REPORTS-1924, SOOTS LAW TIMES.

9

ham.

1923.

&s

predecessor. In virtue of the provisions of the is the whole income of the property, and is lør Div. Finance Act of 1894 the respondent became not applicable if this is not the legal nature of

Inland liable on the death of Lady Stewart in estate that interest, even though de facto that interest Revenue v. duty in respect of the cesser of the right of Lady exhausts the whole income of the property. I FothringStewart and the consequent release of the estate have, I confess, great difficulty in accepting from this burden. An annuity, particularly this view. Only two cases are contemplated, November 17, when the annuitant, as was here the case, is an and case (6) is where “the interest extended to old lady, may be of small capital value in less than the whole income of the property. relation to its annual amount, and therefore, Now, if one figures the case of a widow who has when regarded as a capitalised charge, be a been left, not the liferent of a property, but an comparatively small encroachment upon the annual sum payable out of the rents of a procapital value of the whole estate. But in perty, and this annuity proves to be greater calculating estate duty under the Act of in amount than the rents, so that she has to 1894 no account is taken of this considera- suffer an abatement, I have difficulty in undertion. The annual burden is treated, not standing how this can be described as a case

& temporary one, which it is, but as “where the interest extended to less than the if it were a permanent charge. This appar- whole income of the property.” Nor do I see ently harsh rule is in accordance with the how the rule of case (8) can reasonably be policy of the Act, which is to levy a toll applied in such circumstances unless indeed it not upon succession, but upon every passing be applied in such a way as to bring about the of property in respect of death. If the cesser same result as in case (a), viz. that the duty is of a life interest were not to be treated as the chargeable on the whole value of the estate. passing of the capital value of that life interest, It is unnecessary, however, for the purposes it might not be difficult so to arrange the trans- of this case to determine that question, for mission and the burdening of family estates there is here no question of an interest which that the levy of the toll would take place at extended to the whole income of the property. intervals much longer than each expiry of In this event the benefit accruing is (section 7 enjoyment according to the average chances (7) (b)) to“ be the principal value of an addition of human life. Accordingly, in such a case as to the property equal to the income to which the present, it is necessary, in view of the the interest extended.” This language is

, provisions of the Act, to ascertain the capital obscure and cannot be read literally so as to value at the date of death equivalent to a make sense. My primary impression of the perpetual annual payment of the amount of construction coincided with what was suggested the annuity. This will depend upon two by Mr Robertson for the respondent, viz. that things--the value of money at the time of the the language is elliptical and that the true annuitant's death, and the nature of the reading is : “ The principal value of an security afforded by the estate out of which addition to the income of the property equal the annuity is payable. An annual payment to the income to which the interest extended.” of £1000 a year chargeable upon the revenue This reading appears to me to yield a simple of an estate in Consols will have a much larger and intelligible result, and it also squares with capital value than an annual payment charged the words “ the principal value of " better than upon the revenue from a coal mine.

any other reading. Principal value of" The directions of the statute as to the calcula- suggests something annual of which it is the tions of the capital and the taxable value of the principal or capital value. The other reading, cesser of an interest are contained in section 7 for which perhaps there is a measure of obiter (7) of the Act of 1894. Two cases are con authority, is that the true reading is : The templated-(a) where "the interest extended principal value of a hypothetical addition to to the whole income of the property,” and (b) the property yielding an income equal to the " where the interest extended to less than the income to which the interest extended." This whole income of the property.” In case (a) was interpreted, as I understood, as meaning the value of the benefit accruing from the “the hypothetical addition to the property of cesser of the interest is to be the principal value an extra piece of property yielding an income of the property. This is readily intelligible. equal, etc.” It may be my lack of imagination, The fiar was getting no income; now he gets but this hypothetical extension of territory an interest which extends to the whole income seems to me a confusing idea. In the case of a of the estate. As regards duty, his liability house it would necessitate a hypothetical extra is the same as if the person enjoying the life storey or wing; in the case of an island property interest had been a fiar and he had succeeded a hypothetical physical convulsion. to him. It was submitted, I think on both But either reading, I think, leads eventually sides of the bar, that this provision is applicable to the same result. What is to be got at is the only when the legal extent of the life interest capital value of the annuity figured as payable

10

REPORTS-1924, SCOTS LAW TIMES.

