Marshall v. Owners of S.S. "Wild Rose." [1910] UKHL 701

UKHL
Marshall v. Owners of S.S. "Wild Rose."
[1910] UKHL 701
(Before the Lord Chancellor (Loreburn) , Lords James of Hereford , Atkinson . Shaw , and Mersey .)48 SLR 701

Marshall v. Owners of S.S. “Wild Rose.”

Subject_ Master and Servant — Workmen's Compensation Act 1906 (6 Edw. VII, c. 58), sec. 1 — “Arising out of and in the Course of the Employment” — Seaman — Unexplained Drowning. Facts:While a ship was in harbour a seaman employed on board left his berth and went on deck during a hot night, saying that he was going up for fresh air. Next day his drowned body was found in the water just underneath a part of the ship's rail where the crew habitually sat. There was no further evidence to explain the drowning.Held ( diss . the Lord Chancellor and Lord James of Hereford) that, assuming the death had occurred by accident, there was not evidence to support the inference that the accident arose out of the employment.A seaman was drowned under circumstances stated in their Lordships' judgments. His widow claimed compensation from his employers and was awarded £300 by the County Court Judge, who found upon the facts that the seaman had died from an accident “arising out of and in the course of his employment.” This award was set aside by the Court of Appeal ( Cozens-Hardy , M.R., Fletcher Moulton and Farwell , L.JJ.).The widow appealed.

Their Lordships gave considered judgment as follows:—

Lord Chancellor (Loreburn) —This has been to me an anxious case, because of the view adopted by the Court of Appeal, from which I am always slow to differ, though I think that Fletcher Moulton, L.J., had some doubts. It involves two quite distinct questions. The first is, Does the evidence warrant the conclusion of fact reached by the County Court Judge — that this unfortunate man fell into the water by accident? The second is, whether, if that be so, the accident was one “arising out of the employment of the deceased.” I wish to avoid confusion between those two separate points. In regard to the first of these questions, I observe that in none of the opinions delivered in the Court of Appeal is the conclusion of the learned County Court Judge controverted, though it was assailed in argument at the Bar of this House. We know, on the evidence, that on the evening of the 27th May the “Wild Rose” was in Aberdeen Harbour. At 10·10 p.m. Marshall came on board, went below, and took of all his clothes except his trousers, shirt, and socks. It was a very hot night. He subsequently came out of his berth, saying that he thought that he would go on deck for fresh air. The crew always sat on the starboard quarter against the fishboard. Marshall went on deck with his trousers, shirt, and socks on. At midnight he was not on deck. His body was searched for next morning and found just underneath where the crew usually sat. Beyond this we know nothing. Now in the affairs of life, where much is often obscure, men have to draw inferences of fact from slender premises. A plaintiff or claimant must prove his case. The burden is upon him. But this does not mean that he must demonstrate his case. It only means that if there is no evidence in his favour upon which a reasonable man can act, he will fail. If the evidence, though slender, is yet sufficient to make a reasonable man conclude that in fact this man fell into the water by accident, and so was drowned, then the case is proved. I cannot possibly say that the County Court Judge was wrong, because I also conclude from the slight material before us that this man fell into the water by accident (suicide was not ever suggested) and so was drowned, and I do not believe that any jury would hesitate in saying so. Whether he was sitting on the rail or not I cannot conclude, and it is wholly immaterial. But that he fell off the ship by accident I do not really doubt. The second question is more difficult. Did this accident arise out of Marshall's employment? Let me see what his employment was. The respondents' case tells us that he was second engineer on the “Wild Rose,” a steam trawler. In that capacity he had to serve continuously. Sometimes he would be actually minding

Page: 702 ↓

Lord James of Hereford —I am of the same opinion. I think that it may be taken that there was a recognised habit, prompted by convenience, for the men when resting to sit on the rail, and that no objection was taken to their so doing by anyone in authority. If this be so, the argument that Marshall might be regarded as if he had been sitting on the end of the bowsprit cannot be maintained. It was not usual, or reasonable, or authorised that a man should sit on the end of the bowsprit. It is an admitted fact that the deceased man was in the employment of the defendants, and that in pursuance of that employment he was on board the ship on the night of his death. Being there he was not departing from that employment if he sought the better air of the deck rather than remain in the closer atmosphere of the cabin. Having reached the deck it was reasonable that he should sit down and not remain standing. It was also reasonable to expect that he would sit upon the rail rather than upon the bare deck. In order to carry out his employment he was resting, and when he was resting the accident happened. But it remains to be determined, Did the death of the deceased arise out of his employment? I think that it did. Now what do the words “arising out of the employment” mean? They are vague words, very different in their effect from such words as “caused by the employment.” This seems to point to an indirect connection with the employment, and I think that they are fulfilled if the accident occurred during the employment and under circumstances which show that the injured person had not at the time of the injury departed from the controlling incidents of the employment. It may be that independent circumstances may show that an accident occurring during the employment did not arise out of it, but if the conditions which I have mentioned are fulfilled, the burthen of establishing such circumstances must be borne by the employer. The words of the statute, “arising out of the employment,” are, as I have said, somewhat vague, but I read them as I think they ought to be read, liberally, and doing so it seems to me that the facts of this case establish a right to compensation, and that therefore the appeal should be allowed.Lord Atkinson —In this case the Court of Appeal have held that the applicant has not discharged the burden of proof which lay upon her by showing that her husband met his death by an accident arising out of and in the course of his employment. In my opinion they were right. The finding of the learned County Court Judge, to paraphrase the language of Lord Watson in Wakelin v. London and South-Western Railway Company ( 12 A.C. 41), was not, I think, an inference which could be reasonably drawn as a matter of fact, because there were no data from which such an inference could be drawn, so much as a conjecture or surmise, which there were no doubt ample materials to justify. There is nothing to show that Marshall did not deliberately jump or throw himself into the water, beyond the greater probability of accident as compared with suicide. No evidence whatever was adduced to show what the structure of the trawler was — whether her bulwarks were so low that he might readily have fallen over them, or so high that he could not have fallen over them. Nothing is stated as to the condition of the vessel's deck, or as to the manner in which she was moored, or whether she was in such a position that the body of the

Page: 703 ↓

Lord Shaw — In this case the known facts are few and simple. A sailor, partially dressed, left his sleeping berth in a ship lying in a tidal basin, and proceeded to the deck, having remarked to his companion that he was going up to cool himself. This happened at 10·10 on the night of the 27th May 1908. Next day his dead body was found in the harbour, just under the fishboard, which was at a part of the gunwale where the members of the crew

Page: 704 ↓

Lord Mersey —For the purpose of dealing with this appeal I accept the statement of facts in the appellant's case. It is not necessary to recapitulate them. The only question to be determined is whether these facts afford any evidence upon which the County Court Judge could reasonably find that the death of Marshall was caused by accident arising out of his employment. The Court of Appeal were of opinion that they afforded no such evidence, and I think that their decision was right. It is said that the accident was due to the man's sitting on the rail of the ship and falling from it. 1 think that this is probably true, although I fail to find any legal evidence in support of the statement. But I do not see how it can reasonably be said that to sit on the rail of the ship was in any sense connected with the man's employment.

Page: 705 ↓

Appeal dismissed.Counsel for Appellant— Scott Fox, K.C.— Lowenthal. Agents — Maples, Teesdale, & Co., Solicitors.Counsel for Respondents — Sir R. B. Finlay, K.C. — Atkin, K.C. — Mundahl. Agents— Williamson, Hill, & Co., Solicitors.