APP. employompany D. 291; owever, Cremins ted (ubi pproved he Court Le user of We must light of Cremins' he train - getting ore than co enable hing the d n's case s speech le in their a train vever, the was dis mployer.” he CT. OF APP.] NEWTON V. Guest, Keen, AND NETTLEFOLDS LIMITED. bases the workman's right to recover in respect of an injury by accident, arising out of his employment, on the question whether he was, when the accident which injured him occurred, in the course of performing some duty arising out of his contract of service which he owed to his employer." And later on, Lord Atkinson says this: "I think the legitimate conclusion to be drawn from the whole of the evidence is that the appellants, in order to convenience their workmen, gave to them the privilege of being carried on these trains to the colliery of the appellants on payment of a very small sum of 1s. 8d. per week, of which privilege the workmen (including Hewitson, the respondent) were free to avail themselves or the contrary." Lord Wrenbury, said: “The man is not in the course of his employment unless the facts are such that it is in the course of his employment, and in performance of a duty under his contract of service, that he is found in the place where the accident occurs." 66 These are observations we have to apply, and we have to bear in mind that Cremins' case was definitely disapproved of; therefore, we must start in this case by taking it as a fact that the train was a means of access to the pits. It was simply a privilege, which the miners could accept or refuse as they pleased. They were not compelled to use it. Mr. Cave has argued that the matter must be taken as concluded by the findings of fact by the County Court judge. It is clear that the learned judge carefully considered Hewitson's case. He said that the present case was different from both Cremin's case and Hewitson's case, and it stood alone. That was because of his finding of fact. He found as follows: I am satisfied that it would be unreasonable to expect miners to walk in all weathers for miles over a bleak exposed mountain road from Merthyr Tydfil and Mountain Hare to the colliery, or along alternative routes suggested by the respondents, so as to arrive in sufficient numbers for the respondents to get a full shift underground by seven o'clock in the morning, and that the trains were the only practicable and reasonable means of access of the colliery." He does not use the word necessary" but the words "practicable and reasonable." But, having regard to what Lord Buckmaster said in Hewitson's case which I have referred to, in this case it is not shown that there was a necessity for the miners to use the train. The County Court judge also found that the trains had been provided by the respondents for over thirty years, but that fact only brings into force the decision of Cremins' case. He also said that clause 26 of the Conciliation Board agreement applied, but I think that he was wrong, and that clause has no relevance to the decision of this case. Then he goes on to say that on the fair construction of that clause 26 there was an express contract on the part of the respondents to supply these trains and he thinks that in anv 66 [CT. OF APP. comments of the House of Lords in Hewitson case on the Cremins' case, so that he wa definitely wrong in that finding. Then h says, "the trains were part of the machiner which the respondents considered necessar for the proper working of the colliery, and th use of the train was an incident or adjunct c his work as a labourer on the morning shift tha must be treated for the purposes of the Work men's Compensation Act 1906, as a part of th work he was employed to do." And, havin regard to all the evidence, he came to the cor clusion that it was the duty of the men to us the train. That is contrary to the view of th House of Lords that the employment did no begin when the miner entered the train i the morning and cease when he left in th evening. Then he makes a summary an finds that there was on the miner's part 'duty to obey," i.e. a duty to take that par ticular train. That, too, seems in direct con flict with the dissent expressed in the House o Lords to Cremins' case. Again, he says tha when the miners went to the train they di not go for their own purposes, but as a matte of duty to their employers. It seems that th County Court judge has endeavoured by hi findings of fact to exclude the application o Hewitson's case. But it was necessary also fo him to consider and apply Cremins' case so fa as the facts were concerned. 