|
ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ
|
|
|
(V22) 1 CLR 165
1957 September 25
[ZEKIA AND ZANNETIDES JJ.]
THE HELLENIC MINING CO. LTD.,
Appellants,
AND
LISSANI MOUSLI,
Respondent.
(Civil Appeal No. 4221).
Workmen's Compensation-Injury suffered out of and in the course of employment-Tests applied-Exoneration of employer from liability-Workmen's Compensation Law, Cap. 216, section 6.
The respondent was a miner employed by the appellant mining company, and it was part of his duty to break up acetylene in small pieces in order to fill up his lamp supplied by the appellant company and used by him while working in the mine. Miners in the employment of the appellant company were required to have their lamps filled up and ready for use before they went down the mine to start work.
One morning while the respondent was in his house engaged in breaking up acetylene to fill up his lamp a splinter injured his eye.
The company's regulations prohibited workmen from taking acetylene away from the mining area, but there was evidence that, with the full knowledge and approval of the company's officers, miners were allowed for a considerable time to carry acetylene to their houses in order to fill up their lamps.
Held: (1) that, in order to exonerate an employer from liability in a case where it was alleged that the workman sustained the injury on account or while he acted in contravention of a rule or regulation of the employer, such contravention on the part of the workman should be deliberate or with a reckless disregard of such rule or regulation;
(2) that an act which had been prohibited, or was otherwise unauthorised, might still be regarded as one within the sphere of employment if it had been the practice of the workmen to ignore the prohibition or to act in the particular manner which had caused the injury, and the practice had been permitted or connived at by the employer or his responsible officials; and that the onus of proof of the recognition of the practice rested on the workman;
(3) that there were prohibitions which limited the sphere of employment, and prohibitions which only dealt with conduct within the sphere of employment, and that a transgression of a prohibition of the latter class left the sphere of employment where it was, and it consequently did not prevent recovery of compensation;
(4) that, as it was part of the workman's (respondent's) duty to break up acetylene and fill up his lamp, and as he was engaged in doing something incidental to his employment, although out of working hours, the accident arose out of and in the course of his employment, and the appellant company was liable to pay compensation.
Tests to be applied in determining whether an accident arose out of and in the course of a workman's employment.
Cases referred to:
(1) Lancashire and Yorkshire Railway v. Highley (1917) A.C. 359.
(2) Mellor v. Ashton (1921) 14 B.W.C.C. 128.
(3) St. Helen's Colliery v. Hewitson (1924) A.C. 71.
(4) Jenkins v. Elder Dempster Lines (1953) 2 All E.R. 1136.
(5) Sexton v. Hosford (1916) 9 B.W.C.C.
Appeal.
The appellants appealed against the order of the District Court of Nicosia (Theocharides P.D.C.), dated 30th April, 1957 (Workmen's Compensation Application No. 19/56), by which they were ordered to pay compensation to the respondent for personal injury sustained by him by accident arising out of and in the course of his employment.
X. Clerides for the appellants.
G. Ladas for the respondent.
The facts sufficiently appear in the judgment of the Court which was delivered by:
ZEKIA J.: This is an appeal from an order of the President, District Court, by which the appellant company was ordered to pay to the respondent £240 compensation for the injury received in his right eye which resulted in practically losing his said eye.
The appellant company is engaged in mining operations at Mitsero. The respondent is a miner living in the village of Peristerona some 9-10 miles away from the locality where mine operations are carried out. In the morning of the 27th February, 1956, at about 5.45 a.m. while the respondent was engaged in breaking acetylene for filling up his acetylene lamp, supplied by the company, and used by miners while working in the mines, a splinter broke off the acetylene and injured the workman's right eye to the extent we mentioned.
The appellant company used to pick up their workmen daily in the morning and carry them to the mines in the company's bus free of charge and also take them back to their village after the termination of their work.