Inland

a

sum

18r Div. out of property identical in character with irrelevant consideration. The interest to be

that out of which it is at present paid. In the valued is to be treated as if it were a permanent Revenue v. case of The Lord Advocate v. Henderson's Trs. annual charge. The successor is to be treated Fothring- (7 F. 963), Lord Stormonth-Darling expresses as benefited by the capital amount of this

ham. it thus: “What you want to get at is the value annual interest regarded as a perpetuity. But November 17, of the benefit arising to the actual property by the annual interest in the present case was

its being relieved of the actual burden." With £4000 net, and, in my view, that is the measure that dictum I respectfully concur, although, of the benefit. I am unable to regard the as it appears to me through what I cannot but income referred to in section 7 (7) (6) as other regard as a lapsus, Lord Stormonth-Darling than this annual interest. It has to be kept in failed to give effect to it in his judgment. I view that though this happens to be the case venture to think that the criticisms to which his of an estate in land the charge might be on Lordship’s method of a sum in proportion were moveable estate such as stocks or shares, and subjected in the Inner House were coloured by section 7 (7) (6) applies equally to such a case. the fact that he made a mistake as to the factors, In such a case there would in general be no for the problem was eventually solved in the difference between the gross and the net return. Inner House by what was really a sum in pro- The successor would pay duty upon a sum portion. But is any in proportion calculated according to the amount of the benefit necessary ? I think not. It is a convenient accruing to him by the enlargement of his way of arriving at a figure for the year's purchase income. It is no doubt within the competency to be applied in estimating the capital value of of the Legislature to discriminate in favour of income which would be derived from land of the land and make the factor for calculation someparticular estate, but it is no more. It is not, thing less than the actual annual benefit. But in my view, strictly necessary to value the whole this would, I think, require to be clearly and estate at all. If a valuator, mutually chosen, expressly provided in order to warrant any were, without valuing the whole estate, to discrimination. The construction contended return the opinion, I think twenty years' for by the respondent appears to me not to be purchase the proper figure for the estate," consistent with the ruling provision that the that would supply the necessary factor. measure of benefit accruing by the cesser of

But of course, before he determined the factor, interest is the measure of liability. the valuator would have to be instructed—it is a The ambulatory amount of annual rates and question of law and not for him what kind of the still more ambulatory amount of annual rent he was to contemplate in fixing the years' expenditure upon repairs does not appear to purchase. Was it the gross rent, or the rent me to create serious difficulty. A certain less rates, etc., or the rent less rates, etc., and amount of confusion has, I think, been caused the burden of repairs ? His determination as by treating the proportional method as if it to years' purchase would vary according to the were a statutory rule and not merely a method instructions given him. This consideration of convenience. For the reasons I have stated leads directly to the real question at issue in I think income

beneficial income. this case.

Is the income which is to be Accordingly, what has to be ascertained is the capitalised the gross income or the net income ? capital value of a beneficial income from land. The middle view, that rates, etc., are to be In my view, that is just the capital value of the deducted, but not repairs, seemed to be aban- land from which this benefit could be derived, doned argumentatively by the respondent. and in ascertaining the capital value of land According to the reclaimer the question to be the burdens both of rates and of repairs must answered is: What is the capital value of land, be taken into account, however the valuation such as the estate of Murthly, yielding £4000 is made. of net rental ? According to the respondent it is : What is the capital value of land, such as the Counsel for Pursuer, The Lord Advocate estate of Murthly, yielding £4000 gross rental ? (Watson, K.C.), Skelton ; Agent, Stair A. Gillon,

I have come to be of opinion that the former Solicitor of Inland Revenue.-Counsel for Deis the true question under the Finance Act fender, Robertson, K.C., Keith; Agents, Lindsay of 1894.

Howe & Co., W.S.
The thing which is charged under section 2

property in which the deceased or any
other person had an interest ceasing on the
death of the deceased to the extent to which a
benefit accrues or arises by the cesser of such
interest.” Now, as I have already indicated,
under the scheme of the Act the temporary
character of the interest that expires is an

means

M. D.

(6) is

REPORTS-1924, SOOTS LAW TIMES.

11

1928.

orders had been given to the deceased by William 1st Div. FIRST DIVISION.

Cowan, under-manager; Frank Dickson, oversman;
and Patrick Burns, fireman, all officials of the Murray !.