66 case. Upon the whole, I have come to th conclusion that the County Court judg had not got evidence before him whic justified the findings of fact to which he cam and has not properly applied Hewitson's cas and has attempted to make this case b his findings of fact fall outside of Hewitson. If there had been evidence to justify th findings we could not interfere, but the Count Court judge has misdirected himself as to matter of law and had no evidence before hir which could take this case outside of Hewitson case. Therefore this case is governed by th observations of the Law Lords in Hewitson case, and the appeal must be allowed, an allowed with costs. SCRUTTON, L.J.-These trains are used ver extensively by miners who live a distance fro their work at the collieries. The question whether a miner who met with an acciden while crossing the railway line to join one these trains was at that time to be considere to be in the course of his employment. Th decisions on this question are conflicting In Nov. 1922 the question arose in a cas before this court, St. Helens Colliery Compan v. Hewitson (ubi sup.), in which the workma lived six miles from the colliery, and th employer collected his labour by running workman's train from Maryport, where th workman lived, and the train was provided b the railway company, each workman paying small fare. Lord Sterndale said that he coul not say he was satisfied with the outhasiti. CT. OF APP.] NEWTON V. Guest, Keen, and NETTLEFOLDS LIMITED. reviewed, and came to the conclusion that he ought to follow Cremins v. Guest, Keen and Nettlefolds (ubi sup.) and Walton v. Tredegar Iron and Coal Company Limited (1913, 6 B. W. C. C. 592), and not to follow Davis v. Rhymney Iron Company (1900, 16 Times L. Rep. 329 ; 2 W. C. C. 22), and Nolan v. Porter (1909, 2 B. W. C. C. 106), but when the House of Lords dealt with the case they decided that the last two cases were right and the first two wrong. In my view, the House of Lords having said that, the Court of Appeal ought to follow it and ought not to try and find ways out of following it, and thereby add to the confusion by setting up another set of cases. The principle seems to be this. We have not yet got to the stage in which a workman would be entitled to compensation for any accident which might happen, at any time or place, because he was working on a certain kind of employment for some employer. We still have accidents in the employment and accidents which are the workman's own risk, and therefore a line has been drawn as to time and place of the accident, and the statute has provided the limitation that the accident must arise out of and in the course of his employment to entitle the workman to have a right to recover compensation in respect of it. The simple way is to ask for how long and in what place he was employed, and if the answer is that the accident happened at the time for which, and at the place at which, he was employed he would be entitled to compensation. Apply that test in this case, as I think the House of Lords applied it in Hewitson's case. Take the case of a workman when he comes out of the colliery; he can go where he likes; he can go straight to a football match; he is not obliged to go straight home, or home at all. In what sense, then, can it be said that he is employed by his employer, or under the orders of his employer when he leaves the colliery, when he can then go wherever he likes. This colliery employs about 2000 men, and close to the colliery is a village containing 700 of these men who do not use the trains at all. On the other side of the hill there reside another 150 who also make no use of these trains, but walk the two miles to the colliery. These men are not in the employment of the colliery owners when walking to their work, and they are not paid for the time taken to walk. Further away still, also on the other side of the hill, Newton lived at Mountain Hare, but the employer has nothing to do with his living there. He might walk, and how is his journey by the train part of his employment? He is not paid for the time on the train. Mr. Cave, when I pressed him, had to contend that the miner broke his contract of service if he did not travel by the train to his work. But that is a position impossible for him to sustain. The County Court judge said that the only practicable and reasonable means of access to the colliery for Newton was to travel by the train, but I see no evidence in which he was justified in finding train was such an incident and employment that it was a part ment. I can see no reason f I think that what the County C Mr. Tudor Davis, the manager ents, shows that he had it in round the decision in Hewit asked him, "Did you expect the train." And the answe And he then said, "You expe it," and interpreted that as duty was placed upon Newton and so arrived at the conclus bound to use the train. Tha been a mental process to get 1 the decision in Hewitson's cas translate the answer in the Court judge translated it, as, sa him to use the train seems to that he supposed he would jectured he would use it, not th to use the train. The County this answer concluded, "it was men to make use of these t the duty of the miners to go The answer to that question. viously "no." Therefore I c clusion that this court, followi for such a case as this given Lords in Hewitson's case, are this appeal. SARGANT, L.J.