Hetherington v Dublin and Blessington Steam Tramway Company

• Jurisdiction: Ireland
• Judgment Date: 16 March 1927
• Date: 16 March 1927
• Court: Supreme Court (Irish Free State)

Hetherington v. Dublin and Blessington Steam Tramway Company

HELENA HETHERINGTON

Applicant

and

DUBLIN AND BLESSINGTON STEAM TRAMWAY COMPANY, Respondents (1)

High Court.

Supreme Court.

Workmen's compensation - Fatal accident - Not arising out of employment - Unauthorised use of motor bicycle by workman in course of employment - Added peril - Burden of proof - Workmen's Compensation Act, 1906 (6 Ed. 7, c. 58), sect. 1, sub-sect. 1.

The duty of a workman was to proceed from the depôt of the respondent company to a place a mile and a quarter distant, and take charge of a tramcar. He was allowed fifty minutes for the journey, and he could have walked the distance in half an hour. He left the depôt on a motor bicycle belonging to another employee, which he took without permission. Nothing further was heard of the workman until a message was received by his wife that he had met with an accident, and had been taken to hospital. His head was fractured, and he died in hospital the next day. No evidence was given as to where exactly he was found or as to how the accident happened; but the motor bicycle was discovered in a smashed condition. The Circuit Court Judge having refused the application for compensation made by the widow of the deceased workman under the Workmen's Compensation Act, 1906, she appealed:

Held by the High Court, dismissing the appeal, that the Circuit Court Judge was entitled on the evidence to hold that the use of a motor bicycle was not contemplated by the terms of the employment, and that the deceased had taken out the motor bicycle for his own purposes, and that the accident arose from a risk peculiarly incidental to the use of a motor bicycle, and not reasonably incidental to the employment.

Held by the Supreme Court (affirming the High Court), that as there was no evidence as to how the deceased met his death, the applicant had not discharged the onus that lay on her of proving that the accident arose out of (as well as in the course of) the employment, and that the decision of the Circuit Court Judge could not be disturbed.

Per Murnaghan J.—It was open to the Circuit Court Judge to find that the use of the motor bicycle was not a risk contemplated by the employers as part of the contract between the parties.

Appeal from the Circuit Court.

The appeal was brought by Helena Hetherington from a decision of the Circuit Court Judge for Dublin, refusing her application for compensation under the Workmen's Compensation Act, 1906, for the death of her husband, John Joseph Hetherington, who died on August 24th, 1925, as a result of an accident which occurred the previous day.

The deceased was a workman in the employment, as guard, of the Dublin and Blessington Tramway Company. On the morning of August 23rd, 1925, he left his house at Firhouse on a push bicycle, and reported for work at the Terenure depôt of the tram company at or about 10 o'clock, from which hour he was in receipt of wages. His duty was to proceed to Templeogue, a distance of a mile and a quarter from Terenure, and take out a tram which was due to leave there at 10.50 o'clock.

He was allowed fifty minutes for the journey to Templeogue, and he could have walked the distance in half an hour. The company did not provide bicycles for any of its employees. The deceased was seen leaving the depôt at Terenure on a motor bicycle, the property of Gerald Stapleton, a fireman in the employment of the company, who rode the bicycle on his way to work that morning and then placed it in a shed, which the company had placed at the disposal of the employees for the purpose of keeping their bicycles. Stapleton gave no authority to the deceased to take and use the motor bicycle, and he did not see him taking it. He first heard about the matter when he saw his bicycle in a smashed condition at Templeogue.

Beyond the discovery of the smashed bicycle, there was no evidence as to what happened to the deceased; but the case in the Circuit Court proceeded upon the basis that he met with an accident when riding the motor bicycle. The widow of the deceased received a message from her niece on August 23rd that her husband had met with an accident and was in the Meath Hospital. His head was fractured, and he died next morning at 4 o'clock. No evidence was given as to the point in the road at which the accident happened, or as to where the deceased was found.

The Circuit Court Judge found that the accident happened in the course of the employment, but that it did not arise out of it. He was satisfied that the using of the motor bicycle by the deceased was not within the reasonable contemplation of his employment; that in taking out the bicycle the deceased was undertaking a risk not contemplated by the terms of his employment; and he accordingly dismissed the application for compensation.

From the decision of the Circuit Court Judge the applicant appealed to the High Court.

In pursuance to the leave thus given, the applicant appealed to the Supreme Court (1).

Cur. adv. vult.

O'Byrne J. :—

This is an appeal by Helena Hetherington against an award of the Circuit Judge of the County of Dublin, refusing an application under the Workmen's Compensation Act for compensation for the death of John Joseph Hetherington, the husband of the appellant, who died on the 24th August, 1925, as the result of an accident which occurred the previous day. The deceased was a workman in the employment of the Dublin and Blessington Steam Tram Company, and the accident is alleged to have arisen in the course of and out of the said employment. The Circuit Judge held that the...