NAME: Bernard Shuvam Gomes

COURSE – B.A, L.L.B (HONS)

SEMESTER – 6

SECTION – A

SUBJECT – LABOUR LAW – II (LAW321)

TOPIC – Doctrine of Notional Extension under Employees Compensation

Act, 1923 and Its Applicability in Law of Torts

SUBMITTED TO – Ms Koyel Roy

DATED – 27th February, 2019

1|Page
 ACKNOWLEDGEMENT

We are highly indebted to Amity Institute of Law for their guidance and constant supervision
as well as for providing necessary information regarding the project and also for their support
in completing the project.

We would like to express our gratitude towards our respective parents and Miss Koyel Roy
maam for their kind co-operation and encouragement which helped us in the completion of
this project.

We would like to express our special gratitude and thanks to industry persons for giving us
such attention and time.

Our thanks and appreciations also go to the group members who have helped each other in all
possible ways in developing the project and people who have willingly helped us out with
their abilities.

2|Page
 CONTENTS

S.No TOPIC Pg.No

1) ABSTRACT 4

2) INTRODUCTION 5

3) LEGAL OBLIGATION ON EMPLOYER

TO PAY COMPENATION 6

4) DOCTRINE OF NOTIONAL EXTENSION 10

5) APPLICABILITY OF THE DOCTRINE

IN LAW OF TORTS 14

6) CONCLUSION 16

7) BIBLIOGRAPHY 17

3|Page
 ABSTRACT

This project deals with the Doctrine of Notional Extension under the Employees
Compensation Act, 1923 and its applicability in the Law of Torts or its relationship with the
notion of Vicarious Liability as given under the Law of Torts. We first introduce the
Employees Compensation Act, 1923 in this project. The starting point of discussion in this
project is the legal obligation which is there on the Employer to pay compensation. We then
discuss the concepts of ‘Personal Injury arising due to accident’ and ‘Arising in and out of
employment’.

We then shift our focus as to what the Doctrine of Notional Extension means and various
case laws which talks about the same. We then throw some light on the topics of
‘interpretation of the term duty’, ‘expanding the preview of service contract’, ‘public place
and this doctrine’ and applicability of this doctrine in regard of social cause. We end this
project with the discussion regarding the applicability of this doctrine in the Law of Torts or
its relationship with the broad topic of vicarious liability.

Keywords

1) Employment
2) Personal Injury
3) Accident
4) Service Contract
5) Duty
6) Vicarious Liability
7) Respondeat Superior
8) facit per alium facit per se

4|Page
 INTRODUCTION

The Employees’ Compensation Act, 1923 is an old but an important enactment, as it

introduced a kind of social security scheme for the employees of this country. It enables an
employee, and in case of death of an employee, his dependents, to get, at the cost of his
employer compensation for employment injury.

Much later, in 1948, the Employees’ State Insurance Act introduced a social insurance
scheme for the employees of his country. Unlike the earlier scheme this scheme rests on joint
contribution by Government, employers and employees. The two enactments together
constituted what may be called a Code of social security benefits for the workers of this
country.

Objectives

The Object of the Act is to provide for the payment of compensation by certain employers to
their employees for injury caused to them by accident while in employment. If an employee
contracts an occupational disease while in employment, it is also treated under the Act as
injury caused by accident.

Applicability

In case of Maharashtra, The Employees’ Compensation Act is applicable to all shops &
Establishments by virtue of Sec. 38-A of The Bombay Shops & Establishments.

Sec. 16 of the Apprentices Act extends the application of the Employees’ Compensation Act
to the Apprentices appointed under Apprentices Act, 1961 rendering the employers liable to
pay compensation for any personal injury or accident arising out of and in the course of
employment caused to the apprentices.1

1
http://aiftponline.org/journal/2016/june-2016/the-employees-compensation-act-1923-old-name-the-workmens-
compensation-act-1923 (last visited on 24/02/2018)

5|Page
 LEGAL OBLIGATION ON EMPLOYER TO PAY COMPENATION

An employer is liable to pay compensation to an employee under section 3(1) of the

