Health and safety: general definitions - Part 2
IN THE COURSE OF EMPLOYMENT
Work away from employer’s premises
General Cleaning Contractors Ltd v Christmas (1952)
C was cleaning a sash window at premises away from the employer’s office. The top frame of the sash window slipped downwards, trapping his fingers. He let go of his had hold on the lower frame and fell from the window sill on which he was standing. He was injured and claimed compensation from his employer.
The employer was found liable for its failure to implement a safe system of work even though the premises at which the work was done was some distance from its office.
National Coal Board v England (1954)
E was a coal miner. Against clear instructions and statutory regulations he assisted a shotsman to set up shot blasting. He coupled up wires which were part of the detonator mechanism. If he had been obeying his instructions he would have been well out of the way. The employer did not know that miners often helped a shotsman in this way. The shotsman thought that E had moved to a safe place. He detonated the explosive. E was very close to the explosion and was injured. He claimed compensation on the basis of the employer’s liability for the negligence of a co-worker. The employer’s defence was that E had acted entirely outside the scope of his employment in helping the shotfirer and that this had been in direct disobedience of working instructions and an infringement of coal mining legislation. This put E’s act outside the scope of his employment.
The House of Lords disagreed. E had been carrying out the work of a miner but doing it in a wrong way. It could not be said that in acting against instructions he was engaged in work totally outside his employment. The employer was liable but E’s compensation was reduced because of his contributory negligence.
Injury during journey from home to appointment
Nancollas v Insurance Officer (1985)
N was a disablement resettlement officer. He had to cover a wide area. On one day he had to travel from his usual office in Worthing to the Guildford office for a case conference about a disabled man. At the conference it was decided that he should interview the man at Aldershot on the following day. He drove directly from his home to Aldershot. During this journey he was involved in an accident and suffered neck injuries. He claimed industrial injury benefit. His entitlement depended on whether he was acting in the course of his employment at the time of the accident.
The Court of Appeal made the following points:
Each case depended on its own facts. There were no hard and fast rules.
Earlier cases which concentrated on the question of whether a worker was carrying out his employer’s instructions at the time had been, to a large extent, overtaken by developments in society generally. They had been decided at a time when employees were truly servants of their master.
The employment relationship was now different. It was no longer based on orders and instructions, but on requests and information. Contractual rights and duties were supplemented by mutual expectations of co-operation.
In older cases it had been held that employees were not in the course of employment while on their way to work from home. But it was a totally different case to be on the way from home to an appointment away from the office.
In a true sense, the road was the place of work and the employee was in the course of his employment while driving to his employment.
It would be a nonsense to allow a claim from someone who was injured on these facts while on his way from his normal office, but to disallow a claim just because the person had chosen to go to his appointment straight from home.
Travelling between two places of work
Smith v Stages and Darlington Insulation Co Ltd (1988)
M was employed as a lagger at a power station. He and S, a colleague, were told to work for a week at another power station. They travelled to the other power station in S’s car. They worked a total of 19 hours and had no sleep. During the journey home, because of S’s fatigue, an accident happened which caused M to suffer serious injuries. He did not fully recover and died two years later. Proceedings were brought against S. It emerged that S had no insurance and the claim was amended to include the employer as defendant. It was alleged that S was driving the car either as the agent of the employer or in the course of his employment. At first instance, the court found that the driving had not been done in the course of S’s employment. M’s widow appealed to the Court of Appeal.
The Court of Appeal found that the journey had been made in the course of employment. The employer had authorised S to drive. The employer appealed to the House of Lords.
The Lords dismissed the appeal and made the following points:
An employee travelling from his ordinary residence to his regular place of work, by whatever means of transport, even if it was provided by his employer, is not acting in the course of his employment. But if he is obliged by contract to use his employer’s transport, then he is acting in the course of his employment while doing so.
Travelling in the employer’s time between workplaces or in the course of a peripatetic occupation, whether accompanied by goods or tools or simply in order to reach a succession of workplaces, will be in the course of his employment.
Receipt of wages will indicate that an employee is travelling in his employer’s time and for his benefit, and is acting in the course of his employment. In such a case, the fact that the employee might have discretion as to the mode and time of travelling, will not take the journey out of the course of employment.
An employee travelling in the employer’s time from his ordinary residence to a workplace other than his regular workplace, or in the course of peripatetic occupation, or to the scene of an emergency, will be acting in the course of his employment.
A deviation from or interruption of a journey undertaken in the course of employment, unless merely incidental to the journey, will for the time being (including overnight interruption) take the employee out of the course of his employment.
Return journeys are to be treated on the same footing as outward journeys.
Police officer injured while playing football
Faulkner v Chief Adjudication Officer (1994)
F, a police officer, claimed disablement benefit for an injury suffered while he was playing football for a police football club. He argued that he had sustained personal injury arising out of and in the course of his employment. His claim was rejected on the basis that he had not been doing his job at the time of the injury. F appealed to the Court of Appeal on the ground that the role of the police had changed and that it could no longer be said that football amounted to recreation.
The appeal was dismissed. The question could not be answered by considering whether an injured person had been doing something reasonably incidental to his work. It was important to look at the factual picture as a whole and to reject any approach based on the fallacious concept that any one factor was conclusive.
J & F Stone Lighting and Radio Ltd v Haygarth (1966)
H was employed as a television and radio repair engineer. Most of his work involved the repair or replacement of parts or adjustment of sets. The issue in the case was whether this amounted to “manual labour”.
The House of Lords ruled as follows:
The test of manual labour did not rely on physical strength. It was not a question of arduous work.
The whole character of the work had to be looked at. The test was whether, on the whole, the use of hands was a substantial part of the work. Where work involved partly manual and partly intellectual work, it had to be analysed to see which was incidental to the other. If the manual work was ancillary or incidental to the intellectual work, then it would nit be “manual labour”. But if the manual aspect was predominant, then it would qualify as manual labour.
In the present case, H’s work was predominantly a routine manual use of tools on work which was familiar to the engineer. It was therefore “manual labour”.