Regional Director, E.S.I Corpn. & Anr Vs. Francis De Costa & Anr [1992] INSC 144 (5 May 1992)
Ramaswamy, K. Ramaswamy, K. Jeevan Reddy, B.P. (J)
CITATION: 1992 SCR (3) 23 1993 SCC Supl. (4) 100 JT 1992 (3) 332 1992 SCALE (1)1083
ACT:
Employees' State Insurance Act, 1949: Sections 2(8), 51A, 51C, 51D, 75 and 76.
'Employment Injury'-Test to determine-What is Expressions-'In the course of employment' and 'Arising out of employment'-Scope of-Injury caused to employee by Employer's lorry on public road while employee was on way to join duty-Whether arises out of and in the course of employment.
'Employment Injury'-Relief-Availability of remedy under General Law of tort or under Special Law in other Acts- Whether bars relief under E.S.I. Act.
Doctrine of Coming in and Going from Work Place- Exceptions.
Maxim-'Eundo Morando. et Redeundo'-Meaning of.
Words and Phases:
'Accident'-Meaning of.
Interpretation of Statutes-Social Legislation- Interpretation of.
Constitution of India, 1950: Articles 38,39,41 and 43.
Social Justice-Workers-Right to health and medical treatment.
HEAD NOTE:
The first-respondent was employed with J.P. Coats (P) Ltd., Koratty. On June 26, 1971 while he was going on his bicycle to join duty, on the road leading to the factory at a distance of 1 K.M. the Company's lorry hit him on left side of his body and knocked him down on the road. As a result of the accident, he suffered severe injuries and ultimately the Insurance Medical Officer certified that he was totally and permanently incapacitated to work in the factory. He laid a claim for the benefits before the Regional Director, Employees' State Insurance Corporation which was 24 rejected. Thereupon he filed a claim before the Employees' Insurance Court under Section 75 of the Employees' State Insurance Act, 1948 contending that since the injury was suffered by him while on the way to his duty, it is an `employment injury'. The respondent Corporation contended that it is not so, inasmuch as the accident took place on a public road. The Employees' State Insurance Court held in favour of the first respondent by holding that the respondent was going on the usual route along which he passes and repasses every day to and from the factory on the cycle purchased by him from the advance given by the employer and was not negligent in riding the cycle.
Therefore, the injuries were caused to him in an accident while in the course of his employment and consequently he was entitled to the benefits under the Act. On appeal the High Court confirmed the findings of the Employees' State Insurance Court. Against the decision of the High Court, an appeal was preferred in this Court.
Referring the matter to a larger Bench, this Court,
HELD : Per K. RAMASWAMY, J. 1. The respondent was trekking the road to attend to duty which found to be the accustomed route to reach the factory and just few minutes before reporting to duty he was struck by the truck resulting in the employment injury. It, therefore, occurred during the course of his employment and thereby he is entitled to the amount as compensation under the Act. [56 GH, 57-A]
2. In determining whether a given accident occurred in the course of employee's employment, the factual picture as a whole must be looked at, and any approach based on fallacious concept that any one factor is conclusive must be rejected. The facts are of crucial importance, and the addition to or subtraction of one factor in a given situation may tilt the balance, whereas in another situation the addition or subtraction of the same factor may make no difference. This, however, does not indicate that there are no principles in the light of which a court can decide whether an employee was acting in the course or arising out of his employment at the material time when the accident had occurred. [36D-E]
3. Literal construction of the phrase 'arising out of his employment' conveys the idea that there must be some sort of connection between the employment and the injury caused to a workman due to the accident. But it is wide enough to cover the case where there may not necessarily be a 25 direct connection of the workman. There may be circumstances tending to show that the workman received personal injury due to the accident that arose during the course of or out of his employment. It would not mean that personal injury only must have resulted from the mere nature of the employment, nor it be limited to cases where the personal injury is referable to duties to which the employee has to discharge. The phrase 'arising out of the employment' applies to employment as such, to its nature, its condition, its workman is brought within the zone of danger and resultant injury disease or death. In the context of the claims of the labour for social justice under welfare legislation, the principle is that the employer and the employees are so inter-related and depend on each other, than it is in the interest of each that the other should survive, and it is in the interest of society that both should be kept functioniong in harmony with each other.
The expression 'arising out of', therefore, requires the assistance of causal connection between the employment and the accident. The employment is the cause and the accident is the effect. The causal relationship between employment and the accident does not logically necessitate direct or physical connection. It may be of various steps, namely, direct, physical, approximate, indirect or incidental. [33 GH, 34-A-D]
4. As a general rule the employment does not begin until the employee has reached the place of work. The ambit, scope or scene of his duty does not continue after he has left the place and the period of going and returning are excluded. But duty is not confined to the actual performance of work, it also applies when it is reasonably connected or incidental to the work. When the workman proceeds on a public road to his workplace or factory which is the accustomed road or route, the proximity of the place of accident, time and the obligation to report to duty are relevant and material facts to be kept in mind. [38-F]
5. The doctrine of coming in and going from workplace is subject to reasonable extension. It is common knowledge that the home is the employee's base from which it is his duty to start for work. When an employee travels by direct route from his home to the place of work but for that he has no occasion to traverse the way though private/public road way is the normal or agreed or accustomed route to reach the workplace, he must be treated to be travelling in the course of his employment as incidental to join the duty or leaving the work place. [54 D-E] 26
6. The motive to use public or private transport or route to reach the place of accident is not relevant. The employee may use the place, public road or transport services as usual course of means of attending to or going from the place of work, office or factory. The test is whether the employee has exposed to a particular risk by reason of his employment or whether he took the same risk as is incurred by any other public using the public way otherwise then his employment. [54 F-G]
7. When a workman walks, rides the bicycle etc. along the public road/street to get to his work, his right to walk does not spring, undoubtedly, from employment, and he also may exercise it as a member of the public. Nevertheless the workman too uses the public/permitted private way as access/means to attend to duty. The question whether he had encountered the danger or the accident exercising his right and to be at the place of incident as a member of the public or as his integral course of employment must always be born in mind. While as a member of the public he may have a right to walk or ride a cycle, drive a car etc. but while walking or crossing the road/driving to reach the place of work or duty he encounters the danger or the accident, which he would not have encountered but for that employment, then it must be incidental to his employment. The motive which induces the employee to do a thing is not material. His motive to go by a particular route is also immaterial, whether it was to save time or to save himself from trouble.
