(On Appeal from the Court of Appeal in England.)
Subject_Master and Servant — Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37) — Employment “on or in or about” an “Engineering Work” — Sec. 7, sub-sec. 1.
A firm of contractors who were engaged in substituting electric for horse tramway lines in the streets of a town stored the new rails when unloaded from the railway trucks in
the railway company's yard by arrangement with the railway company. An employee of the contractors was injured while stacking the rails. The yard abutted upon a street through which the electric tramway would ultimately run, but at the time of the accident operations had not extended beyond a point distant over a quarter of a mile from the yard.
Held ( aff. the judgment of the Court of Appeal, diss. Lord Loreburn, L.C., and
Lord James of Hereford) that the injured man was not at the time of the accident employed on or in or about an engineering work within the meaning of section 7 of the Workmen's Compensation Act 1897.
This was an appeal from a judgment of the Court of Appeal ( Collins, M.R., Mathew and Cozens-Hardy, L.JJ.), who had reversed a decision of the County Court Judge at Exeter.
The appellant, a labourer in the respondents’ employment, on the 17th August 1904 was injured whilst engaged in unloading and stacking certain rails.
The respondents were contractors engaged in taking up horse tramway lines and laying down electric tramway lines in certain streets and roads of the city of Exeter, including the road from St David's Station to the Clock Tower and along Queen Street. The rails in question were brought to Exeter for the purpose of the respondents’ contract, and were by arrangement between the respondents and the London and South-Western Railway Company stacked and stored when unloaded from the trucks at Exeter in the London and South-Western Railway yard situated in Queen Street, at a distance of fifty yards or there-abouts from the Clock Tower. The yard abutted on Queen Street and was separated from it only by a gateway, and the rails stacked and stored in the yard were taken directly on to the tramway lines by the respondents in the performance of their contract. At the time of the accident the respondents were engaged in taking up the old horse tramway lines, at a distance of about 700 yards from the scene of the accident on the St David's Station side of the Clock Tower.
The County Court Judge found that the site upon which the rails were stacked in the yard was “on or in or about an engineering work,” and he accordingly made an award in favour of the appellant.
At delivering judgment—
I naturally entertain the opinion which I have formed with considerable doubt. The question for discussion in this appeal is whether there was evidence before the County Court Judge on which he could legitimately find that the appellant was at the time of the accident in respect of which he claims compensation employed “on or in or about” an “engineering work” within the meaning of section 7 of the Workmen's Compensation Act 1897. The appellant was, when the accident occurred, engaged for the respondents, his employers, in stacking in the yard of the South-Western Railway Company at Exeter certain rails consigned to those employers, and there delivered to them. These rails were obtained in order that they might be used in certain work which the employers had contracted to execute, and were actually engaged in executing, namely, the tearing up of the rails of an old tramway laid in Exeter worked by horse power, and replacing them by rails to be used for an electric tramway to be laid down from St David's Station to the Clock Tower and along Queen Street. The place where the accident occurred was fifty yards distant from the Clock Tower, and 700 yards distant from the nearest point at which the tearing up of the old line of rails was then being carried on. But the yard abutted upon Queen Street, and was only separated from it by a gateway, and the projected works, if carried out completely as proposed, would at some portion of their progress have been actually carried on in close proximity to this yard. Our attention has been called to numerous authorities, including Wrigley v. Whittaker,  AC 299, decided in this House. The view of the statute apparently taken in all the cases was that the Legislature had intended to select certain fields of operation in which, owing to the nature of the work done there, danger to the workman employed in doing it might be supposed to exist, and to confine the benefits conferr ed by the statute to injuries sustained in those physical areas or in close proximity to them. And accordingly these cases seem to have established that it is necessary in order to satisfy the words of section 7, sub-section 1, to hold that the employment in which the workman must be engaged in order to entitle him to recover must be carried on in some defined or ascertainable physical area, and that at the time of the accident he must have been working “on or in or about” that area, the word “about” being held to be equivalent at best to “in close proximity to.” In Wrigley v. Whittaker the workman was admittedly at the time of the accident engaged in doing his employer's business, namely, erecting in the factory of a certain company a wheel forged in his employer's factory, and by his employer contracted to be put up in the factory in which it was being placed when the accident occurred. Yet the workman was held not to be entitled to compensation, though it was not questioned that if a similar accident had happened to him before the wheel had left his employer's factory he would have been so entitled. I think that these cases were properly decided. Whether the decisions are sound or unsound, whether they lead or do not lead to irrational results, it is, I think, almost too late to inquire. The principle underlying them must now, I think, be taken to be firmly established, and the test laid down by them must be applied. To disturb them would cause the utmost confusion and perplexity, and, moreover, the Act is so worded that if the test thus stated were rejected it would
Counsel for the Appellant— Gutteridge—Hemmant. Agents— Baylis, Pearce, & Company, Solicitors.
Counsel for the Respondents— Ruegg, K.C.—W. Shakespeare. Agents— William Hurd & Son, Solicitors.