It is in evidence that it has been accepted as true by the learned President that the workmen were required to fill up their lamps with acetylene-supplied in solid form which resembled a hard stone-by breaking it into small pieces so as to enable them to place the same into the lamp. Mention was made as to·regulations prohibiting the taking away of acetylene in tin boxes from the barracks, in the neighbourhood of the mine, but this was posted in Greek and there is no evidence that the contents were communicated to the workman in question, whose mother tongue is Turkish. On the contrary there is evidence that the workmen for a considerable time in the past, with the knowledge of the company's foremen, carried acetylene in tin boxes to their houses and there, after breaking the acetylene into pieces, they filled up their lamps which they used during their work in the mines. In other words there was evidence before the learned President to find that the breaking of acetylene and filling of the lamps of the workmen in their houses was a practice recognised by the company. Apart from this there was also ample evidence before him to find that the breaking of acetylene and filling of their lamps constituted part of the workmen's duty. Workmen were required to have their said lamps filled up and ready before they actually entered the mine pit and started their work.
The appellant's grounds of appeal were six, but during the hearing the learned counsel of the appellant dropped the last three of the grounds and limited his arguments on the first three.
By ground 1 it is contended that the injury of the respondent was not suffered out of and in the course of his employment. Ground 2 is that the learned President was wrong in concluding that the workmen for a considerable time were allowed to take acetylene to their houses and fill up their lamps there and this was against the regulation. Ground 3 relates to ground 2 with an addition that in coming to the conclusion described in ground 2 the Court misdirected itself.
We propose, to deal with grounds 2 and 3 first. Lord Finlay in Lancashire and Yorkshire Railway v. Highley (1917) Appeal Oases, 359 remarked:
"It has been often pointed out that it is highly undesirable that the findings of fact by the county court judge in workmen's compensation cases should be overruled in the Courts of appeal I would refer especially to what was said on this subject in the case of Baker v. Earl of Bradford in your Lordships' House."
There was evidence before the learned President that the workmen for a considerable time with full knowledge and approval of the appellant's officer were allowed to carry acetylene from the barracks of the company to their houses in order to prepare their lamps for their work. Viscount Haldane in p. 360 of the same case stated:
"It must be borne in mind that the county court judge has expressly found that it was not fulfilled, and that a Court of appeal ought not to review his finding unless it is clear either that there was no evidence to support it, or that the finding was on the face of it erroneous in law".
As to the printed regulations requing the workmen to prepare their lamps in the barracks, there is no evidence that the contents thereof were brought to the notice of the workmen and these regulations were printed in a language with which the workmen was not acquainted and, at any rate, he could not read. Furthermore, the violation of such regulations by miners, by taking acetylene home and preparing their lamps, went on for a considerable time and and no steps were taken either to draw their attention to the contravention or to call them to discontinue this practice. It does not appear from the evidence that the process of smashing acetylene and filling up lamps was carried out differently in the barracks than the way the lamps were prepared by workmen in their houses. No particular or safer device or means was provided in the barracks for the same process. In other words, no additional risk was run by the workman for the performance of this part of his duty when he chose to do it at home. In order to exonerate an employer from liability in case where it is alleged that the workman sustained the injury on account or while he acted in contravention of a rule or regulation of the company, such contravention on the part of the labourer should be deliberate or with a reckless disregard. Section 6 (b) (ii) of the Workmen's Compensation Law, Cap. 216, reads:
"A contravention of any Law, regulation, rule or order, whether statutory or otherwise, expressly made for the purpose of ensuring the safety or health of workmen, or of preventing accidents to workmen, if the contravention was committed deliberately or with a reckless disregard of the terms of such Law, regulation rule or order;"
In the present case, as the President said in his judgment, there was no evidence that the contents of the regulations in question were communicated or brought to the knowledge of the workman and in such a case we cannot assume that there was a deliberate or reckless disregard of regulations by a workman. Furthermore, it has been proved that a practice has been established which was contrary to such regulations. In this connection I read from p. 52-53 of Willis's Workmen's Compensation, 36th Edition:
"An act which has been prohibited, or which is otherwise unauthorised or unwarranted, may still be regarded as one within the sphere of employment if it has been the practice of the workmen to ignore the prohibition or to act in the particular manner which has caused the injury, and the practice has been permitted, connived or "winked" at by the employers or their responsible officials. The onus of proof of recognition of the practice rests on the workman. (Mellor v. Ashton (1921) 14 B.W.C.C. 128)."