-I think thi by the recent decision of the I Hewitson's case by which, i workman to recover in such the test laid down by Lord whether the workman had n travel, or whether he was un to do so. In the present ca evidence on which the Cour could find that there was an ob workman to travel by the tra for him to do so. Facilities 1 certainly greater than those evidence went no further th the workmen would probably of those facilities. I can find actual obligation on the wor train, either moral or physica appeal must be allowed Solicitors for the appella Goddard, for D. W. Jones Tydfil. Solicitors for respondents, for Edward Roberts, Dowlais. - OF APP. anct of the he employat finding. udge asked e respondhind to get case. He man to use s. "Yes." him to use ing that a e the train. hat he was ns to have and evade t I cannot the County he expected - mean only so, he con- was bound judge from duty of the ." Was it e by train? ink, is obto the cone directions e House of nd to allow e is covered e of Lords in der for the ase as this, ckmaster is a right to n obligation can see no Court judge Peacock and en and Warren July 4, 1925.] CT. OF APP.] Feb. 8, 9, and 23. THE LAW TIMES. THE CHEKIANG. (Before BANKES and ATKIN, L.JJ., and LAWRENCE, J.) THE CHEKIANG. (a) ON APPEAL FROM THE ADMIRALTY DIVISION. Ship Collision-Damages-Detention of warship-Measure of damage-Owner's repairs proceeding contemporaneously with collision repairs Owner's repairs necessary for periodical refit-Time for overhaul advanced in order to take advantage of the vessel being in dry dock for collision repairs-Assessment of damages for detention of a non-profit earning vessel. In every simple case of a claim by shipowners against tortfeasors whose liability is established or admitted, the question in assessing damages must be, "Has the shipowner proved that he has suffered any loss, and if so, how much? Thus, if the whole of the time during which a vessel was detained was occupied by necessary owners' repairs as well as by repairs necessary to make good the collision damage, the work on both sets of repairs proceeding simultaneously and continuously and occupying the whole time, the is entitled to nominal owner damages only for detention, since his vessel has not been detained longer than is necessary to perform urgently needed repairs apart from the collision damage. The defendants admitted liability for a collision between their vessel and a light cruiser, and the question of damages was referred to the registrar and merchants for assessment. After the collision the cruiser was sent for repairs to a dockyard. It appeared that she was due for her annual refit within four months of going into dock to perform the collision repairs, and it was accordingly decided by the naval authorities that she should go through her refit whilst the collision repairs were being carried out. The two sets of repairs accordingly proceeded simultaneously. At the reference the registrar allowed twenty days detention, that being the length of time which in his opinion could be properly allocated to the repairs, at a daily figure based upon a percentage of the capital value of the ship. He also allowed a sum for the pay and allowances of the officers and crew whilst the repairs were being carried out. was proved that the decision at once to refit the cruiser was not taken until after it was decided to perform the collision repairs. On appeal the report was upheld by the president. Held, (1) that the damages in collision cases being measured in accordance with the ordinary principles of common law, the registrar had proceeded upon a wrong principle in applying a fixed rule and ignoring considerations relevant to the question of the actual loss sustained by the plaintiffs by being deprived of the use of their chattel; (2) that there is no rule of general application for the assessment It [Vol. 133. -31 [CT. OF APP. (3) that, if it could be shown that the peri of collision damage enabled the owners to exec owners' repairs, the completion of which wor otherwise with reasonable certainty have prived the owners of some period of benefic use, the time so saved may properly be tak into account in determining the loss sustaine Marine Insurance Company v. China Transpaci Steamship Company (The Vancouver) (188 55 L. T. Rep. 491; 11 App. Cas. 573 ; 6 As Mar. Law Cas. 68), Ruabon Steamsh Company v. London Assurance Compa (81 L. T. Rep. 585; (1900) A. C. 6; 9 As Mar. Law Cas. 2), and The Haversha Grange (93 