sense in which the phrase is used in the cases under the Workmen's Compensation Act, to the ship which was lying hauled up on a repairing slip. The deceased had no doubt taken steps to return to Kerrera, but I do not think he had taken any special step towards getting on board the” Lochinvar if indeed such language is appropriate to a ship hauled up on a repairing slip. The risk of being drowned in crossing from the mainland to Kerrera did not, I think, appertain specially to employmenton the “Lochinvar.” The boat was procured by M'Lean for his own purposes and to enable him to oblige his fellow-employee Cameron, and was not provided by or, so far as appears, with the knowledge of the employers.
The case is, in my opinion, ruled by the decision in Craig's case, 1914 S.C. 765. I may also refer to a case which was not cited in the argument before us, namely, Webber v. Wansborough Paper Company, Limited ,
[1915] A.C. 51. There Lord Moulton held that the injured workman was entitled to recover “because the accident occurred before he was outside the scope of his employment.” Here, I think, the workman's dependant is not entitled to recover because the accident happened while the workman was outside, and before he had returned to, the scope of his employment. I am therefore of opinion that the accident did not arise out of M'Lean's employment. The first question accordingly falls to be answered in the negative, and the second question, as I have explained, does not arise.
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Lord Dundas —The learned arbitrator has evidently bestowed great pains upon this case, but I do not think that his conclusion can be sustained. My difference from him is not, of course, on any matter of fact—for on the facts the decision of the arbitrator is final—but in regard to the legal inferences which ought to be drawn from the facts stated in the case.
In the view which I take it is not necessary to determine whether or not the accident arose in the course of the employment. I am disposed, upon the authorities, to think that it did, although the findings in fact are not very clearly stated. But as already said there is no need to decide the point, for I consider that upon the facts proved the arbitrator was not entitled to hold that the accident arose out of the employment.
At the time of the accident the deceased man John M'Lean was lawfully absent from the vessel. But I do not think he can be held to have been absent upon the ship's business, or in pursuance of any duty owed to his employers. An argument to the contrary was submitted, upon the view that M'Lean had gone to Oban to bring back a fellow-seaman, Cameron, to the ship. But this was in performance of a private arrangement between the two men, as an obligement by the one to the other; and there is no evidence that the arrangement was assented to by the ship's officers, or was even within their knowledge. The case seems to me therefore to fall directly within the “distinctly workable rule” expressed by Lord Parker, as “the result of the decided cases,” in Parker v. Owners of the “Black Rock,” [1915] A.C., at p. 729, in the following sentences—“It is not sufficient in order to make this an accident arising out of the employment that the accident happened during a period when the man was lawfully absent from the vessel. In order to make it an accident arising out of the employment, the absence from the vessel must be in pursuance of a duty owed to the employer.” It is true that in Parker's case the noble and learned Lords indicated that the applicant might possibly have succeeded if the findings of the County Court Judge had been such as to warrant an inference that the man, as Lord Sumner put it, having gone ashore for his own lawful purposes, was returning to the ship, and had so nearly approached the means of access to the ship as to make it reasonable to hold that he had returned to the sphere in which his employment operated. But in the case before us there is no room for any such inference. The learned arbitrator states—and it appears to me that the facts amply justify his conclusion—that M'Lean “met his death while distant over half a mile from the ship: and I am of opinion that, on a question of fact, he was not within the ambit of the sphere of his employment” This seems to me to end the matter. The arbitrator, however, reached a conclusion in favour of the applicant upon the ground that M'Lean, having got into a boat at Oban to cross over to Kerrera, “had taken a specific step towards getting on board,” and therefore the accident was one arising out of his employment. This view I think will not do at all. The phrase quoted seems to be borrowed from judicial dicta; see Kitehenham v. Owners of s.s. “Johannesburg,” 1910, 1 K. B., per Fletcher-Moulton, L.J, at p. 527, affd , [1911] AC 417 ; Craig v. Owners of s.s. “Calabria,” 1914 S.C. 765. But the dicta were used in cases where the accident occurred on the return of a seaman to his ship immediately prior to his actually getting on board—“the critical moment,” as Fletcher-Moulton, L.J., put it, “when the dangers to which he is exposed change from being of the one class to being of the other class”; the very class of cases in fact which go to support the arbitrator's conclusion here that the deceased man had not, when the accident occurred, so nearly approached the means of access to the ship as to make it reasonable to hold that he had returned to the sphere of his employment. The question whether or not a man has “taken a specific step towards getting on board” has never been treated as an independent—still less as a conclusive—test of whether or not the accident arose out of his employment.