Fife Coal (The Lord President, Lords Cullen and Sands.) respondents' company, not to go in front of tubs

Co. Ltd. descending the incline in the Sandwell Coal Section 7th December 1923.

from the foot of No. 8 heading and forming the siding December 7,

in the main pony haulage roadway; that such orders 2. Murray v. The Fife Coal Company

were directions with respect to working given to the

deceased with a view to safety; that notwithstanding Limited.

said orders the deceased went in front of a rake of Workmen's Compensation Act, 1906 (6 Edw. VI. cap. Section, and was as a result thereof crushed between

hutches descending said incline in the Sandwell Coal 58), section 1 (1)—Accident arising out of and in the said descending rake of hutches and another rake of course of employment-Workman engaged in taking hutohos down a sloping road-Verbal prohibition by butches which had already descended and was standhis employers against guiding the butches in their ing against the block in said siding; and that in so downward course otherwise than from the side-Dis- doing deceased (1) was in breach of said orders, and obedience to such an order an offence under the Coal (2) contravened section 74 of the Coal Mines Act, Mines Act, 1911 (1 & 2 Geo. V. cap. 50), section 74—1911, which provides : Workman in violation of such express prohibition such directions with respect to working as may be

Every person shall observe attempting to guide the hatches by getting in front given to him with a view to comply with this part of them-Workman in so doing fatally injured of this Act or the regulations of the mine or with a Beld that the accident arose out of and in the course of the employment.

view to safety.” The respondents also denied that

the claimant Mrs Jane M-Lean Braid or Laurence Stated Case under the Workmen's Compensation the claimant Marion Wallace Laurence was partially

or Wilson or Murray was wholly dependent, and that Act, 1906.

dependent, on the deceased William Laurence at the

date of his death. Mrs Jane M'Lean Braid or Laurence or Wilson Proof was led before me on 30th March 1923 and or Murray, mother of the late William Laurence, the following facts were admitted or proved : miner, residing at Milton Road, Windygates, 1. That the deceased William Laurence was on and Marion Wallace Laurence (14), the minor 29th November 1922 in the employment of child of the said Mrs Jane M‘Lean Braid or the respondents as a hanger-on at the WellsLaurence or Wilson or Murray, also residing at

green Colliery belonging to them. Milton Road, Windygates, aforesaid, claimed

2. That both claimants were partly dependent compensation under the Workmen's Com

upon the deceased at the time of his death.

3. That deceased's duties were to assist another pensation Act, 1906 (6 Edw. VII. cap. 58),

lad with the pushing of empty hutches up from the Fife Coal Co. Ltd., having their

an incline about 54 ft. long to the foot of a registered office at Leven, and having offices heading, and with the taking of full hutches and works and carrying on business at Wells- from the foot of said heading down said green Colliery, Wellsgreen, in respect of the incline, the gradient being about 1 in 26 death of the said William Laurence due to an

in favour of the loaded butch. accident while in the employment of the

4. That the deceased was instructed in taking the defenders. The matter was referred to arbitra

full hutches down said incline to guide them tion before the Sheriff-Substitute of Fife and

from the side or the back, and in particular

had been forbidden by the officials above Kinross (Dudley Stuart) at Kirkcaldy, who

12

REPORTS-1924, SOOTS LAW TIMES.

a

1st Div. On 14th April 1923 I found that the said accident form within the hutch rails—he was prohibited from Murray v.

did not arise out of and in the course of deceased's going within the rails for any purpose whatever. Fife Coal

said employment, and that the respondents were If the case of cook was rightly decided—and the Co. Ltd.

not liable in compensation to the claimants therefor. judgment was unanimous-it appears to support

lf I had found the respondents liable in compensation the respondents' contention that the accident by December 7, I should have awarded compensation to both claimants which the deceased lost his life did not arise out of his on the footing of partial dependency.

employment. I propose to follow it and to dismiss

the claim. I should add, with regard to the question The Question of Law for the opinion of the of dependency which may arise, if it should be held Court was :

that my judgment is wrong, that I should have “Was there evidence on which I was entitled to awarded compensation to both claimants on the

find that the death of William Laurence footing of partial dependency.
did not result from personal injury by
accident arising out of and in the course

The case was heard before the First Division of his employment?”

on 7th December 1923.

