Hutchinson v Irish Electrical Construction Company

CourtSupreme Court (Irish Free State)
Judgment Date10 April 1935
Date10 April 1935

High Court.

Supreme Court.

Hutchinson v. Irish Electrical Construction Co.
In the Matter of the Workmen's Compensation Act, 1906, and in the Matter of the Courts of Justice Act, 1924, and in the Matter of an Arbitration between KATE HUTCHINSON AND OTHERS, Applicants, and THE IRISH ELECTRICAL CONSTRUCTION COMPANY, Respondents(1)

Workmen's compensation - "Arising out of and in the course of the employment"- Prohibition limiting sphere of employment - Ascent of standard carrying electricity wires before current cut off - Workmen's Compensation Act, 1906 (6 Edw. 7, c. 58), sect. 1, sub-sect 1.

Appeal from the Circuit Court.

The applicants applied to the Circuit Court Judge at Dublin (Judge Davitt) for an arbitration under the Workmen's Compensation Act, 1906, in respect of the injury caused to them by the death of Michael Hutchinson, who was killed, being electrocuted by contact with a "live"electric wire at Mullingar on the 4th July, 1930. It was contended that the death of Michael Hutchinson was caused by an accident arising out of and in the course of his

employment by the respondents. On the 13th March, 1931, Judge Davitt heard the application and dismissed it, and from his decision the applicants appealed.

The facts have been summarised in the headnote and are fully stated in the judgment of the Chief Justice.

The High Court certified, under sect. 61 of the Courts of Justice Act, 1924, that their decision involved a question of law of such importance as to be fit to be the subject of an appeal to the Supreme Court. Pursuant to the said certificate, the applicants appealed to the Supreme Court (1)from the order of the High Court and applied for an order that the said order might be set aside and discharged or varied as to the Supreme Court might seem right, and that in lieu thereof it be ordered that an award be made in favour of the applicants under the Workmen's Compensation Act, 1906; or, alternatively, that the matter be referred back to the Circuit Court Judge to re-hear and properly determine the request for arbitration.

The applicants claimed compensation under the Workmen's Compensation Act, 1906, as dependants of a deceased workman employed by the respondents. The deceased was employed by the respondents in connection with their work in carrying out an electrical installation in a number of houses. On the day of his death, his work included fixing shackles to the wall of a house and shackles and insulators to a pole or standard for the purpose of the main wires being connected to the house. Without a specific order or direction to do so at that time, he placed a ladder against the pole and ascended it, carrying shackles and insulators. He apparently lost his balance at the top of the ladder, clutched the main wires, and was electrocuted. The evidence for the respondents was that the deceased had been instructed that when he had finished his prior work, he was to report to the engineer or to the foreman that he wanted the line switched out and that he was ready to ascend the pole; and that no one was to ascend the pole without a note in writing from the operator or engineer. There was also evidence, corroborated by one of the applicants' witnesses, that a few days previously the deceased had started to ascend a pole; that the foreman had warned him that the line was "live" and that he should not attempt to go up and had bidden him never to do it again. The foreman also gave evidence of the existence of a book of safety rules (including one forbidding any man to work on live contacts) which he said he had, some time before, in another town, read out to a number of workmen, including the deceased.

Held by the Supreme Court, affirming the High Court (Sullivan P. and O'Byrne J.) and the Circuit Court Judge, that it was outside the scope and sphere of the employment of the deceased to ascend the pole unless and until he had applied to have the electric current cut off and had received a note in writing that this had been done, and that, accordingly, the application must be refused.

Moore & Co. v. Donnelly, [1921] 1 A. C. 329, applied.

Sullivan P. :—

In this case the facts were not in dispute, and the only question the Circuit Judge had to decide was whether the deceased met his death by an accident arising out of and in the course of his employment. The deceased was killed by coming in contact with a live wire attached to the top of a standard which he had climbed. He had been warned that he was not to climb any standard when the wire attached to it was alive, and that warning had been given to hin on more occasions than one. In these circumstances the Circuit Judge held that the accident did not arise out of the employment, and from that decision this appeal has been brought.

If the decision of the Circuit Judge was a finding of fact this Court could not interfere with it if there was any evidence to support it; if it was the determination of a question of law it would be open to review by this Court. I do not find it necessary to decide whether that decision was one of fact or of law, as even if I take the view of it most favourable to the appellants—that it was the decision of a question of law and as such subject to review by this Court—I think this appeal must be dismissed.

It is quite hopeless to attempt to reconcile the decisions in the various cases in which the meaning of the words"arising out of and in the course of the employment"has been considered. But there are decisions of the House of Lords which are of assistance, and these were discussed in the arguments before us. Mr. Lavery admitted that when the deceased met with the accident which resulted in his death he was doing a prohibited act, but he argued that that does not necessarily disentitle the appellants to recover compensation. That proposition is now well established. The question in each case is:—Did the accident arise out of and in the course of the employment?—and in determining that question the fact that the accident happened while the workman was doing something he was prohibited to do is not necessarily conclusive. To assist the Court in determining that question there are certain tests which may be applied. In Plumb v. Cobden Flour Mills Co., Ltd. (1), Lord Dunedin says (p. 66):—"I propose shortly to examine some of the tests which have been found useful in the various cases which have occurred where the point was whether or not the accident arose out of the employment. The first and most useful is contained in the...

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2 cases
  • O'Rourke v Gunning [Supreme Court.]
    • Ireland
    • Supreme Court
    • 11 February 1941
    ......v. Donnelly (1) , and by the Supreme Court of the Irish Free State in Hutchinson and Others v. Irish Electrical ......
  • Toner v Dublin Trawling Ice and Cold Storage Company Ltd
    • Ireland
    • Supreme Court
    • 21 December 1945
    ...[1924] A. C. 59. (3) 45 I. L. T. R. 11. (4) 6 B. W. C. C. 220. (5) [1917] A. C. 352. (6) [1921] 1 A. C. 329. (7) [1930] I. R. 93. (8) [1935] I. R. 452. (9) [1941] I. R. 108. (10) 9 B. W. C. C. 264. (11) [1920] 1 K. B. 414. (12) [1940] 1 K. B. 56. (13) [1940] 1 K. B. 180. (14) 5 B. W. C. C. ......

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