Employees Compensation Act, 1923. It says that:-

(1) If personal injury is caused to an employee by accident arising out of and in the
course of his employment, his employer shall be liable to pay compensation in
accordance with the provisions of this chapter. Provided that the employer shall not be
liable
(a) In respect of any injury which does not result in the total or partial disablement of
the employee for a period exceeding three days
(b) In respect of any injury not resulting in death or permanent total disablement
caused by an accident which is directly attributable to
(i) The employee having been at the time thereof under the influence of
drinks or drugs, or
(ii) The willful disobedience of the employee to an order expressly given, or to
a rule expressly framed for the purpose of securing the safety of
employees, or
(iii) The willful removal or disregard by the employee of any safety guard or
other device which he knew to have been provided for the purpose of
securing the safety of employee

There are two components in the definition which are:-

(i) Personal injury caused due to accident

(ii) Arising out of and in the course of employment2

Personal injury due to accident

An employer is liable to pay compensation to an employee if personal injury is caused to him

by accident arising out of and in the course of his employment. The word ‘injury’ means
damage done to an employee by some accident. Personal injury is not necessarily confined to
physical or mental injury. It also includes psychological and physiological injury which was

2
Labour and Industrial Laws by S.N. Misra

6|Page
mentioned in the case of Yates v. South Kirby Collieries3. Thus nervous shock causing
incapacity to work is as much a personal injury as a broken limb.

In Indian News Chronicle Ltd v. Mrs. Lazarus 4 an employee in course of his duties had to
frequently go to a heating room and from there to a cooling room. One night when he went to
the cooling room he felt sick and he was sent home. He got pneumonia and because of which
he died. It was held that the death was due to personal injury.

The word ‘accident’ means some unpredicted event which is not expected or designed by the
injured employee himself even though there may be negligence on his part. In Grime v.
Fletcher5 is was held that if a person becomes insane as a result of an accident and then
commits suicide, the death is the result of the accident and the compensation is awarded. But
in Withers v. L.B. & S.C. Rail6 it was held that where insanity is not the direct result of
accident, compensation is not awarded.

Arising out of and in course of employment

The employer is liable to pay compensation only if personal injury is caused to an employee
by an accident arising out of and in course of his employment.

Test for determining whether an accident arose out of employment

In Simpson v. Sinclair a workman was injured because of a wall that fell on him but which
had no connection with his employment. But this wall fall resulted into a fall of a shed where
he was working. Lord Shaw observed that “arising out” of is not limited to the nature of the
employment but applies to the employment as such, to its nature, its condition, its obligation
and its incidents. If because of these a workmen is exposed to special danger than that can be
brought under the preview of “arising out of employment”. In this case the court gave a wider
meaning of the term test of nature employment.

Casual Connection between employment and accident test

3
(1910) 2 K.B. 538
4
(1951-52), 3 F.J.R. 190.
5
(1915) I K.B. 734
6
(1916) 2 K.B. 772

7|Page
There should be a casual connection between the work and the accident which is explained in
Charles R. Davidson v. M. Robb7. Lord Dunedin said that the term “in the course of” further
explains the term “arising out of”. It is difficult to visualize that there can be any accident
which is arising out of employment but is not in the course of employment. The workmen
should be doing something as part of his service and it is not important that he has to do
actual work but something connected to the work. Lord Haldane said that there is a need to
show casual relation between the work and an order, express or implied by the employer. The
employment is the cause and accident is the effect. In Mackinnon Mackenzie and Co. (P) Ltd.
v. Ibrahim Mahmmed Issak8 court has supported the above judgment and said that there
should be ‘’casual connection’ and only ‘nature of employment’ is not a judging factor.
Justice V. Ramaswami explained the meaning and said that “the words “in the course of the
employment” mean “in the course of the work which the workman is employed to do and
which is incidental to it.”

The words “arising out of employment” means that during the course of the employment, if
any injury takes place because of some risk incidental to the duties of the service, when,
unless engaged in the duty owing to the master, it is reasonable to believe the workman
would not otherwise have suffered.

Following the above judgment in State of Rajasthan v. Ram Prasad9 the Supreme Court said
that the accident must have a casual connection with employment and should arise out of it. It
was also said that even if the workman has died because of natural forces he is entitled get
compensation showing that his employment exposed him to such hazard.

