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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Barclay, Curle, & Co., Ltd v. M'Kinnon [1901] ScotLR 38_321 (01 February 1901) URL: http://www.bailii.org/scot/cases/ScotCS/1901/38SLR0321.html Cite as: [1901] ScotLR 38_321, [1901] SLR 38_321 |
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Page: 321↓
[Sheriff-Substitute at Glasgow.
A workman who was employed as a rivetter by a firm of shipbuilders at their ship-repairing premises, which were a “factory,” but were not a “shipbuilding yard,” received injuries, which resulted in his death, while he was at work on board a steamer which was being repaired by his employers, and which was lying in a public dock at a berth distant about a mile by road and about 550 yards in a direct line from the premises of his employers.
Held that the employment at which the deceased was engaged at the time of the accident was not employment “about” a factory within the meaning of the Workmen's Compensation Act 1897, section 7 (1), and that accordingly he was not entitled to compensation under that Act.
This was a case stated by the Sheriff-Substitute at Glasgow ( Boyd) in an arbitration under the Workmen's Compensation Act 1897, between Barclay, Curle, & Company, Limited, shipbuilders, White-inch, appellants, and Mrs Janet Osborne or M'Kinnon, widow of John M'Kinnon, rivetter, claimant and respondent, with regard to a claim made by Mrs M'Kinnon for compensation in respect of the death of her husband.
The facts stated as proved or admitted were as follows:—“That John M'Kinnon, husband of the respondent, a rivetter, was in the employment of the appellants in their boiler-making
Page: 322↓
and ship-repairing premises at Kelvinhaugh Street, Glasgow—said premises being a factory within the meaning of the Workmen's Compensation Act 1897—and on certain vessels in Queen's Dock, Glasgow. That while M'Kinnon was engaged in punching holes in a plate on board a steamer which the appellants were repairing at berth No. 27 Queen's Dock, Glasgow, the plate bent and he fell to the bottom of the hold, sustaining injuries from which he died on 10th June 1900; that in the Kelvinhaugh Street works ships are not made, finished, or repaired, but that the material's for repairing ships are prepared and made ready so far as that can be done for the repairs entrusted to the appellants; that the Queen's Dock at its nearest point is distant from the appellants' Kelvinhaugh Street works about 367 yards on a bee line, and about 616 yards by road, and that berth 27 is distant from the works about a mile by road, and about 550 yards on a bee line.” Upon the foregoing facts the Sheriff-Substitute found in law “(1) That the said John M'Kinnon was employed in or about a factory belonging to and occupied by the appellants,” and found the appellants liable in compensation.
The first question of law for the opinion of the Court was—“Whether on the facts admitted and proved the Sheriff-Substitute was justified in holding that the employment at which the deceased was engaged was employment on or in or about a factory within the meaning of the Workmen's Compensation Act 1897?
There were two other questions which the Court did not find it necessary to answer.
The Workmen's Compensation Act 1897, sec. 7, sub-sec. 1, enacts—“This Act shall apply only to employment by the undertakers … on or in or about ( inter alia) a factory.”
Argued for the appellants—The appellants' Kelvinhaugh Street premises were an ordinary factory, and not a shipbuilding yard. Consequently the claimant could not take any benefit from section 7 (3) of the Workmen's Compensation Act. The Sheriff was wrong in holding that the accident occurred “about” the appellants' factory. It was well settled that the word “about” implied local contiguity. It could not reasonably be said that a dock which at its nearest point was 367 yards from the factory was in that case “about” the factory. But the measurement should be to the actual locus of the accident, which made the distance even in a direct line about 550 yards. It was settled by decision that a much less distance than that would not satisfy the meaning of the word “about”— Bell & Syme v. Whitton, June 16, 1899, 1 F. 942; Malcolm v. M'Millan, June 30, 1900, 2 F. 525; Low v. Abernethy, March 8, 1900, 2 F. 722; Brodie v. North British Railway Co., November 6, 1900, 38 S.L.R. 38; Powell v. Brown [1899], 1 Q.B. 157; Louth v. Ibbotson [1899], 1 Q.B. 1003; Chambers v. Whitehaven Harbour Commissioners [1899], 2 Q.B. 132; Fenn v. Miller [1900], 1 Q.B. 788; Francis v. Turner Brothers [1900], 1 Q.B. 478.
