Scottish Court of Session Decisions

This was a stated case under the Workmen's Compensation Act 1897, in a statutory arbitration in which the respondent Mrs Whitton, 16 Lyon Street, Dundee, widow of the deceased Adam Whitton, carter, sued Messrs Bell & Sime, Limited, timber merchants, Dundee, for compensation for the death of her husband.

The following case was stated by the Sheriff-Substitute ( Campbell Smith):—“(1) That the appellants' business, which is a business for sawing, polishing, and distributing timber for building and other domestic purposes falls under the provisions of the Workmen's Compensation Act. (2) That Adam Whitton, the husband of the respondent (Mrs Arnot Bonthron or Whitton) and the father of the other pursuers, was one of the staff of carters employed by them to distribute to their customers the finished material of their works by means of a horse and cart belonging to them, and loaded by other men in their timberfinishing factory, as also to assist in unloading said timber when it arrived at its destination, and generally to do what he might be ordered to do with the aid of a horse and cart in the way of bringing rough timber into the works, and shifting it about therein for the convenience of the men, who cut it up and finished it for various architectural and domestic purposes. (3) That on the morning of 4th November 1898, before it was daylight, the deceased was directed by the appellants' ‘delivery-clerk’ to yoke the horse which he had brought from the appellants' stable to one of their carts for carrying long wood, standing loaded and ready to be yoked, and to deliver it at ‘Nairn's job, Rockfield Street, via Blackness Avenue,’ which job was a villa in the course of erection on ground feued from Hunter of Blackness. (4) That the delivery-clerk, in consequence of information from the contractor's joiners, who were to place the wood in the building, told the deceased to go by Blackness Avenue and take ‘the old farm road,’ which was the only practicable road at that time, as Rockfield Street was only in the course of construction. (5) That he, as directed, passed along this old farm road, which is estimated to be about two miles from the appellants' sawmill and other works, and runs by the side of a field 3 or 4 feet below the level of the road, and separated from it by a dry-stone retaining-wall of a frail character, never rising more than a few inches above the level of the road. (6) That when so passing along this old road, and the deceased on the cart guiding the horse with the reins, the left wheel of the cart came to a spot, guessed as being about 15 inches away from the retaining-wall, when the road and wall suddenly gave way, and the cart, load, and horse toppled over into the field, with the result that the driver was crushed to death beneath the load. And the Sheriff-Substitute also found ‘(7) It is not proved that the death of the deceased was caused by his serious and wilful default.’

On the facts found as above the questions of law for the opinion of the Court are—(1) Were the appellants rightly held liable to make compensation under the Workmen's Compensation Act 1897? (2) Did the said accident arise out of and in the course of an employment ‘on or in or about’ a factory in the sense of the Workmen's Compensation Act 1897? (3) Was the deceased's employment one to which the Workmen's Compensation Act applies?”

The appellants referred to the cases of Lowth v. Ibbotson, March 11, 1899, 15 T.L.R. 264; and Powell v. Brown and Another, L.R. [1899], 1 Q.B. 157.