Argued for the Appellants : The dictum of The arbitrator appended the following note Lord Dunedin " that there are prohibitions to his award :

which limit the sphere of employment, and

prohibitions which only deal with conduct The facts in this case are not, I think, in dispute. within the sphere of employment” (Plumb v. The deceased lad met his death as the direct conse Cobden Flour Mills Co. Ltd., [1914] A.C. 62 quence of his disobedience to the instructions and warnings which he had received. These instructions at p. 67) still held good and had been recognised were explicit and peremptory, and were to the effect as authoritative in Estler Bros. V. Phillips that he must not go in front of the hutches when ((1922) 91 L.J. (K.B.) 470; 127 L.T. 73; 15 taking them down the incline. And he had been B.W.C.C. 291). The criterion was : Did the sharply rebuked on the very morning before the prohibition refer to the way in which the accident by the oversman, Dickson, who found him workman should perform his work, or to an disobeying the rule. The question whether a work- area into which he was forbidden to enter ? man, who had been injured by accident, has been If he was doing a permitted thing in a forbidden injured while doing what he was employed to do, although doing it in a dangerous, and even forbidden way, as here, he was within the sphere of his way, or while doing something that was outwith the employment (Mawdsley v. West Leigh Colliery scope of his employment, is a question seldom easy

Co. Ltd., (1911) 5 B.W.C.C. 80; Blair & Co. of solution. The line separating the one class of case Ltd. v. Chilton, (1915) 8 B.W.C.C. 324 ; 53 from the other seems to be, in spite of much exposi

S.L.R. 503; Herbert v. Samuel Fox & Co. Ltd., tion and illustration, somewhat elusive. But I [1916] 1 A.C. 405; Bourton v. Beauchamp, venture to think that in the more recent decisions of (1920] A.C. 1001 ; Donnelly v. Moore, 1921 authority the tendency of judicial opinion has been S.C. (H.L.) 41; M'Intosh v. Arden Coal Co., towards a strict view of explicit orders or prohibitions, 1923 S.C. 830; Estler Bros. v. Phillips (cit.)). in relation to the question under discussion. I take The decision in Cook v. London & South-Western the following passage from the judgment of the Lord Chancellor (Lord Birkenhead) in Donnelly v. Moore Railway Co. ((1921) 14 B.W.C.C. 100) was in

West (1921 S.C. (H.L.) at p. 46): “Where a prohibition consistent with that in Mawdsley v. for which the employer is responsible, in matters Leigh Colliery Co. Ltd. (cit.), and with that comparable to those under discussion, is brought in Estler Bros. v. Phillips (cit.), and was unclearly to the notice of the workman, his breach of sound. The arbitrator had therefore reached it takes him out of the sphere of his employment, so

a wrong conclusion. that the risk in which he involves himself has ceased

Argued for the Respondents : The arbitrator to be reasonably incidental to that employment. This dictum was quoted and applied by Lord Stern- direction as to the manner in which he should

was right. The workman had been given a dale M.R. in a case which, in the facts proved, bears perform his work, coupled with a prohibition. a close resemblance to the present. In Cook v. L. & S.-W. Railway Co. ((1921) 14 B.W.C.C. 100) The prohibition was comparable to a prohibition a railway shunter was injured while in the act of under the Coal Mines Act, 1911, which had been coupling up two corridor carriages. His duty was properly brought to the workman's notice, to couple the carriages, and to do so, he was obliged and fulfilled the requirements of the territorial to stand between the lines on which they were. But test propounded by Lord Dunedin in Conway he was expressly prohibited from going between the v. Pumpherston Oil Co. Ltd. (1911 S.C. 660) and lines until the carriages were at rest. He disobeyed in Plumb v. Cobden Flour Mills Co. Ltd. (cit.). this order by going within the lines while the one Further illustrations of the kind of prohibition, carriage was being shunted against the other, and disobedience to which would exclude a claim in consequence was fatally injured. It was held that the accident did not arise out of his employment, for compensation, could be obtained from and that the company was not liable. The circum Rodger v. Fife Coal Co., 1923 S.C. 280 ; Fairstances in the present case are even less favourable hurst v. Hollinwood Screw and Rivet Co., (1923) to the claim ; for the deceased had no duty to per- 16 B.W.C.C. 168; Hawkridge v.

Hawkridge v. Howden

REPORTS-1924, SCOTS LAW TIMES.