Argued for the respondent—It must be conceded that the appellants' Kelvinhaugh Street premises were not a shipbuilding yard. The employment of the deceased workman at the time of the accident was “about” a factory. It was clear from the decisions that the word did not mean physical contiguity, and the question was therefore one of circumstances. The Court would not interfere with the judgment of the Court below on what was really a question of fact— Powell v. Brown, supra; Loicth v. Ibbotson, supra. The dock here was within “such area as was reasonably necessary for the purposes of the business carried on in the factory”— per Collins, J., in Fenn v. Miller, supra. A large part of the appellants' work was of necessity executed in ships in the dock, which was thus really an extension of their factory. To hold otherwise would exclude the majority of workmen engaged in this class of employment from the benefit of the Act, and such a result should if possible be avoided.
At advising—
The cases to which the words “about a factory” can apply are quite different from the present. The words were evidently intended to meet the case of something being done in direct connection with the factory, though not exactly within it, as, for example, loading goods at a gate, or doing work in an annexe, though possibly separated from the principal yard by a street. It appears to me to be plain that this was the intention in inserting the word “about,” and that it is not a word suitable to indicate that wherever a workman be sent to do work for his master, he, as it were, carries the factory to that place, or establishes a factory for his employers at at that place, so that he is doing work “about” the factory. If that was what was meant, it could have easily been expressed, and I see nothing to indicate that any such intention existed.
I would move your Lordships to answer the first question in the negative, and to
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I dissented from the judgment in Malcolm's case, but I am bound to recognise its authority; and doing so, I think there is no alternative but to answer the first question here in the negative. That results in the present appeal being sustained, and the case being sent back to the Sheriff-Substitute, with directions to him to dismiss the application.
The Sheriff has rightly found that the premises at Kelvinhaugh Street, Glasgow, in which the appellants carry on their business of boiler-making and ship-repairing, are a factory within the meaning of the Workmen's Compensation Act 1897. But the workman M'Kinnon was not injured at these premises; he received the injuries of which he died on board a steamer in Queen's Dock, Glasgow, at a distance of a mile by road from the Kelvinhaugh Street premises. The question of law—that is the only question of any difficulty—is whether it can be held that when he received the fatal injuries M'Kinnon was engaged in the appellant's employment “about” their factory within the meaning of the statute. The Sheriff has held that M'Kinnon when injured was employed “in or about” a factory belonging to the appellants. I am of opinion that in point of law that finding is wrong.
It is clearly settled by decision that in order to bring the locus of an accident within the scope of the statute, it is not enough that the workman should at the time of the accident have been employed on the employer's business. Without referring to them in greater detail I may mention the recent cases in this Division, viz., Malcolm v. M'Millan, 2 F. 525, and Brodie v. North British Railway Co., 38 S.L.R. 38, and the English cases of Fenn v. Miller and Francis v. Turner.
It is quite true that the use of the word “about” indicates that “employment” for the purposes of the Act is not to be strictly confined to the four walls of the factory. Certain operations closely connected with the work of the factory may have to be carried on outside the factory, at its gate, for instance, or in an adjacent yard, or even at an outlying bit of ground belonging to the owners of the factory, or which they have right to use in connection with their work.
But it is a totally different matter when the proprietors of the factory, having completed within the factory all the work which can be done there, send their workmen either to execute repairs or to fit up apparatus or furnishings in premises belonging to customers at a distance. No doubt such work may involve risks quite as great as those in the factory, and if injury results to a workman through the fault of his employers or those for whom they are responsible, he will at common law or under the Employers Liability Act be entitled to compensation. But the question here is, whether under the Workmen's Compensation Act such premises can be regarded in any proper sense as being “about” a factory.
The present case is one of some hardship. From the nature of the appellants' business their workmen are employed not merely to work in the Kelvinhaugh premises, but also to go if required to repair vessels lying in the docks. Probably their harder and more hazardous work is connected with the latter employment. This may have been a very proper case for the statute to provide for, just as it has made provision in regard to shipbuilding yards—section 7, sub-section (3). But it has not done so, and I entertain little or no doubt that we should be straining the terms of the statute, and opening a very wide door to even more doubtful claims, if we were to hold that this case is covered by the terms of the 7th section. In order to demonstrate this it is almost sufficient to say that such a decision would apply to every case in which tradesmen or manufacturers whose premises come under the head of “factories,” as defined in the statute, send their workmen to the houses or premises of their customers to execute repairs, or fit up the materials or apparatuses which have been manufactured in the factory.
I am of opinion that we should sustain the appeal and answer the first question in law in the negative.
The Court answered the first question of law in the negative, and remitted to the Sheriff-Substitute to dismiss the application.
Counsel for the Appellants— W. Campbell, K.C.— Younger. Agents— Morton, Smart, & Macdonald, W.S.
Counsel for the Claimant and Respondent— Shaw, K.C.— Findlay. Agents— J. & J. Galletly, S.S.C.