Indirect Connection is Sufficient:

Court included indirect connection between employment and injury within the meaning of
this term which makes this phrase wider. In this matter Bombay High Court says that “arising
out of employment” suggests the point of time means during the time of employment and
place. It also says that there should be connection between the employment and the injury but
it is not necessary that there has to a direct connection. In Public Works Department v. Smt.
Kausa, Justice P.R Sharma observe that the term “arising out of employment” has been given

7
(1918) A.C. 304
8
AIR 1970 Goa 127
9
(2001) 1 LLJ 177 (SC)

8|Page
a wider meaning and can cover a situation where there is no direct connection between injury
caused by an accident and the employment.

Test to detect “arising out of employment”

In Ravuri Kotayya v. Dasari Nagavardhanamma10 the Andhra Pradesh High Court has laid
down the test by which is accident has arisen out of and in the course of employment can be
established.

The workman was employed on or performing the duties at the time of accident. The accident
occurred at or about the place where he was performing these duties or where the
performance of the duties required him to be present. The immediate act which led to or
resulted in the accident has some form of casual relation with the performance of these duties,
and such casual connection could be held to exist if the immediate act which led to the
accident is not so remote from the sphere of his duties or the performance thereof, as to be
regarded as something foreign to them.

DOCTRINE OF NOTIONAL EXTENSION

10
A.I.R. 1962 A. P. 42

9|Page
There is no problem in detecting that an accident has occurred in the course of employment
when it is clear that the employee is injured in the working premises and in the working hours
and while performance of his duty. But the confusion arises when these elements do not
coincide together and the employee is injured just near the work premises or just before
joining the work or in the way to the work. Therefore to address this kind of situation and to
give some kind of relief to the employee, the doctrine of Notional Extension evolved.

The theory of Notional Extension was laid down by the Supreme Court in Saurashtra Mfg.
Co. v. Bai Valu Raja11, it was observed that “As a rule, the employment of an employee does
not commence until he has reached the place of employment and does not continue when he
has left the place of employment: the journey to and from the place of work is thus excluded
from the notion of employment. However, it is now well settled that this is subject to the
theory of notional extension of the employer’s premises, so as to include in it an area which
the employee passes and repasses in going to and in leaving the place of work, so that there
may be some reasonable extension in both time and place of work and an employee may be
regarded as in the course of his employment even though he had not reached or had deft the
actual premises where he was employed. The facts and circumstances of each case will have
to be examined carefully in order to determine whether the accident arose out of and in the
course of employment of an employee, keeping in view at all times this theory of notional
extension.”

According to this theory, in certain circumstances, an employer is liable for injury to his
employee even when the employee is away from the premises at the time of accident.

Important cases for arising out of and in the course of employment are:

1. In Works Manager, Carriage & Wagon Shop v. Mahabir 12, a railway employee was
ordered to travel to a certain station to repair a water main. When he had finished the
work and was crossing the platform to catch the train, he slipped and died as result.
Held, the death arose out of and in the course of employment.
2. In Bhayabhai v. Central Rail13, an employee whose business was to repair railway
clocks at various stations was stabbed in a railway compartment while he was in

11
AIR (1958) SC 881
12
(1954-55) 7 F.J.R. 354
13
AIR (1955) Bom. 105

10 | P a g e
 transit. Held, the death was due to an accident arising in the course of and out of his
employment.
3. In National Iron & Steel Co. v. Manorama Dassi14, a boy returning to the factory
canteen after having served tea in his usual round to certain persons in the factory
premises was struck by a bullet and he died the following day. Held, the death of the
boy was due to an accident arising out of and in the course of his employment.

The scope and applicability of this doctrine has been laid down by the judiciary under
different circumstances which are as follows:-

Interpretation of the term “duty”

In Weaver v. Tredegar Iron and Coal Co. Ltd15, House of Lords after examining a large
number of authorities gave a wider meaning of the term “duty”. In this case lord Atkin said
that there can be no doubt that the course of employment cannot be limited to the time or
place of the specific work which the workman is employed to do. It does not necessarily end
when the “‘down tools” signal is given, or when the actual workshop where he is working is
left. In other words, the employment may run on its course by its own momentum beyond the
actual stopping place. There may be some reasonable extension in both time and space. Lord
Porter further said that if an accident occurs while coming to the workplace or leaving the
place can be out of and in the course of employment if he is bound by the way he proceed
under the terms of the contract of service express or implied. Here the duty test was
confirmed.

