McDonnell v Sevitt

• Jurisdiction: Ireland
• Judgment Date: 30 March 1938
• Date: 30 March 1938
• Court: Supreme Court

M'Donnell v. Sevitt.

In the Matter of the Workmen's Compensation Act,1934, and in the Matter of an Arbitration between BARTHOLOMEW M'DONNELL Applicant, and ARTHUR SEVITT, Respondent (1)

Supreme Court.

Workmen's compensation - "Arising out of and in the course of the employment"- Unauthorised use of motor cycle combination in course of employment - Added peril - Meaning of the words "for the purpose of and in connection with his employer's trade or business" - Workmen's Compensation Act, 1934 (No. 9 of 1934), sect. 15, sub-sects. 1 and 2.

Sub-sect. 2 of sect. 1 of the Workmen's Compensation Act, 1934, provides:—

Where an accident results in the death or serious and permanent disablement of a workman, such accident shall, for the purpose of this Act, be deemed to arise out of and in the course of his employment notwithstanding the fact that such workman was at the time when said accident happened acting in contravention of any statutory or other regulation applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instructions from his employer, if such act was done by such workman for the purpose of and in connection with his employer's trade or business.

G. M., up to the date of the accident which caused his death, was employed by the respondent as a mechanic in connection with respondent's radio business. The respondent had in his employment several other mechanics and assistants whose duty it was to proceed to the homes of his customers for the purpose of erecting aerials and effecting necessary repairs. These mechanics and assistants usually travelled to their destinations on their bicycles or by means of trams or buses and had never used a motor cycle for that purpose. About three days before the date of the accident the respondent acquired a motor bicycle and gide-car combination with the intention that P. E., one of his mechanics, should drive it for the use of himself and other employees in connection with his (respondent's) business, but no other member of the staff was authorised to use it. From the date of its delivery it had been garaged at the respondent's private garage and, apparently, had never been taken out until the date of the accident, when, without the respondent's knowledge, another employee, A. N., proceeded to drive it, taking G. M. with him as his passenger for the purpose of attending to the business of their common employer. The vehicle collided with a standard, as a result of which G. M. and A. N. were both killed. On appeal from the decision of the Circuit Court Judge dismissing an application for compensation under the Workmen's Compensation Act, 1934, brought by a dependent of G. M.:

Held by the Supreme Court that, on the evidence, the Circuit Court Judge was entitled to hold that the accident arose from the doing of an act which the workman was neither engaged nor entitled to perform, and that accordingly it was not an accident arising out of his employment within the meaning of sect. 15 of the Workmen's Compensation Act, 1934, and the appeal must be dismissed.

Per Sullivan C.J.:—The only effect of sub-sect 2 of sect. 15 of the Workmen's Compensation Act, 1934, is that acts, which a workman had been forbidden to do by a prohibition limiting the sphere of his employment, but which would otherwise have been within the sphere of employment, are now deemed to be what, were it not for the prohibition they would in fact be, acts within the sphere of his employment. Acts that were outside the sphere of the employment, not because they were prohibited, but because they were acts entirely outside the work that the workman was employed to do, are unaffected by the sub-section, and accidents resulting from such acts cannot be deemed to arise out of and in the course of the employment.

Dictum of Lord Dunedin in Wilsons and Clyde Coal Co., Ltd. v. McFerrin,[1926] A. C. 377. at p. 386 (approved in Thomas v. Ocean Coal Co., Ltd,,[1933] A. C. 100), applied.

Appeal from the Circuit Court.

The applicant, Bartholomew M'Donnell, applied to the Circuit Court Judge (Judge Davitt) for an arbitration under the Workmen's Compensation Act, 1934, in respect of the injury caused by the death of his son, Gerard M'Donnell, who, while proceeding on the respondent's business in a motor cycle combination driven by Arthur Newham, another employee of the respondent, was killed, (as also was the said Arthur Newham), as the result of a collision with a standard.

A similar application was brought by Maurice Newham as a dependent of the said Arthur Newham, both applications being heard together. On behalf of the applicants it was contended that the accident arose out of and in the course of the deceased's employment within the meaning of sect. 15 of the Workmen's Compensation Act, 1934. Judge Davitt held that the accident, though arising in the course of their employment, did not arise out of such employment, on the ground that, in the particular circumstances of the case, the deceased were not entitled to incur the risk involved in travelling in the vehicle used by them; accordingly the applications were dismissed.

From this decision the applicant, Bartholomew M'Donnell, appealed to the Supreme Court, but no appeal was taken on behalf of Maurice Newham. The further facts have been summarised in the headnote and are fully stated in the judgment of Sullivan C.J.

Cur. adv. vult.

Sullivan C.J. :—

This is an appeal by the appellant from the decision of Circuit Judge Davitt dismissing an application for compensation under the Workmen's Compensation Act, 1934.

The applicant claimed to be a dependant of his son, Gerard McDonnell, who met with an accident on the 4th February, 1937, which resulted in his death. The deceased was at the time in the employment of the respondent, Arthur Sevitt, and the applicant alleged that the accident arose out of and in the course of the deceased's employment. The Circuit Judge held that the accident arose in the course of the employment but...