Whether the place at which the injury/death occurred was on the only route or at least the normal/accustomed route which the employee must traverse to reach the place of work and became the hazard of the employment is also relevant fact.
The fact that the risk is common to all mankind does not prove that the accident had not arisen out of employment. [54H, 55A-E]
8. Sections 51A and 51C of the Act give statutory presumptions/grounds as to when an accident happen while traveling in an employer's transport, etc. The Act intends to reiterate the law declared by this Court, apart from creating some statutory presumptions. But it is no corollary to conclude that an accident arising out of and in the course of employment, in any other way, by necessary implication, should stand excluded. To the extent covered under Section 51A to 51D by statutory amendment stands incorporated in the Act but in other respects the court has to consider whether the accident had arisen out of and in the course of employment, dehors the statutory presumptions etc. provided in Sections 27 51A to 51D. [55 F-H, 56 A-B] Gian Devi Anand v. Jeevan Kumar & Ors., [1985] Suppl. 1 S.C.R. 1, referred to.
9. The contention that the Motor Vehicles Act provides the remedy for damages for an accident resulting in death of an injured person and that, therefore, the remedy under the Act cannot be availed of lacks force or substance. The general law of tort or special law in Motor Vehicles Act or Workman Compensation Act may provide a remedy for damages.
The coverage of insurance under the Act in an insured employment is in addition to but not in substitution of the above remedies and cannot on that account be denied to the employee. [56 C-E] K. Bharati Devi v. G.I.C.I., A.I.R 1988 A.P. 361, referred to.
10. The Employees' State Insurance Act fastens in an insured employment statutory obligation on the employer and the employee to contribute in the prescribed proportion and the manner towards the welfare fund constituted under the Act - Section 38 to 51 of the Act - to provide sustenance to the workmen in their hours of need, particularly when they become economically inactive because of a cause attributable to their employment or disability or death occurred while in employment. The fact that the employee contributed to the fund out of his hardearned wages cannot but have a vital bearing in adjudicating whether the injury or occupational disease suffered by an employee is an employment injury.
The liability is based neither on any contract nor upon any act or omission by the employer but upon the existence of the relationship which employer bears to the employment during the course of which the employee had been injured. [33 D-F]
11. It falls foul from the mouth of the appellant, a trustee de son tort who collected the premium from the employee and employer with a promise to expand it for disability, to attempt to wriggle out from the promise or to deprive the employee the medical benefit for employment injury covered by the insurance on the technicalities. It is estopped to deny medical benefit to the insured employee.
Though the plea of estoppel was not raised by the respondent yet it springs from the conduct of the appellant. [56-F] 28
12. The Employees' State Insurance Act is a social security legislation. To promote justice and to effectuate the object and purpose of the welfare legislation, broad interpretation should be given, even if it requires a departure from literal construction. The Court must seek light from loadstar Articles 38 and 39 and the economic and social justice envisaged in the Preamble of the Constitution which would enliven meaningful right to life of the worker under Article 21. [32-F]
13. Right to health, a fundamental human right stands enshrined in socio-economic justice of our Constitution and the Universal Declaration of Human Rights. Concomitantly right to medical benefit to a workman is his fundamental right. Right to medical benefit is, thus, a fundamental right to the workman. [32-H, 33-A]
14. De hors the human Right and Constitutional goal, the march of jurisprudence emphasises that the law did not remain static but kept pace with the changing social demands to secure socio-economic justice to workman. [54-B] Saurashtra Salt Manufacturing Co. v. Bai Valu Raja & Ors., A.I.R. 1958 S.C. 881; Mackinnon Mackenzie & Co. (P) Ltd. v. Ibrahim Mahommed Issak, [1970] 1 S.C.R. 869;
B.E.S.T. Undertaking, Bombay v. Agnes, [1964] 3 S.C.R. 930, referred to.
The Regional Director of the E.S.I.C. v. L. Ranga Rao & Anr., (1981) 2 Karnataka Law Journal 197; Sadugunojaban Amrutlal & Ors. v. E.S.I. Corporation, 22 (1981) Gujarat Law Reporter, 773; Bhagubai v. Central Railway, (1954) 2 L.L.J. 403; Regional Director, E.S.I. Corpn., Trichur v. K. Krishnan, 1975 K.L.T. 712; Commissioner for the Port of Calcutta v. Mst. Kaniz Fathema, A.I.R. 1961 Calcutta 310, referred to.
Upton v. Great Central Railway Co., 1924 A.C. 302; Fitzgerald v. W.J. Clarke & Son, 1908 (2) King's Bench 796; Mcdonald v. Steamship Co., 1902 (2) King's Bench 926; Titley
Querous (Owners), 1933 Appeal Cases, 494; Simpson v. L.M. & S. Railway Co., 1931 A.C. 351; Nelens Colliery Co. Ltd. v. Hewistson, 1924 Appeal Cases 59; Weaver v. Tredeger Iron & Coal Co. Ltd., 1940 Appeal Cases 955; McCullum v. Northmbrian Shipping Co. Ltd., 1932 (147) Law Times Report 361; Canadian Pacific Railway Co. V. Lockhart, 1942 Appeal Cases 591; Blee v. London & North Eastern Railway Co., 1937 (4) All 29 England Reports 270; Noble v. Southern Railway Co., 1940 A.C. 583; Scott v. Seymour, (1941) 2 ALL E.R. 717 (C.A.); Dover Navigation Co. Ltd. v. Graig, 1939 (4) All England Reports 558; Dennis v. White (A.J.) & Co., 1917 A.C. 479; In R. v. Industrial Injuries Commissioner, 1966 (1) All England Reports 97; Moncollas v. Insurance Officer and Ball v. Insurance Officer. (1985) 1 All England Reports 833; Smith v. Stages & Anr., (1989) 1 All England Reports 833; united States Fidelity & Guaranty Co. v. Elizabeth W. Giles, 276 U.S. 154; Cudahy Packing Co of Nebraska v. Mary Ann Parramore, 263 U.S. 154; Cudahy Packing Co. of Nebraska V. Mary Ann Parramore, 263 U.S. 418; Freire v. Matson Navigation Co., 19 Cal 2d 8, 188 p.2d 809 (1941), referred to.