Expanding the preview of Service Contract

In St. Helens Colliery Co Ltd v. Hewitson16, the court said that the injury did not occur in the
course of employment because the employee was not bound or obliged to travel by that
special train and he could have taken other transport. If he were bound by the service contract
to travel by that train then it would have been in the course of employment (Lord
Buckmaster). It was also added that if the place of work is like that there is no alternative
means of transport other than the transport given by the employer then it can be concluded
that there is an implied term in the service contract to use that transport (Lord Atkinson).

14
AIR (1953) Cal. 143
15
(1940) 3 All. E.R. 157.
16
(1924) A.C. 59.

11 | P a g e
The same view was taken in Mackinnon Mackenzie & Co. Pvt. Ltd. v. Ibrahim Mahommed
Issak17, which says that a workman in a colliery is not in course of his employment while
using the transport of the employer if he is not bound by the terms of the contract to travel by
that transport.

In Union of India v. Smt. Noor Jahan18, a railway gangman was ordered by his employer to
go to another place for cleaning and in the way from one place to another accident happened.
Justice Sukla observed that the accident has occurred in the duty hour and when he was going
to do his duty on behalf of his employer and he concluded that the accident has occurred in
the course of his employment.

Public Place and this Doctrine

There are some situations where this doctrine does not apply. For example:- When an
employee is on the public road or public place and is not there for fulfilling the obligation
and also his work does not make it necessary to be there then the proximity of the work
premises and spot of accident become immaterial. The notional extension of the place of
work cease in such a situation. There were some clarification made regarding this matter in
the case of Saurashtra Salt Manufacturing Co. v. Bai Valu Raja 19, Justice Jafer Imam said
that when a workman is on a public road or a public place or on a public transport he is there
as any other member of the public and is not there in the course of his employment unless the
very nature of his employment makes it necessary for him to be there. A workman is not in
the course of his employment from the moment he leaves his home and is on his way to his
work. He certainly is in the course of his employment if he reaches the place of work or a
point or an area which comes within the theory of notional extension, outside of which the
employer is not liable to pay compensation for any accident happening to him.

Applicability of the doctrine in connection with social cause

The judiciary took more liberate stand in expanding the definition of notional extension
realizing the social view point and objective of the act in the case of The Superintending
Engineer, Tamil Nadu State Electricity Board & Another v. Tmt. Sankupathy 20, where the
employee employed under the appellant died on the way towards his workplace because of

17
1970 AIR 1906, 1970 SCR (1) 869.
18
1987 S.C. 1192.
19
(1958) S.C. 881.
20
(2005) I LLJ 763.

12 | P a g e
communal riot. It was argued by the appellant that the person died before the commencement
of his work and outside the work place and there is no connection between the accident and
the employment. The High Court of Madras has negated all this argument and allowed the
compensation stating that “Since the Act is a welfare legislation, it is expected that the
provisions would receive liberal interpretation so as to advance the object and purpose of the
Act.” The court also observe that “in the course of employment” talks about the point of time
and place of accident and “out of employment” talks about a casual connection between the
accident and the employment and which according to the court is very narrow interpretation
giving the modern industrial set up. So doctrine of notional extension should be used and
even if the workman did not reach the place of work the workmen should get compensation
for accident.

APPLICABILITY OF THE DOCTRINE OF NOTIONAL EXTENSION

IN LAW OF TORTS
Vicarious Liability

13 | P a g e
Generally, a person is liable for his own wrongful acts and one does not incur any liability for
the acts done by others. In certain cases, however, vicarious liability, that is the liability of
one person for the act done by another person, may arise. The common examples of such a
liability are as follows: -

1) Liability of the principal for the tort of his agent;

2) Liability of partners of each other’s tort;
3) Liability of the master for the tort of his servant.

In the case of a master – servant relationship, the master is vicariously liable for the wrongful
act done by his servant in the course of employment. The liability of the master, of course, is
in addition to that of the servant.

