REPORTS-1924, SCOTS LAW TIMES.

Inland

1928,

10

REPORTS-1924, SCOTS LAW TIMES.

1st Div. out of property identical in character with that out of which it is at present paid. In the Revenue v. case of The Lord Advocate v. Henderson's Trs. Fothring- (7 F. 963), Lord Stormonth-Darling expresses ham. it thus: "What you want to get at is the value November 17, of the benefit arising to the actual property by its being relieved of the actual burden." With that dictum I respectfully concur, although, as it appears to me through what I cannot but regard as a lapsus, Lord Stormonth-Darling failed to give effect to it in his judgment. I venture to think that the criticisms to which his Lordship's method of a sum in proportion were subjected in the Inner House were coloured by the fact that he made a mistake as to the factors, for the problem was eventually solved in the Inner House by what was really a sum in proportion. But is any sum in proportion necessary? I think not. It is a convenient way of arriving at a figure for the year's purchase to be applied in estimating the capital value of income which would be derived from land of the particular estate, but it is no more. It is not, in my view, strictly necessary to value the whole estate at all. If a valuator, mutually chosen, were, without valuing the whole estate, to return the opinion, "I think twenty years' purchase the proper figure for the estate," that would supply the necessary factor.

But of course, before he determined the factor, the valuator would have to be instructed it is a question of law and not for him what kind of rent he was to contemplate in fixing the years' purchase. Was it the gross rent, or the rent less rates, etc., or the rent less rates, etc., and the burden of repairs? His determination as to years' purchase would vary according to the instructions given him. This consideration leads directly to the real question at issue in this case. Is the income which is to be capitalised the gross income or the net income? The middle view, that rates, etc., are to be deducted, but not repairs, seemed to be abandoned argumentatively by the respondent. According to the reclaimer the question to be answered is: What is the capital value of land, such as the estate of Murthly, yielding £4000 of net rental? According to the respondent it is: What is the capital value of land, such as the estate of Murthly, yielding £4000 gross rental?

I have come to be of opinion that the former is the true question under the Finance Act of 1894.

The thing which is charged under section 2 (b) is "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

irrelevant consideration. The interest to be valued is to be treated as if it were a permanent annual charge. The successor is to be treated as benefited by the capital amount of this annual interest regarded as a perpetuity. But the annual interest in the present case was £4000 net, and, in my view, that is the measure of the benefit. I am unable to regard the income referred to in section 7 (7) (6) as other than this annual interest. It has to be kept in view that though this happens to be the case of an estate in land the charge might be on moveable estate such as stocks or shares, and section 7 (7) (6) applies equally to such a case. In such a case there would in general be no difference between the gross and the net return. The successor would pay duty upon a sum calculated according to the amount of the benefit accruing to him by the enlargement of his income. It is no doubt within the competency of the Legislature to discriminate in favour of land and make the factor for calculation something less than the actual annual benefit. But this would, I think, require to be clearly and expressly provided in order to warrant any discrimination. The construction contended for by the respondent appears to me not to be consistent with the ruling provision that the measure of benefit accruing by the cesser of interest is the measure of liability.

The ambulatory amount of annual rates and the still more ambulatory amount of annual expenditure upon repairs does not appear to me to create serious difficulty. A certain amount of confusion has, I think, been caused by treating the proportional method as if it were a statutory rule and not merely a method of convenience. For the reasons I have stated I think income means beneficial income. Accordingly, what has to be ascertained is the capital value of a beneficial income from land. In my view, that is just the capital value of the land from which this benefit could be derived, and in ascertaining the capital value of land the burdens both of rates and of repairs must be taken into account, however the valuation is made.

Counsel for Pursuer, The Lord Advocate (Watson, K.C.), Skelton; Agent, Stair A. Gillon, Solicitor of Inland Revenue. - Counsel for Defender, Robertson, K.C., Keith; Agents, Lindsay Howe & Co., W.S. M. D.

REPORTS-1924, SCOTS LAW TIMES.

orders had been given to the deceased by William Ist Div.
Cowan, under-manager; Frank Dickson, oversman;
and Patrick Burns, fireman, all officials of the Murray v.

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

1ST DIV.

Fife Coal

12

REPORTS-1924, SCOTS LAW TIMES.

On 14th April 1923 I found that the said accident form within the hutch rails-he was prohibited from did not arise out of and in the course of deceased's Murray v. said employment, and that the respondents were Co. Ltd. not liable in compensation to the claimants therefor. If I had found the respondents liable in compensation December 7, I should have awarded compensation to both claimants

1928.

on the footing of partial dependency.

