Report No. 62
3.31. Test of obligation to use transport previously adopted in English cases.-
We are now concerned with, the first of, the exceptions mentioned above namely time spent in transport provided by the employer. According to the case law under the (English) Workmen's Compensation Act of 1925, the time spent in transport provided by or on behalf of the employer, was regarded as an exception and must be included in the period of employment, if there was an express or implied obligation on the workman to use the transport so provided.1 Under the English Act2 of 1946 relating to national insurance, however, no obligation to use the transport is required in order that the accident be deemed to have arisen out of and in course of the employment.
1. Saint Helena Colliory Co. v. Hewitson, 1924 AC 59 (HL).
2. Section 9, National Insurance (Industrial Injuries) Act, 1946.
3.31A. Test of permission later substituted by Statute in 1946.-
Thus the statutory provision in the English Act1 of 1946 which has been adopted in the Employees' State Insurance Act, 1948, section 51C, enlarges the scope of the exception recognised by judicial interpretation of the Workmen's Compensation Act by removing the requirement of obligation to use the transport. Instead it is now provided that the workman must be travelling as a passenger by the particular vehicle to or from his place of work with the express or implied permission of the employer. Need for an obligation is expressly ruled out.
But certain other conditions have to be satisfied.2 We are in favour of adopting the principle of the provision in section 51C. Hence again the drafting could be simplified,3 and the first requirement4 that the accident must be such that it would have been deemed to have arisen if the employer had been under an obligation to provide the transport, can be omitted, as merely repeating what is already required by the ingredient indicated by the words "out of and in the course of the employment".
1. Section 9, National Insurance (Industrial Injuries) Act, 1946.
2. These have been set out above, para. 3.29, supra.
3. Compare discussion as to section 51B of the Act of 1948.
4. Para. 3.29, supra.
3.32. The second requirement1 namely that at the time of the accident, the vehicle was being operated by or on behalf of the employer etc., and was not being operated in the ordinary course of public transport service, raises a question of policy. On the one hand, it can be argued that such accident as arise while the workman uses a public transport system or transport not provided by the employer, are not hazards created by the employer but are hazards which the workman has to face, though in a sense for the purpose of the employment. It can be argued that this hazard is common to the particular workman and to persons who are not workman within the Act. On the other hand, it can be argued that it is not proper that an injury suffered in furtherance of the employment should escape the protection given by the Act.
1 . Para. 3.29, supra.
3.32A. Position of the Continent as to injuries on way to work.-
In this connection it would be of interest to compare the position prevailing in some of the legal systems on the Continent. There is a great deal of diversity among the six legal systems on the Continent-Belgium, France, Germany, Italy, Luxemberg and Netherlands-on the subject of workmen's compensation rules in respect of accidents occuring outside the employer's premises while the workman is on his way to or from work. In Italy and the Netherlands for example, there are no statutory provisions at all on the subject. But while the courts in Netherlands have by judicial interpretation extended the concept of "employment-related accident" to include accidents occuring on the way between an employee's residence and his place of employment, the Italian courts have found it impossible to adopt such a liberal view1.
In Netherlands however, the legislation of 1967 abolished the traditional distinction between industrial and ordinary accidents. All accidents, from whatever cause, whether or not employment-related, are now subject to the same rules in Netherlands. Consequently, the problem of way-to-work accidents has become academic in the Netherlands2 Germany has covered trips made for the purpose of keeping work-relates medical appointments. France and Belgium are more liberal since they cover trips between the place of work and the place where the employee takes his meals3.
In this connection, attention may be drawn to the fact that the International Labour Organisation in 1964 adopted a convention calling for compensation of way-to-work accidents. A recommendation adopted at the same time (1964 defines more explicitly the kind of trips which are to be covered under workmen's compensation systems. They include trips between the place of work and (1) the employee's permanent or temporary residence; (2) the place where the employee takes his meals; and (3) the place where the employee ordinarily receive his salary. The exact recommendation is as follows4:-
"5. Each Member should, under prescribed conditions treat the following as industrial accidents:
(a) accidents, regardless of their cause, sustained during working hours at or near the place of work or at any place where the worker would not have been except for his employment;
(b) accidents sustained within reasonable periods before and after working hours in connection with transporting, cleaning, preparing, securing, conserving, storing and packing work tools or clothes;
(c) accidents sustained while on the direct way between the place of work and
(i) the employees' principal or secondary residence; or
(ii) the place where the employee usually takes his meals; or
(iii) the place where he usually receives the remuneration."
1. I.P.O. Conventions (1919-1966), p. 1094, Convention of 1964 on Employment injuries, Recommendation No. 121.
2. Book Review in (Winter 1972) American Journal, Comparative Law, 164, 165 (Review of Christian Fabry, "Les Accidents De Traijet").
3. Book Review in (Winter 1972) American Journal, Comparative Law, 164, 165.
4. Book Review in (Winter 1972) American Journal, Comparative Law, 164, 165.
3.33. Having carefully considered all aspects of the matter, we are of the view that section 51C of the Employee's State Insurance Act should be adopted with modification that it should not be necessary that the transport is provided by the employer, if the workman is travelling directly to or from the place of employment.