L. T. Rep. 733; (1905) P. 30 10 Asp. Mar. Law Cas. 156) considered a distinguished. The Acanthus (85 L. T. Rep. 696; (1902) P. 1 9 Asp. Mar. Law Cas. 276) and The Asti khan (102 L. T. Rep. 539; (1910) P. 17 11 Asp. Mar. Law Cas. 390) explained. APPEAL from a decision of Sir Henry Duke, confirming a report of the registrar a merchant. The plaintiffs were the Admiralty Co missioners, and the defendants were the owne of the steamship Chekiang. The defendan admitted liability in respect of a collision whi took place at Hangkow, on the Yang-ts Kiang, on the 22nd Aug. 1921, between t Chekiang and H.M.S. Cairo, a light cruiser the China Station. to After the collision H.M.S. Cairo proceeded Hongkong dockyard undergo repai where she arrived on the 3rd Sept. 192 She went into dry dock, where the work repairing the collision damage was carried ou It appeared that she was due to undergo h periodical general refit in Dec. 1921, and, aft it was known that the collision repairs wou be carried out, it was decided that the re should be performed at the same time as t collision repairs. The repairs necessary f the periodical overhaul, which involved expenditure of some 4000l., were there fo carried out simultaneously with the collisi repairs. H.M.S. Cairo remained in the doc yard until the first week in Nov. 1921, duri which time working parties were kept board. The following sums were respectively claim and allowed in his report by the registrar : Interest was allowed thereon at 5 per cent. per annum from the 29th Oct. 1921 until paid. The registrar gave the following reasons for his report: In this reference, the Lords Commissioners of the Admiralty claimed damages arising from a collision between the light cruiser Cairo and the Chekiang which occurred at Hankow on the 22nd Aug. 1921, and for which the Chekiang was to blame. "The Cairo was temporarily repaired at Hankow and left that place on the 3rd Sept. for Hongkong, where she was permanently repaired. The Cairo was due for her annual refit in Dec. 1921, but it was decided that as the collision repairs would take some time the annual refit should be done at the same time. The combined work was finished on the 2nd Nov., but the Admiralty did not claim for loss of time in respect of the collision repairs beyond the 27th Sept. The defendants contended that they were not liable for any loss of time, or, in the alternative, for a shorter time than that claimed by the plaintiffs. As regards the time from the 22nd Aug. to the 2nd Sept., I am of opinion that this period cannot be taken into account in estimating the damages for loss of time. The Cairo, so far as can be ascertained, after the collision still fulfilled the purpose for which she was stationed at Hankow, and no evidence has been given to prove any loss to the Crown during that period. As regards the later period, it is clearly proved that the decision at once to refit the Cairo was not taken until after it was decided to repair the collision damage. The question, therefore, resolves itself into one as to the length of time which can be properly allocated to the collision work. The estimate of Mr. King-Salter, who was in charge of the work, was three weeks, and he is in a position to form a judgment. On the other hand, this estimate is an assumption only, and is not corroborated by any independent evidence. For the defendants two very competent witnesses estimated the time as seven days, which again is an assumption, and by gentlemen who did not see the work being done. The evidence of a person who has had charge of the work for the plaintiffs naturally but unconsciously has a bias in their favour, and the weight of the defendants' evidence cannot be altogether passed over. The conclusion to which the merchant and myself have come is that a reasonable time to allow from the 3rd Sept. is 20 days. "As regards the items in respect of officers' and crew's wages, there is evidence that they were employed to some extent on the refitment of the Cairo, and, having regard to this fact and to the time allowed, the amount allowed for this item is reduced to 38001." The defendants appealed against the allowance of items 2 and 3. On the 12th Dec. Sir Henry Duke, P. dismissed the appeal and confirmed the report. The defendants appealed. V. which has no application to a c rage, but applied only to the ap dock dues. In Ruabon Steams London Assurance Company (81 (1900) A. C. 6; 9 Asp. Mar. L question was liability for dock Haversham Grange (93 L. T. R P. 307; 10 Asp. Mar. Law Cas. 1 was the same, but arose as bet feasers. In Marine Insurance C China Transpacific Steam (The Vancouver) (1886, 55 L. 11 App. Cas. 573; 6 Asp. Mar. I question was one of repairs, The principles upon which dama in collision cases are identical wit applied in assessing damages a The officers and crew were empl