The Question of Law for the opinion of the
Court was:

"Was there evidence on which I was entitled to
find that the death of William Laurence
did not result from personal injury by
accident arising out of and in the course
of his employment?"

going within the rails for any purpose whatever. If the case of Cook was rightly decided and the judgment was unanimous-it appears to support the respondents' contention that the accident by which the deceased lost his life did not arise out of his employment. I propose to follow it and to dismiss the claim. I should add, with regard to the question of dependency which may arise, if it should be held that my judgment is wrong, that I should have awarded compensation to both claimants on the footing of partial dependency.

The case was heard before the First Division 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:

The facts in this case are not, I think, in dispute.

which limit the sphere of employment, and prohibitions which only deal with conduct within the sphere of employment" (Plumb v. Cobden Flour Mills Co. Ltd., [1914] A.C. 62 at p. 67) still held good and had been recognised as authoritative in Estler Bros. v. Phillips ((1922) 91 L.J. (Κ.Β.) 470; 127 L.T. 73; 15 B.W.C.C. 291). The criterion was: Did the prohibition refer to the way in which the workman should perform his work, or to an area into which he was forbidden to enter ? If he was doing a permitted thing in a forbidden 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

The deceased lad met his death as the direct conse-
quence of his disobedience to the instructions and
warnings which he had received. These instructions
were explicit and peremptory, and were to the effect
that he must not go in front of the hutches when
taking them down the incline. And he had been
sharply rebuked on the very morning before the
accident by the oversman, Dickson, who found him
disobeying the rule. The question whether a work-
man, who had been injured by accident, has been
injured while doing what he was employed

scope of his employment, is a question seldom easy
of solution. The line separating the one class of case
from the other seems to be, in spite of much exposi-
tion and illustration, somewhat elusive. But I
venture to think that in the more recent decisions of
authority the tendency of judicial opinion has been
towards a strict view of explicit orders or prohibitions,
in relation to the question under discussion. I take
the following passage from the judgment of the Lord

Co. Ltd., (1911) 5 B.W.C.C. 80; Blair & Co. Ltd. v. Chilton, (1915) 8 B.W.C.C. 324; 53 S.L.R. 503; Herbert v. Samuel Fox & Co. Ltd., [1916] 1 A.C. 405; Bourton v. Beauchamp, [1920] A.C. 1001; Donnelly v. Moore, 1921 S.C. (H.L.) 41; MʻIntosh v. Arden Coal Co., 1923 S.C. 830; Estler Bros. v. Phillips (cit.)). The decision in Cook v. London & South-Western Chancellor (Lord Birkenhead) in Donnelly v. Moore Railway Co. ((1921) 14 B.W.C.C. 100) was inconsistent with that in Mawdsley v. "Where a prohibition Leigh Colliery Co. Ltd. (cit.), and with that in Estler Bros. v. Phillips (cit.), and was unsound. The arbitrator had therefore reached a wrong conclusion.

(1921 S.C. (H.L.) at p. 46):

for which the employer is responsible, in matters
comparable to those under discussion, is brought
clearly to the notice of the workman, his breach of
it takes him out of the sphere of his employment, so
that the risk in which he involves himself has ceased
to be reasonably incidental to that employment."
This dictum was quoted and applied by Lord Stern-
dale M.R. in a case which, in the facts proved, bears
a close resemblance to the present. In Cook v.
L. & S.-W. Railway Co. ((1921) 14 B.W.C.C. 100)
a railway shunter was injured while in the act of
coupling up two corridor carriages. His duty was
to couple the carriages, and to do so, he was obliged
to stand between the lines on which they were. But
he was expressly prohibited from going between the
lines until the carriages were at rest. He disobeyed
this order by going within the lines while the one
carriage was being shunted against the other, and
in consequence was fatally injured. It was held that
the accident did not arise out of his employment,
and that the company was not liable. The circum-
stances in the present case are even less favourable
to the claim; for the deceased had no duty to per-

West

Argued for the Respondents: The arbitrator was right. The workman had been given a direction as to the manner in which he should perform his work, coupled with a prohibition. The prohibition was comparable to a prohibition under the Coal Mines Act, 1911, which had been properly brought to the workman's notice, and fulfilled the requirements of the territorial test propounded by Lord Dunedin in Conway v. Pumpherston Oil Co. Ltd. (1911 S.C. 660) and in Plumb v. Cobden Flour Mills Co. Ltd. (cit.). Further illustrations of the kind of prohibition, disobedience to which would exclude a claim for compensation, could be obtained from Rodger v. Fife Coal Co., 1923 S.C. 280; Fairhurst v. Hollinwood Screw and Rivet Co., (1923) 16 B.W.C.C. 168; Hawkridge v. Howden REPORTS-1924, SCOTS LAW TIMES.

