INTRODUCTION

In an industrial society, some of the concerns that persist are labour and its management
problems, problematic interactions between employers and employees, and labour security.
Problems of labour security have confronted the administration since the very beginning of the
civilisation.Fichte was the first to make the claim that accidents, illnesses, and misfortunes are
the result of social environments. Once Kautilya affirmed, “The king (state) is obligated to
maintain the elderly, disabled, ill, defenceless, and orphans (bala). He will also cater for the
needs of pregnant, defenceless mothers as well as the children they give birth to.”1. Even the pre-
independence era saw a global narrative of labour security.

The Indian government realised in 1921 that although workmen's compensation laws were
universally understood, India was the only country among developed nations without such laws.
As a result, the Workmen's Compensation Act was made the same year. Realising the need, the
act was finally passed in 1923.

Doctrine of Notional Extension in India & UK

The word ‘Notional’ as per the Merriam Dictionary is defined as “theoretical, speculative
estimate and hypothetical and it’s an imaginary thing caused due to lack of perfection or no

evidence”.2 According to this notion, a fictional employment extension is a presumed or

fictional extension of an employee's working hours in order for the company to provide
temporary benefits under various regulations.

This doctrine applies mostly to four types of cases:-

i. cases of injury to workmen employed in workshops, factories or other such establishments;
ii. cases of injury to workmen employed in harbour or ships;
iii. cases of injury to workmen employed in transport services;
iv. cases of injury to workmen employed in mines.

1 Kautilya's Arthasastra 47 (7th ed. translated by Dr. R. Shamasastry 1961)

2 Tobacco Manufacturers Ltd. v. Marian Stewart, AIR 1950 Cal.164
Section 3(1) of the Workmen’s Compensation Act provides:-
If personal injury is caused to a workman 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.”3
There are three important component in the above section :-
i. personal injury
ii. arising out of employment
iii. in the course of employment

The judiciary has interpreted the above terms keeping the purpose and intent of the act in mind.
When a worker gets hurt while in the workplace and during business hours, it is simple to
conclude that the accident happened while the person was performing their duties in the course
of employment.

Even before the workmen's compensation Act was passed, the phrase "in the course of
employment" was the topic of debate in a number of instances. It was a highly debated term in
the context of the master's tort liability for the wrong done by his servants towards a third person.
Due to a kind of judicial decisions, the scope of the phrase ‘in the course of employment’ has
only increased with the passage of time in the subject of volenti non fit injuria. Despite the fact
that certain criteria have been developed to establish whether an act falls under the category of
employment or not, it has been recognised in the field of tort law that it is very difficult to define
the phrase "in the course of employment." As a result, it has been argued that the determination
of whether an act falls under the course of employment for a servant or not is a question of fact.
But the fact that the phrase ‘in the course of employment’ is present in both the laws is the sole
similarity. The enquiry in the workmen’s act is for the determination of employer’s liability
towards its worker and not a third person. So the decision makers have to keep a distinct policy
determinant because of differences in both the subjects.

In workmen’s compensation act, a "personal" injury that is compensable must both "arise out of
employment" and "in the course of employment," with the satisfaction of both prerequisites

3 St. Helens Collin+ery Co. v. Hewitson [1924] AC 59

being required. However, generally the courts have deliberated on one of the two conditions and
were content to ascertain the fulfilment or otherwise of the other left condition. Rarely have the
courts dwelled upon both the issues separately.

Course of Employment
The phrase “course of employment” is conceptualised to be three dimensional - time, place and
duty to perform. The tendency in judgements relating to workmen's compensation regulations
has only ever been to broaden the range of situations that are compensable.

Essentiality of ‘Duty’
In regard to the ‘duty’ there have been two sets of judicial decisions.
One is a strict view for the essentiality of ‘duty’. Like in the case of Tobacco Manufacturers
Ltd.4, Madras High Court quoting a passage from a case of Hewitson5 ruled that the employee
while going to work riding a bicycle and getting injured in the middle will not be considered to
be an injury during an accomplishment of a duty. The employer thus will not be liable to
compensate for the injury. This segment of decisions had a premise that duty is essential to bring
an activity under the “course of employment”.
The other is a liberal view with regard to the essentiality of ‘duty’. In the case of Parker v. Ship
Black Rock6, Lord Denning ruled , “ Even now, I'm surprised by those decisions and that the
House reached those conclusions. This notion that doing a duty is necessary is incorrect. It does
not follow the ruling in Armstrong, Whitworth & Co. v. Redford by the House of Lords itself.”.
The Lordship opined that a man can be said to be in a “course of employment”, even if he is not
performing a certain duty. This segment of judicial decision had a premise that duty is not
always an essential element to bring an activity under a “course of employment”.

On an initial perusal, it might seem like both of the aforementioned views are contradictory in
nature. But after a contemplation it is deduced that both the views essentially mean the same.
The proponents of the first view who maintain that duty is an essential requirement for being in
the course of employment, give a wider and liberal meaning to the word 'duty' and include within

4 Parker v. Ship Black Rock (Owners) , [1915] AC 715

5 Trustees, Port Bombay v. Yamunabai, AIR 1952 Bom. 382 at 383
6 Saurashtra Salt Manufacturing Company v. Bai Valu Raja [1978] II LLJ 249
the scope of duty even those cases which the proponents of the second view want to include in
the course of employment by maintaining that duty is not necessary.