13

Fife Coal

1929.

a

Clough Collieries Co. Ltd., (1923) 16 B.W.C.C. we have to determine here were brought to 1st Div. 55; Gaunt v. Babcock & Wilcox, 1918 S.C. 14. the notice of the House, including, of course, ,

Murray v. The question in all such cases, was always one Donnelly v. Moore. The House decided that of degree. It was only possible to say that the workman's breach of the prohibition did Co. Ltd. certain cases illustrated principles. The cases not put him outwith the scope of his employ, December 7, themselves could not be divided into com- ment. No reasons are given in the judgment partments. Estler Bros. v. Phillips (cit.) decided as reported, but it is very evident that, after

. no general principle. The decision there merely a full citation of the authorities, the House of decided a particular case, and was of no value Lords took the view that the prohibition did for general reference.

not belong to the class dealt with in Donnelly On 7th December 1923 the Court answered V. Moore. Now, I am not able to draw any the question of law in the negative.

material distinction between the character of

the prohibition in Estler's case and the character The Lord President (Clyde). --At the time of of the prohibition in the present case. Both the accident the workman was engaged in taking of them seem to me to be prohibitions which certain hutches down a sloping road in Wells- only deal with conduct within the sphere of green Colliery. This was part of his regular employment” (Plumb v. Cobden Flour Mills duties as a hanger-on. He had been verbally Co. Ltd., [1914) A.C. 62 at p. 67). The only prohibited by his employers from guiding the thing that raises any doubt in my mind is hutches in their downward course otherwise that, if I were at liberty to exercise my own than from the side, In violation of this express judgment, I should think exactly the same of prohibition, of which he had been reminded so the prohibition against a shot-firer prematurely recently as the morning of the day of the visiting the locus of a miss-fire. But the opinion accident, he attempted to guide à rake of to that effect which I expressed in the Donnelly hutches down the slope by getting in front v. Moore group of cases was corrected in the of them. The result was that an accident House of Lords. There is, indeed, one feature happened which cost him his life. The question in this case which does not find a counterpart which is raised on the facts of the case as held in Estler; and that that under section 74 of proved is whether the workman's breach of the Coal Mines Act, 1911 (1 & 2 Geo. V. сар. the prohibition does or does not put him outside 50), disobedience to any order with regard to the scope of his employment. This is, of course, the working of the mine may be treated as an a question of law. The learned arbitrator has offence. But, if that specialty attaching to decided it on the principle thought to have orders in coal mines had possessed any material been laid down by the Lord Chancellor in the importance, I have no doubt it would have group of cases reported under the name of been dealt with in the House of Lords judgments Donnelly v. Moore (1921 S.C. (H.L.) 41 ; [1921] in the Donnelly v. Moore group. Since then, I 1 A.C. 329), and in accordance with which the cannot distinguish the present case from Estler, recent case of M'Intosh v. Arden Coal Co. (1923 my duty seems to me to follow it as the latest S.C. 830) was decided in this Court. Putting House of Lords decision on the subject. I am aside as irrelevant the statutory or non-statutory therefore for answering the question put to us origin of a prohibition, my own opinion is that in the negative. a prohibition, directed to a hanger-on, against placing himself between the rails in front of Lord Cullen.- Apart from decisions, I should 8 moving rake of hutches, in order to control have come to the conclusion that the act of them, is in every way comparable—as regards the workman was misconduct in the course of importance, object, and character—with a doing his work rather than one of going beyond prohibition, directed to a shot-firer, against the scope of his employment. While the prematurely placing himself in proximity to authoritative decisions are varying, I agree the site of a miss-fire, in order to get on with with your Lordship that we may be guided his work. But, in deciding the question of by the recent decision in the case of Estler law, the decisions of the House of Lords are (91 L.J. (K.B.) 470; 15 B.W.C.C. 291), which binding on us, and Donnelly v. Moore has been I am not able to distinguish materially from succeeded by the later case of Estler Bros. v. this one as regards the degree or quality of the Phillips (91° L.J. (K.B.) 470; 127 L.T. 73; rule which was broken. I accordingly think 15 B.W.C.C. 291) decided in 1922. In that case with your Lordship that we should follow that there was the clearest prohibition directed to authority and answer the question in the the workman against oiling machinery while in negative. motion, and it was proved that the workman was fully aware of it. It is stated in the Lord Sands.-In this case a workman, whose judgment, and appears from the report, that all duty it was to bring trucks down an incline, the authorities dealing with the legal question disregarded a prohibition against getting in