Halsbury's Laws of England, Fourth Edition, Vol. 33, para 490 at p.369, referred to.
Larson's Workmen's Compensation Law, Vol.1 s.15, referred to.
Per B.P. Jeevan Reddy, J.
1. The respondent-employee cannot claim any disablement benefit under the Employees' State Insurance Act for the injuries suffered by him.
[69-D]
2. A reading of the definition of 'employment injury' under Section 2(8) of the Employees' State Insurance Act shows that for constituting an employment injury it must not only be caused by an accident arising out of his employment but must be one arising in the course of his employment.
The words 'arising out of and in the course of employment' are not defined in the Act or the Rules and Regulations thereunder. While both the expressions 'arising out of' and 'in the course of employment' are not defined in the Act or the Rules and Regulation thereunder. While both the expressions 'arising out of' and 'in the course of' do not mean the same thing, both of them do denote and contemplate a causal connection between the accident (which leads to injury) and the employment. The accident, in order words, must not be unconnected with the employment. [58-C, 60 C-D]
3. Any injury suffered by an insured employee as a result of an accident occurring on a public road or a public place, even while going to or returning from the place of employment cannot be treated as an employment injury. Once it is found that the accident took place on a public road, it becomes immaterial whether that place is one mile or one furlong away from the workplace. Of course, if the employee suffers an injury while travelling, whether voluntarily or as a condition of service, by a transport provided or arranged by the employer it will be an employment 30 injury. Similarly, if the accident takes place on the premises of the employer, it will be treated as one arising out of and in the course of employment. It is, however, necessary to clarify that if an employee suffers an injury while travelling by a public transport or while proceeding along a public road in the course of performance of his duties e.g., medical representatives, linesmen employed by Electricity and Telephone undertakings, repair and maintenance personnel employed to go to the residential and other places, (where the units/gadgets are installed), to attend them and so on. (68 H, 69 A-C]
4. In respect of injuries suffered in accidents not arising out of and in the course of employment, i.e., in the case of injuries other than employment injuries, remedies and forums are different e.g., Motor Vehicles Act, (Sections 110-A) Railways Act (Sections 82-A and 82-J) and so on. If an employee covered by the Act suffers an injury on account of an accident not arising out of and not in the course of his employment, he is not without a remedy in law. Forum may be different; procedure may be different; but he certainly has a remedy; just as an other citizen of this country; neither less nor more. [60 F-G] Saurashtra Salt Manufacturing Company v. Bai Valu Raju and Ors., A.I.R. 1958 S.C. 881; General Manager, B.E.S.T. Undertaking, Bombay v. Mrs. Agnes, [1964] 3 S.C.R. 930;
Mackinnon Machenzie & Co. Pvt Ltd. v. Ibrahim Mahommed Issak, [1970] 1 S.C.R. 869, referred to.
Bhagubai v. Central Railway, Bombay, 1954 (2) Labour Law Journal 403; Regional Director ESIC v. L. Ranga Rao & Anr., 1981 (2) Karnataka Law Journal 197; Sadgunaben Amrutlal & Ors. v. The Employees' State Insurance Corporation, (1981) 22 Gujarat Law Report 773; Regional Director E.S.I. Corporation, Trichur v. K. Krishnan 1975 Kerala Law Times 712; Commissioners for the Port of Calcutta v. Mst. Kaniz Fatema, A.I.R. 1961 Vol. 48 Calcutta 310, referred to.
Cremins v. Guest, Keen & Nettlefolds, Ltd., 1908 (1) K.B. 469; Gane v. Norton Hll Colliery Co., (1909) 2 K.B. 539; John Stewart and Son (1912) v. Longhurst, (1917) Appeal Cases 249; Howells v. Great Western Railway, (1928) 97 L.J. K.B. 183; Weaver v. Tredegar Iron & Coal Co. Ltd., (1940) 3 All England Reports 157;Hill v. Butterley Co Ltd., (1948) 1 All England Law Reports 233; Alderman v. Great Western Railway Company, (1937) Appeal Cases 454; Netherton v. Coles, (1945) 1 All England Law Reports 31 227; Jenkins v. Elder Demspter Lines Ltd., (1953) 2 All England Law reports 1133; Blee v. London and North Eastern Railway Co., (1938) Appeal Cases 126, referred to & CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1174 of 1979.
From the Judgment and Order dated 25.11.1977 of the Kerala High Court in A.S. No.638 of 1974.
K.T.S Tulsi, Addl. Solicitor General, Ms. Anil Katyar, T.C. Sharma and C.V.S. Rao for the Appellants.
N.Sudhakaran for the Respondents.
The Judgments of the Court were delivered by K. RAMASWAMY, J. This appeal, by special leave, arises against the judgment of the Kerala High Court in A.S. No. 638 of 1974 dated November 25, 1977. The respondent was an employee in M/s. J & P Coats (P) Ltd. at Koratty. He had to attend the duty in the second shift at 4.30 p.m. On June 26, 1971 while he was going on his bicycle to join duty, on the road leading to the factory at a distance of 1 k.m. the company's lorry hit him at 4.15 p.m. on left side of his body and knocked him down on the road. As a result his left collar bone and left shoulder were fractured and ultimately the Insurance Medical Officer certified that the respondent was totally and permanently incapacitated to work in the factory. He, therefore, laid the claim before the E.S.I.
Court under S.75 of the Employee's State Insurance Act, Act No. 34 of 1948 for short 'the Act' which found that the respondent was going on the usual route along which he passes and repasses every day to and from the factory. The cycle was purchased by him from the advance given by the employer. He was not negligent in riding the cycle. The injuries were caused to him in an accident while in the course of his employment and that, therefore, he is entitled to the benefits under the Act. On Appeal the High Court confirmed these findings.