“The doctrine of liability of the master for the act of his servant is based on the maxim
respondeat superior, which means ‘let the principal be liable’ and it puts the master in the
same position as if he had done the act himself. It also derives validity from the maxim qui
facit per alium facit per se, which means “he who does an act through another is deemed in
law to do it himself.”21

Since for the wrong done by the servant, the master can also be made liable vicariously, the
plaintiff has a choice to bring an action against either or both of them. Their liability is joint
and several as they are considered to be joint tortfeasors. The reason for the maxim
respondeat superior (let the principle be liable) seems to be the better position of the master
to meet the claim because of his larger pocket and also ability to pass on the burden of
liability through insurance. The liability arises even though the servant acted against the
express instructions, and for no benefit of his master.22

Doctrine of Notional Extension and Vicarious Liability

21
Baxi Amrik Singh v. The Union of India, (1973) 75 P.L.R.
22
Limpus v. London General Omnibus Co., (1862) 1 H. & C. 525

14 | P a g e
As we know the Doctrine of Notional Extension means that an employer is liable to pay
compensation if a personal injury is caused to an employee by accident arising out of and in
course of his employment. The three tests for the same are as follows:-

1) There should be an accident.

2) The accident should be arising out of and in the course of employment.
3) The accident should result in disability, whether temporary or permanent; partial or
total; or death.23

By comparing the above two notions we can very well see that in both the cases the person
embodying someone for certain kind of work is held liable for the actions of the person so
embodied. In the case of an employer - employee relationship, in the doctrine of notional
extension, we can see that when the employee acts in the course of his employment and an
injury occurs to him, which arises out of and in the course of his employment then the
employer is held liable and he is made to pay the compensation.

Similarly in the case of a master servant relationship it can be very well seen that the master
is held liable for any wrongful act committed by the servant in the course of his employment.
Under the notion of Vicarious Liability, when a servant commits any wrongful act during the
course of his employment, not only the servant but also the master is held liable for the same.

There are two major points of difference which is evident between an employer – employee
relationship under the doctrine of Notional Extension and a master – servant relationship
under the topic of Vicarious Liability. Firstly, in the case of a master – servant relationship
under the topic of Vicarious Liability is that for any wrongful act committed by the servant,
in the course of his employment, not only the master but the servant himself is also held
liable for the particular act. Whereas, in the case of an employer – employee relationship
under the Doctrine of Notional Extension, when the employee acts in the course of his
employment and an injury occurs to him, arising out of and in the course of his employment,
only the employer is held liable to pay the compensation. The second point of difference
between the two is that, under the Doctrine of Notional Extension, the employer is held liable
only when an injury arises to an employee, arising out of and in the course of his
employment. Whereas, in the case of Vicarious Liability, the master is held liable for any
wrongful act of his servant, in the course of that servant’s employment and it need not result
into any kind of injury of the servant.

CONCLUSION
23
https://www.linkedin.com/pulse/employee-compensation-act-doctrine-notional-extension-prof-mishra

15 | P a g e
The term “arising out of” has been subjected to judicial interpretation from the very
beginning and in most of the times it has been seen that the court has tried to give a wider
meaning to it. This phrase has most of the time coupled with the term “arising out of
employment”. Even though the meaning of these two phrases is different then also there is an
inseparable connection between them. Previously it was thought that arising “in the course” is
a big circle and “out of” is a small circle within it. But the new notion is that these two
phrases are different circle which intersect somewhere.

These two criteria’s are needed to be fulfilled to get compensation. These two phrases are
conjunctive under the Employees Compensation Act 1923. If these terms have been
disjunctive then a large area could have been covered and more number of employees could
have been benefited and fulfilled more efficiently, the objective of the act as it would have
been sufficient to prove only one condition. Even thought the judiciary has come up with the
concept of notional extension which essentially widens the scope of the terms and cover the
areas which are not conventionally considered under these terms. This doctrine appears to be
very helpful for the employees to get facilities given under this Act

BIBLIOGRAPHY

16 | P a g e
PRIMARY SOURCES: -

1) The Employees Compensation Act, 1923

2) Labour and Industrial Laws by S.N. Misra
3) Law of Torts by Dr. R.K. Bangia

SECONDARY SOURCES: -

1) https://indiankanoon.org/doc/1152781
2) https://www.scconline.com
3) http://www.sclt.in/judgements
4) http://aiftponline.org/journal/2016/june-2016/the-employees-
compensation-act-1923-old-name-the-workmens-compensation-act-1923
5) http://www.advocatekhoj.com/library/bareacts/
6) https://legaldictionary.net/vicarious-liability/

17 | P a g e