Element of Time & Place

An accident is certainly under “course of employment”, if a workman sustains that injury during
the normal working hours at the place of employment. Bombay High Court in the case of
Yamunabai affirmed , “suggests the point of time; that is to say, the injury must be caused by an
accident taking place in the course of the employment;that is during the course of the
employment”7.
Problem arises when the workman receives an injury just before entering or departing from the
workplace but not exactly at the place or time of the work. The Doctrine of Notional extension
was evolved essentially to solve this problem.
As a general rule, a workman's employment does not officially begin until he arrives at his place
of employment and ends once he leaves, with the commute to and from that location excluded.8
But this is greatly subject to the doctrine of notional extension.

In the case of Varadharajulu Naidu v. M. Boyan, the division bench of Madras High Court ruled
that the workman, though received injuries before reaching the workplace, while he was on the
way in the lorry compulsorily provided by the employer, was in the course of employment.
So, in the instant case it was held that if a workman travels to the workplace by a transport
provided by the employer and there is no other alternative to the workman. In that circumstance,
the point he enters the transport, he is in “course of employment”.
When a worker has access to alternative forms of transportation in addition to the employer's
provided transportation and chooses to use either despite having no obligation or reason to do so,
he is not acting in the course of his employment when using that transportation to get from his
place of employment to his home.
In the Hewitson case (supra), the workman sustained an injury when he was travelling by the
train provided by the employer when going back to home. It was held by the House of Lords that
7 https://www.merriam-webster.com/dictionary/notional
8 Sharp v. Johnson & Co Ltd. [1905] 2 KB 139
the injury was sustained during the course of employment as there were other alternatives as well
for the workman.9
Although in the other case there was a different view by Justice Subba Rao wherein he ruled,
“The answer to the question of when an employment starts and ends depends on the specifics of
each instance. Nonetheless, the Courts have determined that an employee's employment is not
always terminated when the signal to "drop tool" is issued or when the worker exits the actual
workplace where he is working. As the entry and exit via time and space, there is a hypothetical
extension. The facts of a particular instance must always determine the extent of such an
extension.”10 This turned out to be a very contentious issue as the Supreme Court itself has ruled
that a “workman is not in the course of employment the moment he leaves his home and is on his
way to work .”11 The Supreme Court stated unequivocally and properly that while there may be a
slight extension of time and place, it must be a reasonable one.

In case an injury has occurred to a workman, working on ships, while he is travelling from quay
to the ship, will come under the course of employment.12

If a worker arrives at the place of his work before the scheduled start time, he is still in the
course of his employment as long as the time difference between those two times is reasonable.13

A factor of reasonability does come in when you apply this doctrine. The important element to
invoke the doctrine of notional extension is to have an implied duty or to prove a necessity
imposed by the employer, (eg. travelling by a certain vehicle or transport.) In any case the period
and place of the alleged act should not be unreasonably disconnected from the authorised period
and place of work.14

9 27. Street, The Law of Torts 439 (3rd ed. 1963).

10 Moore v. Manchester Liners, Limited, [1910] A.C. 498
11 Supra note (4)
12 B.E.S.T. Undertaking v. Agnes, (1963) II LLJ 615 at 620
13 Ibid
14 Lokesh Bagra, Workmen’s Compensation Act, 1923 : Theory of notional extension under the Employees
Compensation Act, iPleaders, (11th March 2023)
Workmen’s Compensation Act, 1923 : Theory of notional extension under the Employees Compensation Act -
iPleaders
Under Workmen’s Compensation Act no exemption is given for mere negligence or
carelessness15. The Act does not provide an exception for significant or willful wrongdoing, with
the exception of drunkenness and similar behaviours that are specifically mentioned in Section 3
of the Act. As a result, the two factors that determine whether an employer is liable are always
whether the accident "arose out of and in the course of the employment" and if the employee
added risk to his job without the employer's permission.16

Doctrine of Added Peril

The phrase "additional peril" refers to an action taken by the workers that was not covered by the
service agreement and that put them in danger. The employer will not be required to pay
damages if a worker engages in conduct during the course of employment that is beyond the
scope of his employment, involves excessive risk, and results in injury to the worker. The
Doctrine of Added Peril is a defence to the employer. This doctrine will not be applicable where
the workman was performing a task wherein no other alternative method was available to him.
The idea of notional extension is in conflict with the doctrine of added peril since notional
extension favours the employee while added peril benefits the employer.

UK and India, both being a common law country, have quite similar legislations and
interpretations drawn out of it, as discussed in detail above. If a worker in the UK sustains
injuries or passes away as a result of negligence or carelessness, their family or the worker
themselves may be entitled to compensation under the UK's worker compensation act. Accidents
can happen at work, and they often do so unexpectedly. One of the biggest reasons for such
accidents is carelessness.

15 Ibid
16 Ibid
Many laws have been enacted to safeguard workers in these dangerous, accident-prone places
while they are at work.17When such injuries occur, an attorney will evaluate the severity of the
harm in terms of lost wages and how they will be reimbursed in light of that.18

17 Stuti Bisht,DOCTRINE OF NOTIONAL EXTENSION THEORY WITH REFERENCE TO CASE LAWS,

Brillopedia, (10th March 2023)
DOCTRINE OF NOTIONAL EXTENSION THEORY WITH REFERENCE TO CASE LAWS (brillopedia.net)
18 Section 3(1), The Workmen’s Compensation Act,1923, No.8, Acts of Parliament,1923