Section 2(8) of the Act defines employment injury thus:- "employment injury" means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable 32 employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India." A reading thereof would show that a personal injury caused to an employee by an accident or occupational disease arising out of and in the course of his insurable employment whether the accident occurred within or outside the territorial limits of India is an employment injury. The crucial but ticklish question of considerable importance is whether the injury caused by an accident on a public road, while on his way to join the duty just 15 minutes before reporting to duty at a distance of 1 k.m. from the factory premises, arises out of and in the course of his employment? Accident has not been defined under the Act. The popular and ordinary sense of the word 'accident' means the mishap or an untoward happening not expected and designed to have an occurrence is an accident. It must be regarded as an accident, from the point of view of the workman who suffers from it, that its occurrence is unexpected and without design on his part, although either intentionally caused by the author of the act or otherwise.
It may also arise in diverse forms and not capable of precise definition. The common factor is some that concrete happening at a definite point of time and an injury or incapacity result from such happening.
The Act seeks to cover sickness, maternity, employment injury, occupational disease, etc. The Act is a social security legislation. It is settled law that to prevent injustice or to promote justice and to effectuate the object and purpose of the welfare legislation, broad interpretation should be given, even if it requires a departure from literal construction. The Court must seek light from loadstar Arts. 38 and 39 and the economic and social justice envisaged in the Preamble of the Constitution which would enliven meaningful right to life of the worker under Art. 21. Article 39(e) enjoins the State to protect the health of the workers under Art.41 to secure sickness and disablement benefits and Art.43 accords decent standard of life. Right to medical and disability benefits are fundamental human rights under Art. 25(2) of Universal Declaration of Human Rights and Art.7(b) of International Convention of Economic, Social and Cultural Rights. Right to health, a fundamental human right stands enshrined in socio-economic justice of our constitution and the Universal Declaration 33 of Human Rights. Concomitantly right to medical benefit to a workman is his/her fundamental right. The Act seeks to succour the maintenance of health of an ensured workman.
The interpretative endeavour should be to effectuate the above. Right to medical benefit is,thus, a fundamental right to the workman.
Moreover, even in the realm of interpretation of statutes Rule of Law is a dynamic concept of expansion and fulfillment for which the interpretation would be so given as to subserve the social and economic justice envisioned in the Constitution. Legislation is a conscious attempt, as a social direction, in the process of change. The fusion between the law and social change would be effected only when law is introspected in the context of ordinary social life. Life of the law has not been logic but has been of experience. It is a means to serve social purpose and felt necessities of the people. In times of stress, disability, injury, etc. the workman needs statutory protection and assistance. The Act fastens in an ensured employment statutory obligation on the employer and the employee to contribute in the prescribed proportion and the manner towards the welfare fund constituted under the Act (Ss.38 to 51 of the Act) to provide sustenance to the workmen in their hours of need, particularly when they become economically inactive because of a cause attributable to their employment or disability or death occurred while in employment. The fact that the employee contributed to the fund out of his/her hardearned wages cannot but have a vital bearing in adjudicating whether the injury or occupational disease suffered/contracted by and employee is an employment injury. The liability is based neither on any contract nor upon any act or omission by the employer but upon the existence of the relationship which employer bears to the employment during the course of which the employee had been injured. The Act supplant the action at law, based upon not on the fault but as an aspect of social welfare, to rehabilitate a physically and economically handicapped workman who is adversely effected by sickness, injury or livelihood of dependents by death of a workman.
Literal construction of the phrase "arising out of his employment" conveys the idea that there must be some sort of connection between the employment and the injury caused to a workman due to the accident. But it is vide enough to cover the case where there may not necessarily be a direct connection of the workman. There may be circumstances tending to show that the workman received personal injury due to the accident that 34 arose during the course of or out of his employment. It would not mean that personal injury only must have resulted from the mere nature of the employment, nor it be limited to cases where the personal injury is referable to duties to which the employee has to discharge. The phrase "arising out of the employment" applies to employment as such, to its nature, its condition, its workman is brought within the zone of danger and resultant injury, disease or death. In the context of the claims of the labour for social justice under welfare legislation, the principle is that the employer and the employees are so inter-related and depend on each other that it is in the interest of each that the other should survive, and it is in the interest of society that both should be kept functioning in harmony with each other. The expression "arising out of", therefore, requires the assistance of casual connection between the employment and the accident. The employment is the cause and the accident is the effect. The casual relationship between employment and the accident does not logically necessitate direct or physical connection. It may be of various steps, namely, direct, physical, approximate, indirect or incidental.
In Upton v. Great Central Railway Co., 1924 A.C. 302 it was held that the right to compensation given under the Workman Compensation Act is no remedy for negligence on the part of the employer but is rather in the nature of an insurance of the workman against certain sort of accident.
The peril of injury which the workman faces must not be something personal to him; "it must be incidental to his employment". In Saurashtra Salt Manufacturing Co. v. Bai Valu Raja & Ors., AIR 1958 SC 881, relied on by Sri Tulsi, learned Additional Solicitor General, construing the words "in the course of employment" under Section 3(1) of the Workman Compensation Act, 1923, this Court held that as a rule the employment of the workman does not commence until he has reached the place of employment and does not continue when he has left the place of employment, the journey to and from the place of employment, the journey to and from the place of employment being excluded. However, that stict rule was held to be subject to the theory of notional extension.
In Fitzgerald v. W.J. Clarke & Son, 1908(2) King's Bench 796 Buckley, L.J. explaining the phrase ` out of and `in the course of employment' observed thus:
"The words `out of point, I think, to the origin or cause of the accident; the words `in the course of' to the time, place and 35 "circumstances under which the accident takes place. The former words are descriptive of the character or quality of the accident. The later words relate to the circumstances under which and accident of the character or quality takes place.
In Mcdonald v. Steamship Co., 1902(2) King's Bench 926 laying emphasis on the role of place in determination of the course of employment of a workman, it was pointed out thus:- "If path of his duty both to go and to proceed from the working where he is engaged and so long as he is in a place which his person other than those was engaged would have no right to be, and indeed, he himself would have no right to but for the work of his employment, he was, I think normally still be in the cause of employment.
Lord Halsbury in Titley & Co. v. Cattrall, 1926(1) King's Bench 488 at 490 observed that actual ownership or control by the employer of the spot where an accident occurred is not essential. The workman goes there on his way to and from his working and he may be regarded as in the course of his employment while crossing the dock or other open space to and from the spot where his work actually lies. Such passage is within the contemplation of both the parties to the contract as necessarily incidental to it.
