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This article has been written by Shloka Shailesh Rasal.


The term ‘arising during the course and out of employment is prescribed under Section 3 of the Workmen’s Compensation Act, 1923 prima facie indicating the employer’s liability when the workman’s employment is the proximate cause of his injury. It won’t be a predicament to detect whether the injury occurred while the workman is discharging his duty in the working hour.[1] However, when a workman is injured near the work premise or just prior to joining work or on the way of joining work impediment ascends as the components do not coincide together. To address this issue and grant relief to the workmen the Courts have adopted application of Doctrine of Notional Extension widening the scope of ‘employment’ wherein the place of injury has to be inferred as the place of duty albeit of not reaching the actual workplace. [2] Moreover, if the accident occurred attributable to the risk incident to the employment the claim for compensation must succeed regardless his individual imprudent act per se exposed him to an added peril. [3]

Despite the establishment of the underlined doctrine, a substantial number of workers are denied protection by workers compensation after classifying them as ‘independent contractors’ in order to deviate from the legally mandated benefits.[4] Although the statute claims to compensate occupational diseases, very few claims are triumphant owing to myriad factors. Such cumbersome regulations prove futile while granting compensation to the workmen discharging their assigned duties.[5] This paper canvasses the exceptions to the general rule of Section 3 of the Act whilst apprehending the nexus between ‘arising out of employment’ and ‘during the course of the employment’ by comparing it to the application of the Doctrine in UK via judicial interpretation.

Judicial interpretation of Section 3(1) of the Workmen Compensation Act, 1923

Section 3(1) of the Workmen Compensation Act, 1923 prescribes that if the workman is affected by personal injury ensued by accident arising out of and in the course of his employment, the employer shall be held liable to compensate him or his legal representative as per provision of Chapter II.  Accidents arising out of and in the course of his employment and Personal injury are the three ostensible components of this definition. In the nineteenth century, the definition “scope of employment” was substituted by “in the course of employment” denoting the risk incidental to the workman’s duty of rendering service owing to the master, compelling it to be reasonable to believe that the workman wouldn’t otherwise suffer an injury.[6] 

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Personal injury

The term Personal injury has not been defined under this Act. However, the term ‘Employment Injury’ has been defined under Section 2(8) of The Employees State Insurance Act, 1948 envisaging a personal injury caused by an accident or an occupational disease ascended during or in the course of employment.[7] The burden of proof lies on the employee to corroborate that the accident was incidental to his employment. [8] Section 3 of Workmen Compensation Act, 1923 postulates:

i) The workman must sustain a personal injury;

ii) Personal injury must be caused due to an accident;

iii) Accident must arise during or in the course of employment;

iv) The workman must be totally or partially disabled for not more than a period of three days or must have died resulting from the personal injury.

This definition broadened the scope of the term ‘personal injury’ to encompass all physical injuries perpetrated during the course of employment. Albeit, the employer will be liable if his employee suffers psychological diseases, mental stress, mental illness and strains stem from the employment. Therefore, a death from nervous shock inflicted due to an excitement and alarm and a heart stroke was held to be a personal injury entitling the dependents to compensation. [9]


Pursuant to legal liabilities, Lord Lindley avowed that the term ‘accident’ comprises any unexpected or unintended event that results in hurt or loss. The judiciary must interpret the term accident to denote the cause and effect without discriminating between the two. The General case of an accident is due to an external event. Failure of muscular action of heart, exertion causing apoplexy or neurasthenia, the strain causing rupture are a few less obvious cases of an accident where Lord Atkin termed them as ‘internal accidents’. In such cases, it is impossible to distinguish between ‘accident’ and ‘injury’ thus in such cases ‘injury’ and ‘accidents’ coincide. The essential principles to determine the injury inter alia to be an accident are:

  1. There must be a causal nexus between the accident, injury and the work done in the course of employment.
  2. The onus lies on the employee to prove that the work he was engaged in resulted in the strain which aggravated the injury.
  3. The evidence brought on record cannot be a subject matter of conjecture or surmise.

Therefore, death may result from an accident but the occurrence of the accident must be proved. Just because death took place in the course of employment would not amount to the accident as there is no assumption that an accident occurred. Thus, the term ‘accident’ is an untoward mishap that is unexpected or undersigned. [10]

Arising out of and in the course of employment

The term ‘in the course of employment’ connotes the term ‘in the course of employment wherein the workman’s employment is incidental to the accident.’ The application of this term is not confined to the mere nature of employment rather applies to its incident, condition, nature, obligation. Contemplating the above factors, if the workman is within the zone of danger the injury would be said to arise out of employment to which the claim must succeed unless the workman by his own prudent act was exposed to an added peril. It is a well settled law the term ‘duty’ is not confined to the period of time the workman commences his work and downs his tools.[11] 

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If the workman leaves his house and subsequently is found in a public place, public transport or on a public road unless in the nature of his employment he is not in the course of employment. Even though a worker has not arrived at or departed his workplace, he can be perceived to have been in the course of his employment if he has a rational extension of both time and place.

