Non-fatal Accident

William Wales

Durham Miners' Association
Compensation Committee

2071. New Herrington. William Wales, 68, rolleywayman.

Was coming from work on December 27th, 1916, when he fell over a switch on the colliery railway, and injured his shoulder, and claimed that the accident arose out of and in the course of his employment. Committee failed to agree.

Source: NEEMARC - Ref: NUMDA/1/6/42, D.M.A. Minutes, Circulars etc. for 1917 (one volume: covers Jan-Jun)

Durham Miners' Association
Compensation Committee

New Herrington Appeal Case.

This was a case of a man named William Wales, 68, rolleywayman. On December 27th, 1916, Wales was coming from work when he fell over a switch on the colliery railway and injured his shoulder. The case was before the Committee in March, and the Committee failed to agree. As there were some cases of a similar nature, owing to the severe winter weather, we thought this was the best one to take to the County. Court for a test.

We took it to the Durham County Court in April, and Judge Bonsey decided the accident did not arise out of Wales's employment.

Our Solicitor, knowing the importance of the case, advised us to take it to the Court of Appeal. This we did. and the following is the judgment which you will note is in our favour :—

COURT OF APPEAL.

Monday, 9th July, 1917.

BEFORE

LORD JUSTICE SWINFEN EADY,

LORD JUSTICE BANKES, AND

LORD JUSTICE WARRINGTON.

WALES

v.

LAMBTON AND HETTON COLLIERIES.

Counsel for THE APPELLANTS Mr Lowenthal, instructed by Messrs Isaacs & Heath, Solicitors, Sunderland.

COUNSEL FOR THE RESPONDENTS: Mr Rigby Swift, K.C., M.P., and Mr Meynell, instructed by Messrs Cooper & Goodger, Solicitors, Newcastle-on-Tyne.

JUDGMENT.

LORD JUSTICE SWINFEN EADY: This is an appeal under the Workmen's Compensation Act from the award of the learned County Court Judge in favour of the Respondents.

The Appellant was a worker engaged at the Respondents' Colliery. The shift in which he was working finished work at 5.30 on the morning of the 27th December last. It was then quite dark. The applicant left the pit and passed across a gangway over some railway lines, and proceeded down some steps on the other side and passed on to the lamp cabin where he gave up his lamp. In order to reach what is referred to as "the street" or "road" he had to pass two sidings. When he arrived at the first siding where he had to cross a pair of rails, the morning being frosty, he slipped and fell with his right arm on the rail and injured his arm and shoulder. It was a frosty morning and there was ice all about. At the place where the accident happened and close to it the line where he slipped joins another one. It was part of the colliery premises. It would be some little distance from that and he would have to pass another set of rails before he got on to the street or road in which his house was: that is to say, at the time of the accident he was still on the colliery premises and in the place where by the terms of his employment he had to be. It was urged before the County Court Judge that the accident arose out of the employment, and if the rail had not been there probably the accident would not have occurred and the Applicant would not have injured his arm when he fell. The County Court Judge held that the accident did not arise out of the employment, but that the Applicant slipped and fell in consequence of the ground being covered with ice owing to frost. The question is whether the Applicant has established that the accident arose out of as well as in the course of the employment.

Now the Applicant was still upon the colliery premises where he was employed, and he had not left them. It was his duty that brought him to the very place in which the accident happened. In my opinion, upon the facts of the case it must be held that this accident arose not only in the course of his employment, but out of his employment. In the recent case of Thom or Simpson v. Sinclair (1917, Appeal Cases, page 127) Lord Shaw said at page 142 : "My view of the statute is that the expression arising out of the employment is not confined to the mere nature of the employment.' The expression, in my opinion, applies to the employment as such — to its nature, its conditions, its obligations, and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute 'arising out of the employment' apply. If the peril which he encountered was not an added peril produced by the workman himself" (that is not suggested here) "as in the cases of Plumb and Barnes in this House, then a case for compensation under the Statute appears to arise." Here it was by reason of the workman's employment that he was compelled to be in this particular place. It was the ordinary way of leaving the colliery premises to go to his home. There is no suggestion that it was a way that he ought not to have taken or a prohibited way. It was the ordinary way home, and slipping and falling with his arm on this rail at this spot was in my opinion an accident that arose out of as well as in the course of his employment.

For these reasons I am of opinion that the appeal should be allowed and an award made in favour of the workman.

LORD JUSTICE BANKES: I agree. Mr Meynell, for the Respondents, has sought to bring this case within what he says is the principle of the weather cases, as he calls them. He says the principle to be deduced from those cases is that where a workman suffers an injury arising from what might be called a general peril to the public at large, then in order to recover he must show that the employment subjected him to some special liability to injury from such perils. The cases Counsel mentioned were the frost-bite case, the sunstroke case, and the lightning case. That may be perfectly true with certain qualifications, because the workman can satisfy the obligation which Mr Meynell says is upon him if he shows that the particular peril which was the cause of his accident was a peril attached to the particular place where he was compelled to be or entitled to be in the course of his employment. In this case the workman complains that he was injured owing to the dangerous condition of his employers' premises, and a part of the premises which even if he was not compelled to cross he was entitled to cross on his way home. In my opinion the facts establish quite plainly that frost had attached to that particular part of those premises a peril, and it was as a result of that peril that the injury which the workman complained of resulted, and under those circumstances he brings himself entirely within the authority of the cases to which we have been referred and outside the class of cases to which Mr Meynell referred which he called the weather cases. I agree that the appeal should be allowed.

LORD JUSTICE WARRINGTON: I am of the same opinion.

It was part of the conditions of this man's employment that he should be at a certain place on his way from the place where he actually worked to his home. In that place he met with an accident the result of exposure to a peril which was attached to that place. The particular peril happened to be that that morning when the accident happened the surface of the ground was covered with ice. None the less the peril was a peril at the place which he had to cross, and he was crossing that as part of the conditions of his employment. It seems to me under those circumstances the accident was properly said to happen not only in the course of his employment but out of his employment.

I will read just one short passage from Lord Shaw's Judgment in the case of Thom or Simpson v. Sinclair which appears to me to be applicable to the present case. "It was part of the conditions of the Appellant's labour and part of the obligations which she undertook as a servant of the Respondent that she should at the time of the accident occupy this particular place of work which turned out to be a place of special danger. Her service there and not anywhere else brought her into the position of being subjected to this peril. It was not a peril which might fall upon the public at large, such as the severity of the weather, as in Warner v. Couchman and Karemaker v. Owners of s.s. Corsican, but it was a peril attached to the particular location in which by the obligation of service the Appellant was placed."

In my opinion, although the peril may have been attached to other places as well, yet it was a peril attached to. this particular location and was incurred by the Applicant. In my opinion, the Judgment of the learned County Court Judge was wrong and should be reversed.

MR LOWENTHAL: My Lord, by arrangement between the Coal Owners and the Association we do not ask for any costs in the Court below and so I ask your Lordship to allow the appeal with costs in the Court of Appeal.

LORD JUSTICE SWINFEN EADY: The appeal will be allowed in favour of the workman with the costs of the appeal.

MR LOWENTHAL: And there will be an award of £1 a week from the date of the accident.

LORD JUSTICE SWINFEN EADY: Very well. Is that an agreed figure?

MR LOWENTHAL: Yes, my Lord.

Source: NEEMARC - Ref: NUMDA/1/6/43, D.M.A. Minutes, Circulars etc. for 1918 (two volumes: covers Jan-Jun, Jul-Dec)

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