In Bai Valu Raja's case, AIR 1958 SC 881 it was held that "the strict rule is subject to the notional extension of the employer's premises so as to include and area which the workman and prepasses in going to and in leaving the actual place of work. There may be some reasonable extension in both time and place and a workman may be regarded as in the course of his employment, even though he had not reached or had left his employer's premises".
Therefore, facts and circumstances of each case will have to be examined very carefully in order to determine whether the accident arose out of and in the course of the employment of a workman, keeping in view at all times not only the theory of notional extension as a link but also social justice envisaged under the Constitution and the Act, to alleviate the hardship suffered by the employee.
The Court in Mackinnon Mackenzie & Co.(P) Ltd. v. Ibrahim 36 Mahommed Issak,[1970] 1 SCR 869 at 878 noticed the development of the law from the decisions of the House of Lords that the place of accident need not necessarily be in the factory premises but outside thereto as well. In Rosen v. S.S. Querous (Owners), 1933 Appeal Cases, 494 Lord Buckmaster explained the phrase of Lord Thankerton in Simpson v. L.M. & S. Railway Co., 1931 A.C. 351 that the place referred to therein was not the exact spot at which the accident may have occurred, but meant in that case the train on which the workman was travelling and in the later case the ship on which the workman was employed. Thus,it could be seen that the accident may occur while the workman was on his way to attend the duty or during his return from duty. The place need not necessarily be in the premises of the factory etc.
In determining whether a given accident occurred in the course of employee's employment, the factual picture as a whole must be looked at, and any approach based on fallacious concept that any one factor is conclusive must be rejected. The facts are of crucial importance, and the addition to or subtraction of one factor in a given situation may tilt the balance, whereas in another situation the addition or subtraction of the same factor may make no difference. This, however, does not indicate that there are no principles in the light of which a court can decide whether an employee was acting in the course or arising out of his employment at the material time when the accident had occurred.
The course of employment has been used in tort law as a test to determine the vicarious liability of the employer to the world at large. The Latin phrase " eundo morando, et redeundo" to mean that while at his place of employment and while entering and leaving it the doctrine of employer's liability was extended to matters arising while the workman was coming to the place of work, or leaving it, workman is on the employer's premises. But duty is not confined to the actual performance of work, but also applies when it is reasonably connected or incidental to the work.
The question in this case is whether the casual connection between the accident and the employment would be extended beyond the factory premises to a distance of one Km., while the injured workman was on his way on a public road to attend to the duties. Before adverting to the concepts of duty, time and place of accident, in the context of an accident to an employee, it may be necessary to notice the development of law in 37 various countries in relation to compensation to the workman under the respective workman compensation statutes.
New Zealand Workmen's compensation system, pursuant to the recommendation in 1966 by the Royal Commission appointed in that behalf, recommended that the Workman Compensation Act based on contract should be replaced by a unified system of accident rehabilitation and was accepted by the House of Representatives'; abolished the common law action for damages for personal injuries and adopted in all embracing " national accident insurance system". In Australia the Committee of inquiry, appointed in this behalf, in its report stated that:
(1) The systems have failed to grapple, in any way, with the rehabilitation of the injured worker.
(2) There is no uniformity between compensation systems throughout Australia.
(3) It provides no protection for the 15 per cent of the workforce who are self-employed.
(4) Though in name the system aims to protect injured workmen, it limits coverage to injuries sustained during working hours leaving the workers to fend themselves thereafter. It recommended full coverage. Accordingly, necessary amendments were brought about. The American National Commission on States Workman's Compensation Laws also had gone into the question to provide an adequate, prompt and equitable system of compensation. The Commission laid emphasis to settle the dispute out of court and other methods. Now the fact is that though general public are exposed to risks on streets and on public paths, some state Supreme Courts held that it does not change the character of the risk to workman. Accordingly, compensation was awarded.
Industralised nations like France, Federal Republic of Germany, Poland, Sweden, Britain and Yugoslavia adopted the most advantageous alternatives to workman's compensation system i.e. social security system. In United Kingdom, Workman's Compensation Act was replaced by Social Security Schemes.
In Halsbury's Laws of England, Fourth Edition, Volume 33, Para 490 at p.369 it is stated thus:- 38 "Accident travelling to and from work.
The course of employment normally begins when the employee reaches his place of work. To extend it to the journey to and from work it must be shown that, in travelling by the particular method and route and at the particular time, the employee was fulfilling an express or implied term of his contract of service. One way of doing this is to establish that the home is the employee's base from which it is his duty to work and that he was travelling by direct route from his home to a place where he was required to work, but that is only one way of showing this; the real question at issue is whether on the particular journey he was travelling in the performance of duty, or whether the journey was incidental to the performance of that duty and not merely preparatory to the performance of it.
If the place where the accident occurs is a private road or on the employer's property, the accident is in the course of the employment because he is then at the scene of the accident by reason only of his employment and he has reached the sphere of his employment. The test is whether the employee was exposed to the particular risk by reason of his employment or whether he took the same risks as those incurred by any member of the public using the highway.
Thus as a general rule the employment does not begin until he has reached the place of work. The ambit, scope or scene of his duty does not continue after he has left the place and the period of going and returning are excluded. When the workman was proceeding on a public road to his workplace or factory which is the accustomed road or route, the proximity of the place of accident, time and the obligation to report to duty are relevant and material facts to be kept in mind.
Lord Atkinson in Helens Colliery Co. Ltd. v. Hewitson, 1924 Appeal Cases 59 while reiterating this principle where there is an agreement between the colliery company and the railway company to provide special train for the conveyance of the colliery company's workmen to and from the colliery and the place of the residence of the workmen, observed thus:
"If each collier was bound by his contract to travel to his employer's colliery by this provided train, then `cadit questio' 39 The collier would be in the course of his employment when he was doing a thing he was bound by his contract of service to do. But the conferring upon a collier of a privilege which he is free to avail himself of or not, would, `prima facie' impose no duty whatever upon him to use it".