Every case’s facts and circumstances would have to be scrutinised extensively for determining whether the accident occurred as a result of and during the employment of a worker, especially considering the principle of notional extension at all times.[12] It may be pointed out that if an employee is obliged to travel by a specific means of transport for reaching or while leaving the premises albeit not being a legal obligation. But if the circumstances induce the workman to adopt those means it would resonate with the period to include in the course of employment. Furthermore, pursuant to occupational disease like silicosis, employees engaged in serving silk extracting processes are exposed to an atmosphere that would cause certain diseases known as occupational diseases. However, the employer will not be liable:[13] 

a) Wilful disobedience of explicit orders given or framed of the employee,

b) Wilful removal of safety guard or any device provided for securing the employee from harmful danger.

Doctrine of vicarious liability in the United Kingdom: judicial interpretation

Under English law of torts, doctrine of vicarious liability holds employers strictly liable for the wrongdoings of their employees.  If an employee performs any act during the course of his employment, damaging the third party, then the employer will be held vicariously liable for the act of his employee. A tripartite test helps determining vicarious liability:

  1. An offence or a tort is committed by an employee,
  2. A tort is committed, and
  3. An offence or tort is committed during or in the course of employment. 

This test differentiates between contract of service and contract for service. A contract of service is between an employer and employee or an independent contractor. In the case of Market Investigations Ltd v Minister of Social Security[14], the court opined that when an individual is in the business on his own account it leads to contract of services, the factors determined are chance of profit and risk of loss. Bramwell LJ connoted a servant is subjected to the orders of his master as to the manner of work to be done.

The difference contemplates the amount of control the employer has on his employee. If injury occurs and the employer is deemed to be in a position of sufficient control, the courts will usually hold the employer vicariously liable as the causal link between the employer and employees engaged services. ‘Mutuality of obligation’ to enter into the contracts must be considered to hold the employer liable.

The control test was primarily established in the case of Honeywill v Larkin[15]  wherein Slesser LJ stated that the employer will not be held liable for the acts of independent contractors in the way he would be liable for the acts of his employees or agents, albeit acts being performed during the course of employment for the benefit of the employer. 

Dennig LJ proposed a test to determine an individual as an independent contractor or an employee:

  1. Whether the employer imposes a level of control on the individual to make the former his master?
  2. Whether the individual in consideration of his remuneration delivered personal services?
  3. Whether the terms and conditions of the contract are compiled to be a contract of service?

If the three questions are satisfied, then the individual would be considered as an employee and the employer will be vicariously liable to the acts of his employee performed during the course of employment. As per the English tort law an employer would be liable for the acts of his temporary employees loaned from third party services. The onus to prove that the employee was acting in his course of employment while the tort was committed lies on the claimant.  However, in the case of Joel v Morison[16], Parke B protected the rights of employers by stating that the master is only liable when the act is performed during the course of his employment. However, if the employee denies the master’s implied common, the master will not be held liable for negligent acts of his employees. He emphasised that there must be a causal link between the tortious act and the employment.

Discussion and analysis

Contemplating the evolutionary perspective of ‘doctrine of notional extension’ and ‘doctrine of vicarious liability’ discussed in the above chapter, this chapter’s ostensible purpose is to study and analyse the revolutionary reforms of these doctrines. 

It is well settled that the doctrine of notional extension pursuant to the employer’s premise encompasses the area which the employee passes or repasses while leaving or going to his workplace. The liberal interpretation of judiciary denotes that there may be a reasonable extension in time and place, regarding the workman to be in course of his employment albeit of his absence in his workplace. The terms ‘scope of employment’ and ‘accident’ have attained a wider significance whereby the courts while determining the compensation must contemplate the risks, working conditions and incidents and the duties of a workman. [17] Andhra Pradesh High Court in Ravuri Kotayya v. Dasari Nagavardhanamma [18] laid down test to identify injury arising out of employment:

  1.  Workman must be employed or discharging his duty midst time of accident,
  2. Personal injury must have occurred at or about the place of employment where he mandatorily was required to be present to discharge his duty.
  3. The immediate act resulting in the injury must establish a proximate nexus with the employment.

Section 2 (8) of the Employees State Insurance Act, mentions the meaning of Employment injury- personal injury or occupational disease caused in the course of insurable employment within the territory of India. In Ved Prakash Garg v. Premi Devi[19] and Others the Supreme Court held that for employment and occupational injuries caused due to insurable employment, compensation must be paid along with interest. Exceptions to the general rule of the doctrine are- minor injuries not causing total or partial disablement exceeding thirty days, influence of alcohol or drugs, wilful disobedience, intentional removal of safety guard. In the case of State of Rajasthan v. Ram Prasad and Another[20], the Apex Court held that the appellant will be liable to pay compensation if the workmen is exposed to Vis Major (Act of God). Doctrine of Contributory Negligence is a valid defence for the employer and the onus to prove the same is of the Employer. The law laid down in the above case was applied by the Karnataka High Court in the United India Insurance Co. Ltd v. Smt.Kanakavalli[21] wherein the deceased went to refresh himself beside the river with prior permission of his employer leading to his death, the court held the employer liable for compensation. In the case of Management of the Hathikuli Tea Estate v. Rita Bhumij[22], the Court held that the employer will be liable in case of operation of unexpected natural forces such as tidal waves, storms, hurricanes, cyclones, lightning without the inclusion of human intervention. Thus, we can apprehend that Indian judiciary has broadened the scope of the term ‘arising during or in the course of employment’. 

