Scottish Court of Session Decisions

This was a case stated by the Sheriff-Substitute of Lanarkshire at Glasgow ( Spens) in an arbitration under the Workmen's Compensation Act 1897, in which Janet Rae sought payment from A. Fraser of £300 in respect of the death of her husband through an accident while in Mr Fraser's employment.

The facts established by the proof were thus stated by the Sheriff-Substitute:—“(1) The appellant is the widow of John Rae, who was killed on 10th February 1899, while engaged along with James Golding and Andrew Fraser junior, all in the respondent's employment, in lifting a certain air compresser, then lying on the quay at Glasgow, by means of a hydraulic jack. (2) The air compresser in question had been used in connection with the new bridge across the Clyde at Jamaica Street, but having served its purpose it had been, inter alia, sold. (3) The respondent's contract was with the purchaser, and it merely was to lift the air compresser from where it was, lying resting upon two blocks sufficiently high to enable a lorry to be placed underneath, and to place it upon the lorry. (4) Somehow the jack got off the plumb, and the compresser in consequence shifted its position and came down upon the said deceased John Rae, crushing him to death.

In these circumstances,” the Sheriff-Substitute continued, “I found that the accident is not one for which compensation falls to be awarded under the Workmen's Compensation Act. I therefore dismissed the claim as I was of opinion that the contract which the respondent had undertaken, and which was simply to lift the air compresser sufficiently high to put a lorry under it, and to load it on the lorry, did not bring the respondent within the definition of ‘undertaker,’ nor did his contract fall within the definition of ‘engineering work’ in section 7 (2) of the Workmen's Compensation Act 1897.”

The question of law submitted to the Court was as follows:—“Whether the word ‘alteration’ in the definition of engineering work,’ in section 7 of the said Act, means structural alteration only, and does not apply to the raising of an air compresser by means of a hydraulic jack so as to place it on a lorry?”

Page: 783↓

The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), sec. 7, sub-sec. (1) enacts—“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.” … By sub-section (2) Engineering work is defined as “any work of construction or alteration or repair of a railroad, harbour, dock, canal, or sewer, and includes any other work for the construction, alteration, or repair of which machinery driven by steam, water, or other mechanical power is used.”

By the same sub-section “Factory” is declared to have the same meaning as in the Factory and Workshop Acts 1878 to 1891, “and also includes any dock, wharf, quay, warehouse, machinery, or plant to which any provision of the Factory Acts is applied by the Factory and Workshop Act 1895 (58 and 59 Vict. cap. 37).

By Act of Sederunt, 3rd June 1898, sec. 9, sub-sec. ( g), the Court are empowered, before giving their determination, to send back the case to the Sheriff for amendment.

Argued for the appellant—What the Sheriff had determined here was something more than the limited issue set forth in the question submitted to the Court. He had decided the much broader point “that the accident is not one for which compensation falls to be awarded” under the Act. That finding made it competent for the appellant to argue the question whether the fact that this accident had occurred on a quay, to which the provisions of the Factory Acts had been applied by the Factory Act of 1895, did not bring the present case within the Act of 1897. If it were not open to the appellant at that stage to argue that question, the case should be sent back to the Sheriff for re-statement in terms of the Act of Sederunt. [It is unnecessary to recapitulate the appellant's argument on section 7].

Counsel for the respondent were not called upon.