Toner v Dublin Trawling Ice and Cold Storage Company Ltd

• Jurisdiction: Ireland
• Judgment Date: 21 December 1945
• Date: 21 December 1945
• Court: Supreme Court

Supreme Court.

Toner v. Dublin Trawling Ice and Cold Storage Co.

In re THE Workmen's Compensation Act

1934

EDWARD TONER

Applicant

THE DUBLIN TRAWLING ICE AND COLD STORAGE COMPANY LTD., Respondents (1)

Workmen's Compensation - Whether accident arising in the course of employment - Seaman going ashore on leave for his own purposes - Fall from jetty - Permitted means of access - Voluntary payments by employer - Receipts given "for compensation" - Whether such payments created an estopped - No judgment or agreement as to payments - Employers not estopped from denying liability - Whether employers could be made liable without an order of the Court or a registered agreement - Workmen's Compensation Act, 1934 (No. 9of 1934), sects. 36, 46, 47, 50.

Appeal by Edward Toner from an order dismissing his application for compensation under the Workmen's Compensation Act, 1934, made by Judge Davitt in the Dublin Circuit Court on the 20th of March, 1944. The facts are set out in the judgment of Judge Davitt (now Mr. Justice Davitt) in the Circuit Court which was as follows:—

On the 26th January, 1940, the applicant was employed as a member of the crew of one of the respondents' trawlers,"The Kosmos." He was employed as a fireman. "The Kosmos" was then in the harbour at Ayr in Scotland. She

had originally berthed in the river beside the quay at a place where there was a clear and direct approach by public highway to the ship's side. Subsequently, unnoticed, or perhaps forgotten, by the applicant, she changed her position and moved downstream to a berth beside a jetty. This jetty was narrow, only a few yards wide, and on the side opposite to that at which the ship lay was a slipway. After nightfall the applicant decided to go ashore, entirely for his own purposes. He did not ask for leave. He said it was quite unnecessary for him to do so, and this I accept. The means of access from ship to shore was a moveable ladder resting on the ship's deck and leaning against the side of the jetty. At the time the applicant went ashore it was pitch dark, there being no light of any kind owing to the "blackout."As he reached the top of the jetty he realised that a man named Kiernan was about to use the ladder, and considering that it was not quite secure, the applicant held it steady for him. He then decided to move on about his own business, and not appreciating his exact position, or being unmindful of the fact that the ship had changed her berth and that he was on the jetty, and not upon the quay proper, he advanced a few paces, and in the darkness stepped off the jetty and fell down on to the slipway. He was seriously injured and has since that date been totally incapacitated.

His pre-accident average weekly earnings were made up as follows:—Wages, £2 4s. 6d.; War risk addition, £1; bonus, 13s.; meals, 15s.; total, £4 12s. 6d.

He has been paid compensation to date at the rate of £1 8s. 9d. weekly. Up to the 19th October he gave receipts in the form:—"Received the sum of £1 8s. 9d. being compensation week ending, etc., etc." On 19th: October he signed a receipt in the form:—"Received from the Dublin Trawling Ice and Cold Storage Co., Ltd., the sum of £1 8s. 9d., such payment and all future payments being made to me and accepted by me without prejudice pending investigation of my claim." Thereafter some receipts were given in the usual form, but the majority were expressed to be "as per arrangement."

On the 21st April, 1942, the applicant's solicitor wrote to the respondents, pointing out that his client was receiving only £1 8s. 9d., whereas he claimed to be entitled to 30s. weekly, and on the 16th December, 1943, an originating summons was issued on behalf of the applicant claiming £1 16s. 3d. as weekly payment of compensation under the Workmen's Compensation Act, 1934. The respondents in their defence deny liability on the grounds:—

1. That the injury to the applicant was not caused by accident arising out of and in the course of the applicant's employment.

2. That the injury was due to his serious and wilful misconduct and did not result in his serious and permanent disablement.

3. That the proceedings were not brought within the time limited by the Act.

4. That the applicant is not now totally incapacitated as a result of the accident.

5. That any payments made by the respondents to the applicant since the accident were made without any admission of liability on their part, or, alternatively, were made under a misapprehension and in reliance on the accuracy of the statements of the applicant.