At this juncture, while examining the question when the employment commences and ceases, the reasoning coined by Lord Porter in Weaver v. Tredegar Iron Coal Co [23] is analysed wherein he expanded the scope of duty while elucidating the duty doesn’t cease on showing ‘down tool’ signal or while leaving his workshop. If the workman is arriving and leaving the workplace in the course of employment under the implied terms of the contract, then the employer is liable for compensation. In the recent judgments of WM Morrison Supermarkets [24], the Court of Appeal of the United Kingdom stated that employers should be liable only if the employees’ conduct was “closely related” to their daily duties. Mr. Skelton’s “area of operations” did not include the digital disclosure of the data as it was not his job. His unlawful disclosure of the data wasn’t quite closely related to the job that it can be considered made in the usual course of his work reasonably and properly. Hence, the court held that the employer was not vicariously liable. Furthermore, the court in the case of Haringey London Borough Council v FZO [25] held the school liable for sexual abuse of a student by a teacher not only in the premises of the school but also after the claimant left the school premises.  In Barclays Bank PLC v Various Claimants[26] recognized the traditional law principle that the employer will not be held liable for the acts of an independent contractor. The judgements passed by the Court of Appeal prove their expansive approach towards the application of the test of ‘close connection’. 

Conclusion and suggestions

In recent decades, the judiciary had centred on a narrow interpretation of a “notional extension of the workplace.” As a result, injuries that occurred while the employee was on the route to his workplace, were not encompassed within the ambit of the term ‘accidents’ that occurred “out of and in the course of work.” The definition “arising out of” was thus subjected to judicial interpretation since its inception, and in most cases, the court has intended to confer a liberal interpretation. Moreover, this term has contemporarily been used in conjunction with the phrase “arising out of employment.” Despite the fact that the notion of these two words are dissimilar, they are inextricably linked. It was formerly believed that arising “in the path” meant a large circle and “out of” meant a small circle within it. However, the preferred approach is that these two terms are two circles that converge somewhere. To be compensated, these two conditions must be met. Under this statute, these two terms are conjunctive. If these principles had been disjunctive, a larger area must be addressed. Vicarious liability established in the UK is a legal responsibility levied on the employer for employees negligent or unauthorised acts performed in the course of employment wherein the act must have a connection with the employment. Therefore, this principle is a loss-distribution mechanism applicable on the grounds of economic and social policy. These doctrines have accomplished the ostensible purpose of the statutes by recognizing the rights of the employees.



[1] George A. Kingston, Arising out of and in Course of Employment, 4 The Virginia Law Register 804–820 (1919), (last visited Feb 25, 2021).

[2] The Superintending Engineer vs Tmt.Sankupathy, 2004(5) CTC 321 Mad First Bench

[3] Mackinnon Mackenzie and Co Pvt. Ltd v. Ibrahim Mohammad Issak, (1965) 67 BLJR 735.

[4] Kamta Prasad Pandey, COMPENSABLE HARM UNDER WORKMEN’S COMPENSATION ACT, 1923—A COMPARATIVE STUDY OF THE INDIAN AND ENGLISH DECISIONS, 11 Journal of the Indian Law Institute 430–479 (1969), (last visited Feb 25, 2021).

[5] Master and Servant. Injury “Arising out of and in the Course of the Employment,” , 5 The Virginia Law Register 238–240 (1919), (last visited Feb 25, 2021).

[6] M. Mackenzie v. I.M. Issak, (1970)

[7] R.b Mundra and Co. v. Mr. Bhanwari, (1990) RAJ 111

[8] Shakuntala Chandrakant Shresti v. Prabhakar Maruti Garveli and Another, (2007) I L.L.J 478 (SC)

[9] The Divisional Controller v. Smt. Kiran and Ors. 2017 ILR 363 (SC)

[10] Fenton v. Thorley & Co., 1904 UKHL 460

[11] State of Rajasthan v. Ram Prasad and Another, (2001) IL.L.J 188 (SC)

[12] Trustees Port of Bombay v. Yamunabai, (1952) Bom. 392

[13] Balaji v. Kala, (2018) Mad C.M.A. 2279

[14] (1969) 2 QB 178

[15] (1934) 1 KB 192

[16] (1934) EWHC KB J89 178 ER 1336

[18] (1961) AP 42

[19] (1997) 8 SCC 1

[20] (2001) I L.L.J. 177 (SC)

[21] (2020) 4 SCC 55

[22] (2018) 2 LLJ 339

[23] (1940) 4 All. E.R 167

[24] (2020) UKSC 12

[25] (2020) EWCA Civ 180

[26] (2020) UKSC 13

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