In special circumstances, however, such an obligation might be implied:- "It must, however, be borne in mind that if the physical features of the locality be such that the means of transit offered by the employer are the only means of transit available to transport his workman to his work, there may, in the workman's contract of service, be implied a term that there was an obligation on the employer to provide such, means and a reciprocal obligation on the workman to avail himself of them".
In Weaver v. Tredeger Iron & Coal Co. Ltd., 1940 Appeal Cases 955 (f) the facts were that a collier was injured when trying to board a train. The train was owned by a railway company, but the platform was situated by the side of a railway line which ran through the colliery premises, and was accessible from the colliery premises only. The employees of the Colliery used it under an arrangement between their employers and the company whereby specified trains were stopped at the platform to take the men to and from their homes at a reduced fare, which was deducted by the employers from the workmen's wages. The workmen were free to go home by means of the main road which ran past the colliery, but in practice nearly every employee used the railway. On those facts it was held by the House of Lords that as a rule, employment does not commence until the workman has reached his place of employment, and it does not continue after he has left that place, the periods of going to and returning from the place being generally excluded.
This however, is not and invariable rule, and the employment does not necessarily end when the `down tools' signal is given, or when the workman leaves the actual workshop where he is working. There may be some reasonable extension both in time and space, as for instance, where the workman travels to and from his work by some form of transport provided by his employers, and which he is under a contractual duty to use or where he is using the means of access to and egress from his place of employment. As the workman was making use of 40 facilities provided by his employers for leaving the place of employment, which he had not left at the time of the accident, and as the duty of leave the employment in a permitted manner had not been completed, the accident arose in the course of and out of the employment, and he was entitled to compensation.
Lord Wright held thus:- "He was on his way home on a public conveyance.
He had no greater right to claim that his employment was continuing than if he had been bicycling home on the public street when the accident happened. The fact that the colliery had arranged with the railway company to provide a special train for the men did not extent the course of the employment, as it would have done if the men were found by their contract of employment to use the train, or, it may be, if there was no other possible way for the men to get to and from their home, or from or to the colliery".
House of Lords upheld the claim for compensation.
In McCullum v. Northmbrian Shipping Co. Ltd., 1932 (147) Law Times Report 361 the House of Lords were concerned with a situation that the workman after discharge of his duties as bosum in the ship, he was offered a job of night watchman for Saturday night, and he agreed to undertake that duty which commenced from 6 p.m. to 6 a.m. Therefore, on the next day he was due to report at 6 p.m. to take up his duty as a night watchman, and "shortly before that hour he left his home, where he had spent the day, in order to go to the harbour. He called in a public house just outside the entrance to the dock premises and had a glass of bear and then proceeded on his way. He was never seen thereafter alive and his body was recovered on the 18th October from the King's Dock, about 1000 yards from the Newbrough's berth, at a place to which it might have been carried by the tide from the proximity of the ship's berth". The death was not due to drowning, but due to fracture of the skull, haemorrhage and shock. The nature of the injuries found on the body being consistent with the deceased having fallen and struck his head against something and then fallen into the water. It was a stormy night of heavy rain and strong wind. On those fact considering whether the accident had occurred during the course of his employment, Lord Macmillam speaking for the unanimous 41 House held that:
"But it is manifestly impossible to exhaust their content by definition, for the circumstances and incidents of employment are of almost infinite variety. This at least, however, can be said, that the accident in order to give rise to a claim for compensation must have some relations to the workman's employment and must be due to a risk incidental to that employment as distinguished from a risk to which all members of the public are alike exposed. Beyond this, the decision in each case must turn upon its own circumstances. In each case the character of the employment must necessarily be a vital element in determining whether a particular accident has arisen out of and in the course of it....." It was further held that:
"Till he has reached the ship or her appurtenances a seaman who has been on shore on leave is deemed not to have re-entered the sphere of his employment. Unless and until he has reached what has been described as a provided access to his ship, i.e., an access provided by his employers, the seaman returning from leave is regarded as still in a public place outside the area of his work. The rigidity of his doctrine has been so far relaxed But, so far as I am aware, there has been no case in which this House has decided in terms that a seaman who on his way to rejoin his ship meets with an accident while traversing private dock premises is disentitle to compensation.
It has been recognised time and again that the sphere of a workman's employment is not necessarily limited to the actual place where he does his work.
If in going to or coming from his work he has to use an access which is part of his employer's premises or which he is only entitled to traverse because he is going to or coming from his work, he is held to be on his master's business while he is using that access. Take the analogy of a domestic servant, which is peculiarly in point, for a domestic servant, like a seaman, "lives in," and the scene of a domestic servant employment is the master's house just as the ship is the scene of the seaman's employment. I imagine no one would 42 doubt that a maid servant returning home from her night out and meeting with any accident in the private avenue of her master's house, though at a point a quarter of a mile from the house, would be entitled to compensation. And equally so if she suffered an accident on a private access to the house which, although not the property of her master, she had permission to the traverse only as one of the household servants". (emphasis supplied) In Canadian Pacific Railway Co. v. Lockhart, 1942 Appeal Cases 591 while dealing with the use of private motor car in disregard of company's instructions while travelling to execute the master's work the workman sustained injuries due to negligent driving of the company employee. Dealing with vicarious liability of the master the privy council pointed out at p.601 thus:
"The means of transport used by him on these occasions was clearly incidental to the execution of that which he was employed to do. He was not employed to drive a motor car, but it is clear that he was entitled to use that means of transport as incidental to the execution of that which he was employed to do provided the motor car was insured against third party risks".
In Blee v. London & North Eastern Railway Co., 1937(4) All Eng. Reports 270 on January 21, 1935, a workman finished his ordinary day's work at 5.15 p.m. and again he would have to join at 7.20 a.m. on the following day, at 10.30 p.m., on that same evening, he was called for emergency duty as per terms of the contract and he was going to attend the duty, and was knocked down by a motor car while crossing the street on his way to work. Later, he died from the injuries sustained. In the claim for compensation under Workman's Compensation Act reversing the award of the arbitrator, court of appeal held that employment commenced from the time the workman left his home and that the accident arose in the course of the employment.
In Noble v. Surthern Railway Co.,1940 A.C. 583 the employee met with an accident on his way to Railway Station to report to duty. The House of Lords held that his proceeding from the hotel to the railway station was to report duty and was during the course of his employment.