The only grounds of defence relied upon by the respondents at the hearing were the first and last.

I find as facts: that the applicant was employed at the material date as a workman by the respondents; that his pre-accident average weekly earnings were £4 12s. 6d.; that on the 26th January he sustained an injury by accident as a result of which he has since been, and is now, totally incapacitated. The questions I reserved for consideration are:—

1. Did the accident arise out of and in the course of the employment?

2. If not, are the respondents in any way precluded from relying on this ground of defence?

The applicant's employment with the respondents was continuous on board ship, but was of course capable of being interrupted, as for instance, by his going ashore for his own purposes. His purpose in going ashore on this occasion was to pay a visit to a friend of his on another ship. If his friend, instead of being on another ship, had been resident in the town of Ayr, and the applicant in going to see him had left the neighbourhood of the harbour and had been knocked down by a vehicle in the street, it could hardly be maintained that the accident arose out of and in the course of his employment. Similarly if he had succeeded in getting some considerable distance from his own ship along the quay towards that of his friend, and then had fallen into the river in the darkness, he would be faced with the same legal difficulty. The reasons why this is so, are, I think, adequately set out in the judgment in the case of Davidson v. McRobb(1).At p. 692 of the report in Butterworth's Cases, Lord Dunedin says:—"There is no case where liability has been found in

which the accident has occurred in any place other than what may be termed the provided access to the ship. If an accident occurs there it may well be, and I agree that it is involved in the decisions, that when a sailor is leaving his ship by the provided access, or has reached the provided access on his return, he has not left the course of his employment in the first case—in the second he has returned to it." Again, at p. 693 he says:—"As the course of his employment was interrupted when he left the ship for his own purposes, so it would be resumed when he returned to the ship. If, therefore, the place at which the accident happened was in any fair sense the access to the ship, then the accident would be in the course of his employment."

The trouble in this case arises from the fact that the applicant met with his accident within a few yards of the ship and within a matter of a few seconds from the time he left the provided means of access from ship to shore. In these cases there must always be a point of time and space at which the employment is interrupted and resumed. In the present case I take the view that that point was reached when the applicant had safely negotiated the ladder and stood in safety upon the top of the jetty. He was then, as far as I can see, in exactly the same position both physically and legally as would be any ordinary member of the public who had occasion to resort to the jetty for his own purposes. At the moment before he stepped off the jetty he was not where he was by reason of any duty which he owed to his employer arising out of his contract of service. A very fair analogy would appear to be the case of a workman who, on ceasing work for the day, leaves his workshop and immediately crossing the footway and intending to cross the road steps negligently in front of a passing vehicle.

For these reasons I am of the opinion that the accident to the applicant did not arise out of or in the course of his employment with the respondents. The other question remains: are the respondents in any way precluded from relying upon this successful defence?

Apart from the one ground of defence that the applicant did not bring his proceedings within the time limited by s. 31, sub-s. 1, I cannot see that the respondents are prevented by any rule of ordinary estoppel from relying on any ground of defence pleaded. Quite apart from the provisions of the second sub-section, I think it may well be that the respondents are estopped from relying on the defence of the time limit:Wright v. Bagnall(1). In fact, though this defence is

pleaded, no attempt whatever was made to rely upon it, and I surmise that like all the other grounds pleaded except the first and last it was inserted merely ex abundante cautela.

As regards the defences relied on I can find no evidence that the applicant ever acted to his detriment upon any representation made by the respondents. The payment of a weekly sum, expressed in the receipts given up to the 19th October, 1940, to be given by way of compensation, may well be considered as amounting to evidence of the respondents' liability under the Workmen's Compensation Act, 1934, by way of admission. It is, in my opinion, no more than evidence of liability, and it is not conclusive evidence. The case of Fraser v. Driscoll(1) is, I think, of doubtful authority. It has never, as far as I can find, been really followed, and it has been adversely commented upon. I am not bound by it and I do not propose to follow it. SeeDutton v. Sneyd Bycars Co. Ltd.(2).

There remains one further point to be considered. If the payment and acceptance of compensation in this case can be regarded as an agreement under the Act, would that prevent the...