Scottish Court of Session Decisions

The Workmen's Compensation Act 1897 provides (section 4)—“Where, in an employment to which this Act applies, the undertakers, as hereinafter defined, contract with any person for the execution by or under such contractor of any work, and the undertakers would, if such work were executed by workmen immediately employed by them, be liable to pay compensation under this Act to those workmen in respect of any accident arising out of and in the course of their employment, the undertakers shall be liable to pay to any workman employed in the execution of the work any compensation which is payable to the workman (whether under this Act or in respect of personal negligence or wilful act independently of this Act) by such contractor, or would be so payable if such contractor were an employer to whom this Act applies.”

“This section shall not apply to any contract with any person for the execution by or under such contractor of any work which is merely ancillary or incidental to, and is no part of or process in, the trade or business carried on by such undertakers respectively.”

By section 7 it is provided, inter alia—“(1) This Act shall apply only to employment by the undertakers, as hereinafter defined, on or in or about a railway, factory, mine, quarry, or engineering work.” …

“ ‘Undertakers,’ in the case of a railway, means the railway company.”

In a claim under the Workmen's Compensation Act 1897 at the instance of Mrs Mary Ann Carson or Burns, widow of James Burns, against the North British Railway Company, the following facts were found proved by the Sheriff of Lanarkshire ( Balfour)—“(1) That the said deceased James Burns was at and prior to his death in the employment of Stevens & Sons, railway signal makers, Glasgow, and that on the 9th of August 1899, while he was at work fitting signal wires on the Edinburgh Suburban Railway, near Duddingston Station, he was knocked down by a passenger train and killed; (2) That the respondents were making three new sidings and a new connection with their main line on the fore-said railway, of all of which railways they were owners, and that they had contracted with Messrs Stevens & Sons to fit up new signals in connection with these sidings; (3) That the respondents never construct any new signalling apparatus, but that they keep a staff of men merely to maintain the signals in the same way as they keep a staff to maintain the permanent way; (4) That the appellants are the widow and children of the said James Burns, and were dependent on him; (5) That the wages earned by the said deceased James Burns from 20th August 1896 to 9th August 1899,

Page: 449↓

during which time he was in the employment of Stevens & Sons, amount to £163, 17s. 11d., and his employment by Stevens & Sons was substantially continuous.”

On these facts the Sheriff found in law—“(1) That the fourth section of the Workmen's Compensation Act did not apply to the present application, in respect that the respondents were not the principal contractors in connection with the fitting up of the signalling apparatus, but they were the owners of the railway on which the apparatus was fitted up, and they had not a sub-contract with Stevens & Sons for the fitting up of the apparatus in the sense of the foresaid section; and (2) that even if the fourth section applied to this application the work in question was merely ancillary or incidental to and was no part of the business carried on by the respondents.” He accordingly found the respondents were not liable in compensation under the foresaid Act, and he dismissed the application and found the appellants liable in £3, 3s. of expenses.

At the instance of the applicant the Sheriff stated a case for appeal, with the following questions of law—“(1) Whether the respondents were, in terms of section 4 of the Workmen's Compensation Act 1897, liable as undertakers, in the sense of that section, to make compensation to the appellants? (2) Whether the work, in the execution of which the deceased was engaged at the time of the accident, was merely ancillary or incidental to and no part of or process in the trade or business carried on by the respondents?”

Argued for the appellant—The Sheriff was wrong. He seemed to have decided the case on the assumption that it was necessary to have three parties—an undertaker, a contractor, and a sub-contractor. There was no ground for that assumption; on the contrary, it was expressly provided in section 7 (quoted supra) that in the case of a railway the railway company were the undertakers. Three parties may be necessary in the case of work carried on in a house— Macgregor v. Dansken, February 3, 1899, 1 F. 536—but a railway company was its own undertaker. On any other footing a railway company which carried on its business without a separate contractor, could never be liable for accidents to the workmen. Again, the company could not escape on the ground that the accident occurred in the course of work “ancillary or incidental to” their undertaking. The workman was engaged in putting up signals on a new siding on a completed line. That was an integral and essential part of the company's undertaking. They could not run their trains or carry on their business as carriers without signals, which were as much a main part of the undertaking as the permanent way.

Argued for the respondents— The company were not the undertakers under section 7, except in carrying on traffic. In respect to providing and constructing the line they were no more the undertakers than was the owner of the house in Macgregor v. Dansken, supra. The under takers were Stevens & Sons. The question whether the work was ancillary or incidental was a question of fact, and the Sheriff's judgment was therefore final. If it was held that it was a question of law, the Sheriff had decided it rightly. The business of a railway company was that of a carrier; putting up signals was ancillary and incidental to that business. It was, no doubt, essential; but the distinction drawn by the Act was not between essential and unessential work, but between the main business and subordinate adjuncts to it.