ship throughout the period of Admiralty thus having had the services, their pay, &c., is not a loss. The rule for assessing detention of a non-profit-earni comparatively modern origin, 1 rule that a percentage of the the vessel is the appropriate tribunal must look at the actua Bateson, K.C. and Balloch for t The president applied the r which have been established and the Admiralty registry for ma Ruabon (sup.) and The Vancou and The Haversham Grange (si appellants seek to distinguish principle, which has long bee assessing damages in collision owner may take advantage of in dock for the purpose of unde repairs to perform owner's r thereby reducing the damages recover for detention. [Reference was also made to in the judgments.] C Feb. 23. BANKES, L.J.-Th from the president affirming th registrar. The objection to the the registrar has assessed the da the plaintiffs were entitled on a v The claim for damages was or Admiralty, arising out of a co H.M.S. Cairo and the defenda Chekiang at Hankow on the 22 Liability was admitted, and damages was referred to the merchant. Among the items of were the following: Loss of H the period the 23rd Aug. to the 2 inclusive; i.e., 36 days at 1007. Pay and allowance of officer H.M.S. Cairo for the above perio The report of the registrar so f is as follows: "The Cairo, so ascertained, after the collision s purpose for which she was statio and no evidence has been giver OF APP. or demur- oint tort- mages for ssel is of here is no value of Sure: the Sustained. pondents. principles, d upon in which the blish the cepted in , that an ssel being g collision without h he can ases cited Cairo for d men of Sol. 178. 4d. is material as can be filled the is, I think, necessary to go back to the ning principle laid down in such clear gage in The Argentino (1888, 59 L. T. Rep. at p. 917; 13 Prob. Div. 191, at p. 200; p. Mar. Law Cas. 348, at p. 351), and 9tly applied in The Valeria (128 L. T. Rep. The 922) A. C. 242; 16 Asp. Mar. Law Cas. 25). le there laid down was that the damages rable from a wrongdoer in cases of nat sea must be measured according ordinary principle of the common law. [CT. OF APP. of the tortfeasor's servants. Whatever damag are recoverable in such an action, and whatev circumstances can be taken into considerati in arriving at the damages to be awarded, a the same damages and the same circumstan as it would be permissible to award, or consider, had the collision taken place on la between vehicles belonging to the same cla of owners. In both instances the plaint must prove his case, and must within t accepted rules establish the claim for damag which he sets up. The present case is peculiar in this respe that the plaintiffs are the owners of a no profit-earning vessel. Until comparative recently the claim of such an owner was n recognised in the Admiralty Court. Th such a claim is now admissible is clearly esta lished by the decisions in The Greta Hol (77 L. T. Rep. 231; (1897) A. C. 596; 8 As Mar. Law Cas. 317), The Mediana (82 L. T. R 95; (1900) A. C. 113; 9 Asp. Mar. Law C 41), and The Marpessa (97 L. T. Rep. (1907) A. C. 241; 10 Asp. Mar. Law Cas. 46 Bargrave Deane, J., whose knowledge Admiralty practice was very extensive, dicates in his judgment in The Astrakhan (1 L. T. Rep. 539; (1910) P. 172; 11 Asp. M Law Cas. 390) that so far as his experien went that was the first time the rule laid do in these cases had been applied to the case a warship. I must refer later to those cases in which t question of the matters which it is legitima to take into consideration in assessing t damages in such a case are considered. Bef doing so I wish to clear out of the way a numb of decisions which have been referred to, a which, with respect to those who have thoug differently, have no real bearing on this ca These decisions divide themselves into t classes. The one class comprises cases wh the dispute has been between shipowners a underwriters, the question there dependi upon their respective rights and obligatio arising out of the contract into which th have entered. The other class comprises ca where the dispute has arisen between sh owner and joint tortfeasors, and where ow to the rule prevailing in Admiralty, the liabil of the two tortfeasors inter se has been co sidered. Instances of the first class are 7 Vancouver; Marine Insurance Co. v. Ch Transpacific Steamship Company (55 L. Rep. 491; (1886) 11 App. Cas. 573; 6 A Mar. Law Cas. 68), and The Ruabon Steams Company v. London Assurance Company L. T. Rep. 585; (1900) A. C. 6; 9 Asp. M Law Cas. 2). The instance of the seco class is The Haversham Grange (sup.). T Master of the Rolls, in the last-mentioned ca at p. 313 (93 L. T. Rep., at p. 737; 10 A Mar. Law Cas., at p. 160) plainly indica what the task before the court was when says: "A sum had to be done to ascerta |