Clough Collieries Co. Ltd., (1923) 16 B.W.C.C. 55; Gaunt v. Babcock & Wilcox, 1918 S.C. 14. The question in all such cases was always one of degree. It was only possible to say that certain cases illustrated principles. The cases themselves could not be divided into compartments. Estler Bros. v. Phillips (cit.) decided no general principle. The decision there merely decided a particular case, and was of no value for general reference.

On 7th December 1923 the Court answered the question of law in the negative.

The Lord President (Clyde). At the time of the accident the workman was engaged in taking certain hutches down a sloping road in Wellsgreen Colliery. This was part of his regular duties as a hanger-on. He had been verbally prohibited by his employers from guiding the hutches in their downward course otherwise than from the side. In violation of this express prohibition, of which he had been reminded so recently as the morning of the day of the

13

1923.

we have to determine here were brought to 1st Div.
the notice of the House, including, of course, Murray v.
Donnelly v. Moore. The House decided that Fife Coal
the workman's breach of the prohibition did Co. Ltd.
not put him outwith the scope of his employ- December 7,
ment. No reasons are given in the judgment
as reported, but it is very evident that, after
a full citation of the authorities, the House of
Lords took the view that the prohibition did
not belong to the class dealt with in Donnelly
v. Moore. Now, I am not able to draw any
material distinction between the character of
the prohibition in Estler's case and the character
of the prohibition in the present case. Both
of them seem to me to be " prohibitions which
only deal with conduct within the sphere of
employment” (Plumb v. Cobden Flour Mills
Co. Ltd., [1914] A.C. 62 at p. 67). The only
thing that raises any doubt in my mind is
that, if I were at liberty to exercise my own
judgment, I should think exactly the same of
the prohibition against a shot-firer prematurely
visiting the locus of a miss-fire. But the opinion

accident, he attempted to guide a 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

House of Lords. There is, indeed, one feature
in this case which does not find a counterpart
in Estler; and that is that under section 74 of
the Coal Mines Act, 1911 (1 & 2 Geo. V. cap.
50), disobedience to any order with regard to
the working of the mine may be treated as an
offence. But, if that specialty attaching to
orders in coal mines had possessed any material
importance, I have no doubt it would have
been dealt with in the House of Lords judgments
in the Donnelly v. Moore group. Since, then, I
cannot distinguish the present case from Estler,
my duty seems to me to follow it as the latest
House of Lords decision on the subject. I am
therefore for answering the question put to us
in the negative.

of them. The result was that an accident
happened which cost him his life. The question
which is raised on the facts of the case as held
proved is whether the workman's breach of
the prohibition does or does not put him outside
the scope of his employment. This is, of course,
a question of law. The learned arbitrator has
decided it on the principle thought to have
been laid down by the Lord Chancellor in the
group of cases reported under the name of
Donnelly v. Moore (1921 S.C. (H.L.) 41; [1921]
1 A.C. 329), and in accordance with which the
recent case of MʻIntosh v. Arden Coal Co. (1923
S.C. 830) was decided in this Court. Putting
aside as irrelevant the statutory or non-statutory
origin of a prohibition, my own opinion is that
a prohibition, directed to a hanger-on, against
placing himself between the rails in front of
Lord Cullen. Apart from decisions, I should
a 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
his work. But, in deciding the question of
law, the decisions of the House of Lords are
binding on us, and Donnelly v. Moore has been
succeeded by the later case of Estler Bros. v.
Phillips (91 L.J. (K.B.) 470; 127 L.T. 73;
15 B.W.C.C. 291) decided in 1922. In that case
there was the clearest prohibition directed to
the workman against oiling machinery while in
motion, and it was proved that the workman
was fully aware of it. It is stated in the
judgment, and appears from the report, that all
the authorities dealing with the legal question

with your Lordship that we may be guided
by the recent decision in the case of Estler
(91 L.J. (K.B.) 470; 15 B.W.C.C. 291), which
I am not able to distinguish materially from
this one as regards the degree or quality of the
rule which was broken. I accordingly think
with your Lordship that we should follow that
authority and answer the question in the
negative.

Lord Sands. In this case a workman, whose
duty it was to bring trucks down an incline,
disregarded a prohibition against getting in