His motive which induced the workman to do a thing was held not material. In Scott 43 v. Seymour, (1941) 2 All E.R. 717 at 722 (C.A.). The Duty of the injured (girl) was to get the milk. While proceeding to the farm she mounted on the horse back and she fell down and was injured. Lord Justice luxmoore held that she was within the sphere of employment, The fact that she was to encounter danger of riding on a horse was held to be immaterial from the point of view of employee. The contention that she was not to ride the horseback to go to form was negated and was held to be entitled to compensation.
In Dover Navigation Co. Ltd. v. Graig, 1939 (4) All E.R. 558 the deceased had been employed as a Sailor of a Ship which was sent to mosquito-infected river. In the way of journey, it was found that the death was out of Yellow Fever/or Malaria caused by mosquitoes' bite. It was contended by the employer and was found favour with arbitrator that the death was caused by the natural cause and this was a risk shared by everybody in the locality.
The court of appeal, reversed it and held that the words `arising out of and `in course of connote a certain degree of casual relation between the accident and the employment.
It is impossible to exactly define in positive terms the degree of that casual connection, but certain negative propositions may be laid down. For example, the fact that the risk is common to all mankind does not prove that the accident does not arise out of the employment. Nor can it be held that the death or injury from the forces of nature e.g. earthquake and lightning, is not, merely because the accident is due to the force of nature, and accident arising out of the employment. It has to be shown that the workman was specially exposed by reason of his employment to the incident of such a force. If it can be shown that the workman was exposed by reason of his employment to the risk of infection by decease-bearing bacteria, it is not difficult in coming to the conclusion that illness or decease so caused is due to and accident arising out of his employment. In my opinion, there is no distinction between the extent and the nature of the casual relation in the one case or the other. Lord Finlay, L.C. in Dennis v. White (A.J.) & Co., 1917 A.C. 479 held that the fact that the risk may be common to all mankind does not disentitle a workman to compensation if in the particular case it arises out of the employment. It seems as irrelevant that all other residents in the locality are subject to the same risk of accident as it is that all persons using the street are subject to the same risk as the servant employed to work in the street........ I myself am inclined to think that common risk of natural forces must mean the operation of the natural forces must mean the degree 44 and to the extent that they would operate in the area in which the workman could be said to the exposed to the unemployed. A seaman may be directed to serve in places abroad where the forces of nature, heat,cold, flood and tempest, cause much greater risk of injury than they do at home. In such cases, I personally doubt whether the fact that persons ordinarily to be found in the locality are exposed to such risks is of any importance. They are exposed to the risk as residents in the area. He is exposed to the risk because he is required by his employment so to expose himself...... The judge should have considered whether the seaman was exposed to that risk by reason only of his employment. Lord Wright held that, "it is not legitimate to seek to write into the section definitions and limitations which the legislature have not thought fit to insert. An incidental injury arose out of the man's employment must be such that the accident has some sort of causal relation with them, although not necessarily an active physical connection. The phrase `arising out' of the employment is not due to the nature of employment. The Dennis case was explained by Lord Wright holding that a boy's employment required him to proceed by bicycle through the streets. He was knocked down and injured. It was nothing to point out that everyone who bicycles in the street incurs a similar risk, or that the risk is general and ordinary. The observation of Lord Finlay, L.C., that `the accident was necessarily incidental to the performance of the servant's work, all inquiry as to the frequency or magnitude of the risk is irrelevant' was adhered to and followed. It was further held that indeed, in cases of this type once the actual facts are ascertained, it is for the court to ask itself whether, on those facts, the accidental injury arose out of the employment. In the present case, the answer to the question seems clear and inevitable, The seaman sustained the fatal injury because his employment took him to a river or a roadstead or a sandbank on which his vessel grounded on the West Coast of Africa. Though the Circumstances are different, he was as much exposed by the exigencies of his employment to the risk being bitten by the mosquitoes as Mrs. Thom was exposed to the risk of the falling building, or the boy Dennis to the risk of being run over in the street. The infliction of the bites was an accident.
(emphasis supplied) In Nobel v. Southern Railway Co. (supra) the appellant's husband was passed fireman. He was instructed to go to East Croydon to carry out his duties there. He had to walk from the locomotive depot to Norwood 45 Junction and then proceed by train to East Croydon. On his way he took a shorter rout along the line and was killed by an electric train. On a claim for compensation by the appellant, the House of Lords by separate but concurrent opinions held that "the deceased has not deviated from the safe route in order to fulfill any propose of his own".
Since he was going about his allotted job, the necessary inference was that he was walking along the line for the purpose of and in connection with his employer's trade or business. Therefore, the appellant was held to be entitled to recover compensation.
(emphasis supplied) In R.V. Industrial Injuries Commissioner, (1966) 1 All Eng. Reports 97, the facts were that Mr. Culverwell was employed as a semi-skilled fitter by British Cellophane, Ltd. During lunch break due to over crowd in the smoking booth he was squatting on the floor, a fork-lift truck was driven past going from one part of the factory to another and ran into Mr. Culverwell and he was severally injured and his leg pelvis was broken and his hip was dislocated. On a claim for compensation for industrial injuries under Section 7 of the National Insurance (Industrial Injuries) Act, 1946, the management contented that it was not an industrial injury and the accident did not occur in the course of his employment nor arose out of employment. Repelling it Lord Denning, M.R. observed at p.101 that in the early days the Workman's Compensation Act was interpreted too narrowly.
The House of Lords also did not appreciate the social significance of that legislation. They debarred men from compensation when Parliament thought that they ought to have it. I felt that we are going back to the old narrow interpretations of this provision. I think it plain that a man can be acting in the course of his employment, even though he is doing something which was not his duty to do.
Thus, when Mr. Culverwell went down for the break, when he was there waiting to go into the smoking booth, it was in the course of his employment, although he did not go in pursuance of any duty owed to his employer.