We also read from the same book, page 46:
"It is necessary to consider the character and effect of the rules because there is a clear distinction to be drawn between an order which defines what work shall be done by a workman, and an order which merely defines how the work shall be done. The proposition has been thus formulated: There are prohibitions which limit the sphere of employment, and prohibitions which only deal with conduct within the sphere of employment. A transgression of a prohibition of the latter class leaves the sphere of employment where it was, and consequently will not prevent recovery of compensation."
We do not think, therefore, that the appellant could succeed on grounds 2 and 3.
We turn now to the main ground of appeal, namely, ground 1. Section 6 of the Workmen's Compensation Law is as follows:
"If in any employment a workman suffers personal injury by accident arising out of and in the course of his employment his employer shall be liable to pay compensation."
This is similar to the Workmen's Compensation Acts in England. As the learned counsel of the appellant pointed out, there are two requisites which should exist to enable a workman who suffers personal injury by accident to recover compensation from the employer: (a) That the accident should arise out of his employment and (b) in the course of his employment. It was stressed during the arguments that even if the accident had arisen out of his (respondent's) employment it did not occur in the course of his employment and as such he is not entitled to any compensation.
The learned counsel of respondent referred to the test propounded by Lord Sumner in Lancashire and Yorkshire Railway v. Highley cited above. It is the following, at page 372:
"Was it part of the injured person's employment to hazard, to suffer or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not."
This test is valuable for ascertaining the first requirement just referred to. No, doubt the two phrases, namely, arising out and in the course of employment overlap because both are co-related and bound up. However, the test suggested for the second requisite by Lord Atkinson in St. Helen's Colliery v. Hewitson (1924) Appeal Cases 71, is very helpful:
"I myself have been rash enough to suggest a test-namely, that a workman is acting in the course of his employment when he is engaged 'in doing something he was employed to do.' Or what is, in other and I think better words, in effect the same thing-namely, when he is doing something in discharge of a duty to his employer, directly or indirectly, imposed upon him by his contract of service. The true ground upon which the test should be based is a duty to the employer arising out of the contract of employment, but it is to be borne in mind that the word "employment", as here used, covers and includes things belonging to or arising out of it."
A more simple test for the second requirement was suggested in a recent case by Sir Raymond Evershed, M.R. in Jenkins v. Elder Dempster Lines (1953) 2 All E.R. 1136:
"Was the workman at the relevant time acting in the scope of his employment?"
The facts of the present case as found by the learned President support the presence of both requisites in this case. It was part of the workman's duty to break acetylene and fill up the lamp and this clearly satisfied the test of Lord Sumner. He was at the time employed by the appellant company and indeed the accident happened shortly before the company's bus was due to take him to the mines. The expression "in the course of the employment" does not mean merely "during the currency of the time of the engagement" (see p. 22 of Willis's Workmen's Compensation) and when we apply the test suggested by Lord Atkinson we find no difficulty in saying that the circumstances in this case fulfil also the second requisite because he was engaged in doing something which he was employed to do; and the word 'employment' as is suggested in the test covers and includes the incident of employment. It makes no difference that the accident occurred out of working hours. In Sexton v. Hosford (1916) 9 B.W.C.C., "A baker returned to a dough-mixing machine after the day's work was finished, in order to oil the machine, as was necessary if it was to work properly on the following day. He was injured while doing so. There was contradictory evidence as to whether the baker or a special man had to oil the machine, but the baker said he understood it was part of his contract of employment to do so. Held, there was evidence to support the finding of the arbitrator that the accident arose in the course of the employment."
In Highley's case the workman after changing his train was waiting at a railway station to catch another train which would have taken him to his place of employment. He had to wait for one and half hours and during that interval he wanted to go to the mess room in the station to prepare his meal there. In order to reach the mess room he attempted to cross the line by crawling under a truck which was at the time stationary, but at the moment he crawled under it, it was moved and crushed him to death. There is clear indication throughout the judgment in that case that had the workman not followed a dangerous route which constituted an "added peril" and followed the usual path he would have been entitled to recover compensation. The workman in the present case was engaged in doing something incidental to his employment and it was shortly before he was to be collected by the company's bus from his village to the place of his employment that the accident occurred.
We think therefore that in the circumstances of this case the learned President was right in finding that the accident which caused the loss of one eye of the respondent had arisen out of and in the course of his employment. Appeal dismissed with costs.
Appeal dismissed.