The learned arbitrator plainly, in my judgment, puts the matter too high when he states, at the outset of his opinion, that the questions whether or not the accident “both arose ‘out of’ and ‘in the course of’ his employment are questions purely of fact,” falling to be determined by him. But I think further that the arbitrator has fallen into error through unduly sophisticating his mind by a painstaking analysis of decided cases. Even in his findings in fact one discovers precise reproductions of phrases compiled from judicial utterances. For example, findings 22 and 23 are so framed that Mr Moncrieff, with his usual candour, conceded that they cannot be taken as substantive statements of fact, but must be regarded as exegetical of facts contained in the preceding findings. I am afraid that the learned arbitrator has not had sufficiently in view the emphatic and most useful warning expressed by Lord Dunedin in Plumb's case, [1914] A.C., at pp. 65–6, where his Lordship appraises the value and the sphere of application of judicial tests and phrases illustrated by the decisions, and points out the dangers of their misuse—“A test embodied in a certain phrase is put forward, and only put forward, by a judge in considering the facts of the case before him. That phrase is seized on and treated as if it afforded a conclusive test for all circumstances, with the result that a certain conclusion is plausibly represented as resting upon authority which would have little chance of being accepted if tried by the words of the statute itself.”
For these reasons I am of opinion that we should answer the first question, which is not correctly stated, by finding that there was not evidence upon which the arbitrator was entitled to find that the deceased John M'Lean met his death by accident arising out of and in the course of his employment with the appellants. The parties were agreed that the second question is unnecessary and need not be answered.
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Lord Guthrie —M'Lean being engaged as a seaman—that is to say, in an employment of a continuous nature—I think that the arbitrator was right in holding that the accident in question arose in course of the deceased's employment. But I agree with your Lordships in thinking that the accident did not arise out of his employment. In the absence of any arrangement between him and the ship, M'Lean was at the time on his fellow-employee's business, and not on ship's business. He was not using anything connected with the ship, for the boat which upset did not belong to the ship. It was not as a seaman that he was in the boat, but as a person requiring to use a boat because his destination was an island. When the accident happened he was not in the process of getting on board his vessel, for he had a journey of nearly a mile to make before he could reach the shore near which his vessel had been pulled up on a slip for its annual overhaul. It appears to me that all the cases relied on by the pursuer were “getting on board” cases, as distinguished from merely “returning” cases. What will come within getting on board may in some cases be difficult to decide, but in this case the deceased had not reached the stage of his return journey when occasion arose for getting on board, or making preparations for getting on board, or even for getting on shore before proceeding to get on board the ship. If the arbitrator is right in holding it sufficient that the deceased was on his return to his ship, I do not see how the Court can distinguish between five-eighths of a mile—the distance in this case from the place where the boat upset and the jetty at Kerrera—and five or any number of miles, or between a boat on water, as in this case, and a train or other conveyance on shore. Suppose Cameron and the deceased had waited in Oban and taken the “Despatch” at 5·30 the following morning, as they might have done—the “Despatch” which runs regularly from Oban to Kerrera conveying the workmen of John Munro, Limited—it is clear, as it seems, to me, that if the “Despatch” had been upset and the deceased had been drowned, the accident would not have arisen out of his employment. I cannot see any essential difference between that case and the unfortunate accident which happened.
Lord Salvesen was sitting in the Lands Valuation Court.
The Court answered the first question stated in the case by finding that there was not evidence upon which the arbitrator was entitled to find that the deceased John M'Lean met his death by accident arising out of and in the course of his employment with the appellants, fouud that the second question did not arise, and recalled the determination of the Sheriff-Substitute as arbitrator.
Counsel for the Appellants— Macmillan, K.C.— Mitchell. Agents— Blair & Cadell, W.S.
Counsel for the Respondent— Moncrieff, K.C.— Paton. Agents— Maxwell, Gill, & Pringle, W.S.