Report No. 62
3.36. Decision under the English Workmen's Compensation Act as to emergency.-
No such section was contained in the (English) Workmen's Compensation Act but, in cases arising under these Acts, a workman was not treated as acting beyond the sphere of his employment and on his employer's work, if he voluntarily did in an emergency, an act in the interests of his employer outside the scope of his ordinary employment. Courts in England held, under the Workmen's Compensation Act, that where the workman departs from the scope of his duties in an emergency, the accident may be held to arise out of the employment. Thus where an unskilled labourer assisted a machinist in a difficulty and suffered injury, he was held to be covered1. "An emergency is something which occurs unexpectedly. It does not necessarily mean an occurrence giving rise to greater danger2."
1. London and Edinborough Shipping Co. v. Brown, (1905) 7 F 488 (Scottish Court of Session).
2. Deromody v. Higgs & Hill Ltd., (1937) 4 All ER 379.
3.36A. Provision as to emergency desirable.-
It appears to us that an express provision as to emergencies, as in section 51D, E.S.I. Act1, could be usefully added to the Workmen's Compensation Act also. We do not however consider necessary the requirement as to trade. Subject to this modification we recommend an adoption of this section though in a simplified form.
1. Para. 3.35A, supra.
3.38. In the light of the above discussion we recommend the insertion1 of the following new provisions2:-
"3. (1A) For the purposes of this Act, an accident arising in the course of a workman's employment shall be presumed, until the contrary is proved, also to have arisen out of that employment.
(Compare section 51A, E.S.I. Act, 1948)
3. (1B) An accident shall be deemed to arise out of and in the course of a workman's employment notwithstanding that he is at the time of the accident acting in contravention of the provisions of any law applicable to him or of any orders given by or on behalf of his employer, or that he is acting without instructions from his employer, or in disregard of any safety guard or other device provided for the purpose of securing the safety of workmen, if the accident would "have been deemed so to have arisen had the act not been done in contravention of the provision as aforesaid or without instructions from the employer or in disregard of a safety guard or other device as aforesaid, as the case may be.
(Compare section 51B, E.S.I. Act, 1948).
3. (1C) An accident occurring while a workman is, with the express or implied permission of his employer, travelling as a passenger by any vehicle directly to or from his place of work shall, notwithstanding that he is under no obligation to his employer to travel by that vehicle be deemed to arise out of and in the course of his employment whether at the time of the accident the vehicle was being operated by or on behalf of his employer or by any other person.
Explanation.-In this sub-section, "vehicle" Includes a vessel and an aircraft.
(Compare section 51C, E.S.I. Act, 1948)
3. (1D) Where an accident occurs to a workman in or about any premises at which he is for the time being employed, it shall be deemed to arise out of and in the course of his employment if it occurs while he is taking steps on an actual or supposed emergency at those premises
(a) to rescue, succour or protect persons who are injured or imperilled or who, it is thought, might possibly be injured or imperilled, or
(b) to avert or minimise serious damage to property."
(Compare section 51D, E.S.I. Act, 1948)
This finishes the new provisions to be introduced and we shall resume our consideration of points concerning section 3.
1. These could be inserted in section 3 as sub-sections.
2. Section 3(1)(b), provisos (ii) and (iii) to be deleted.
3.38A. Sections 3(2) to 3(4).- Sections 3(2) to 3(4) will be discussed later1.
1. Para. 3.47, et seq, infra.