In Noncollas v. Insurance Officer and Ball v. Insurance Officer, (1985) 1 AII E.R. 833 two appeals were disposed of by a common judgment. Nancollas was a Senior Disablement Resettlement Officer employed by the Department of Employment. He lived at West Worthing. His employment involved, in addition to his work at his main office at Worthing, he had to attend to other job centres visiting disabled persons in his area. On 46 October 30, 1980 he went to Guildford to attend a Conference about a particular disabled person. He returned to his home that evening. On the following day he was returning by a Car. On the way he met with an accident. He laid his claim for insurance under S.50 (1) of the Social Security Act, 1975. Mr. Ball was a Sub-inspector Police Officer and also a Finger Print Expert. He was also a Sailing Instructor to the Cadets, at Embassy, 40 miles from Wakefield. He telephoned to the Police Station and thereafter he was proceeding to Embassy on his Motor Cycle. His means of transport was approved by superior officer. He was entitled to mileage allowance. When he was going to Embassy, he met with an accident. He too laid his claim under Social Security Act. The claims of both were rejected by the Tribunal. On appeal, Johan Donaldson L.,J. speaking for the court of appeal, held that the precedents provide guidance as to the approach to be adopted, rather than providing any answer in a particular case. Furthermore, "since many of the authorities are of some antiquity and date from a period when the employment relationship was not inaccurately described as that of master and servant, the importance attached to the orders or instructions of the employer and the search for contractual duties may no longer be so appropriate".
"The concept is unchanged, but in a changed social matrix, the foundation of the employment relationship is no longer so much based on orders and instructions as on requests and information" and contractual rights and duties are "supplemented by mutual expectations of cooperation". Both the instant appeals were concerned with whether the claimant was at the relevant time engaged on an activity which was in the course of his employment or whether he was going from his home to another place in order to resume the course of his employment. While at home, neither was acting in the course of his employment. " Had each completed the journey successfully, they would thereafter without doubt have been acting in the course of their employment". It was further laid down that "none of the authorities purports to lay down any conclusive test and none propounds any proposition of law which, as such, binds other courts". They do indeed approve an approach "which requires the court to have regard to and to weigh in the balance every factor which can be said in any way to point towards or away from a finding that the claimant was in the course of his employment".
(matter emphasised not indicated) In the end the decision must stand or fall on the correctness of his appreciation of the particular fact of their interrelation and, having 47 weighed those facts, the correctness of his conclusion which is very largely one of the factors, that the claimant was or was not in the course of his employment. It was further laid down that the statute calls for `yes' or `no' answer to a broad question. The approach should be that of a jury and all the relevant evidence is it `yes' or `no'. Accordingly, it was held that both the appellants were performing their duties during the course of their employment and were entitled to insurance claims.
In Smith v. Stages & Anr., (1989) 1 AII E.R. 833 M/s Machin and Stages were employed as Paripatetic Laggers to install insultation at Power stations. They were stationed in Midlands and they were asked to attend the work at Pembroke. On finishing their duty at Pembroke on their way back to Midlands, they were travelling in the car driven by Machin. It crashed through a brick wall, resulting in serious injuries to them. For damages for master's vicarious liability they sued the defendant company contending that they had been acting in the course of employment while driving the car back to Midlands and the first defendant was negligent in driving the car. The contract provides payment of wages for travel time also.
The Trial Judge held that the accident was not in the course of employment and that therefore, the company was not liable. The Court of Appeal reversed the decision and held that the employers were vicariously liable for Driver's negligence. On further appeal, Lord Goff of Chieveley in House of Lords held thus:
"I propose first to consider the problem not in relation to his journey back from Pembroke when the accident in fact happened, but in relation to his journey out to Pembroke. I shall do so because I find it easier to consider the problem uncomplicated by the fact that Monday, 29th August, was a bank holiday or by the fact that Mr. Stages was being paid eight hours' sleeping time because he had worked through the night or Sunday, 28th August, although, as well appear, I consider both facts to be irrelevant .......
The fact that he was not required by his employer to make the journey by any particular means, nor even required to make it on the particular working day made available to him, does not detract from the proposition that he was employed to make the journey. Had Mr. Stages wished, he could have driven down on the afternoon of Sunday, 28th August, and have devoted the 48 Monday to (for example) visiting friends near Pembroke. In such circumstances, it could, I suppose, be said that Stages was not travelling `in his employers'time. But this would not matter; for the fact remains that the Monday, a normal working day, was made available for the journey, with full pay for that day to perform a task which he was required by the employers to perform.
Lord Brandon of Aakbrook agreed with Lord Goff. Lord Lowery with whom Lord Keith of Kinkel and Lord Griffiths agreed posed the question "Whether Mr. Machin was acting in the course of employment when driving the car at the time of the accident is a sole question for your Lordship to decide". On considering the question it was laid down that:- "The paramount rule is that an employee travelling on the highway will be acting in the course of his employment if, and only if, he is at the material time going about his employer's business. One must not confuse the duty to turn up for one's work with the concept of already being `on duty' while travelling to it.
It is impossible to prove for every eventuality and foolish without the benefit of argument, to make the attempt, but some prima facie propositions may be stated with reasonable confidence.
(1) An employee travelling from his ordinary residence to his regular place of work, whatever the means of transport and even if it is provided by the employer, is not on duty and is not acting in the course of his employment, but, if he is obliged by his contract of service to use the employer's transport, he will normally, in the absence of an express condition to the contrary, be regarded as acting in the course of his employment while doing so.
(2) Travelling in the employer's time between workplace (one of which may be the regular workplace) or in the course of a peripatetic occupation, whether accompanied by goods or tools or simply in order to reach a succession of workplaces (as an inspector of gas meters might do), will be in the course of the employment.
(3) Receipt of wages ( though not receipt of a travelling allowance) will indicate that the employee is travelling in the employer's time 49 and for his benefit and is acting in the course of him employment, and in such a case the fact that the employee may have discretion as to the mode and time of travelling will not take the journey out of the course of his employment.
(4) An employee travelling in the employer's time from his ordinary residence to a workplace other than this regular workplace or in the course of a peripatetic occupation or to the scene of an emergency (such as a fire, an accident or a mechanical breakdown of plant) will be acting in the course of his employment.
(5) A deviation from or interruption of a journey undertaken in the course of employment (unless the deviation or interruption is merely incidental to the journey) will for the time being (which may include an overnight interruption) take the employee out of the course of him employment.
(6) Return journeys are to be treated on the same footing as outward journeys.
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