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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Berwickshire County Council v. Middlemiss [1900] ScotLR 37_297 (17 January 1900)
URL: http://www.bailii.org/scot/cases/ScotCS/1900/37SLR0297.html
Cite as: [1900] ScotLR 37_297, [1900] SLR 37_297
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SCOTTISH_SLR_Court_of_Session
Page: 297↓
Court of Session Inner House First Division.
v.
Facts:
A section of road was under repair by a steam roller, with a water-cart which was used to water those parts of the road which had been previously blinded, in order that they might be rolled. The work was stopped for the dinner-hour at a place where the Dunbar and Haddington roads met. After the dinner-hour the steam-roller proceeded to roll part of the Haddington Road where ruts had been filled up, for which water was not required, and the water-cart was directed to proceed to water a part of the Dunbar Road about a quarter of a mile away. As the driver of the cart was yoking his horse it bolted, from some unknown cause, with the result that the driver was run over and killed. Held (1) that the work of repairing roads on which a steam-roller was employed was an “engineering work” under section 7 of the Workmen's Compensation Act 1897, and (2) that the driver of the cart was employed on or in or about that work at the time of the accident, and his representatives were therefore entitled to compensation.
The Workmen's Compensation Act 1897 provides, section 7—“(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. (2) ‘Engineering work’ means 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.” In a case stated for appeal by the Sheriff-Substitute of Berwickshire ( Dundas) at the instance of the Middle District Committee of the County Council of Berwickshire, in an action against them at the instance of Margaret Purves Middlemiss, widow of the deceased James Middlemiss, labourer, for herself and as the administrator for her pupil children, for compensation for his death, the following facts were stated to be admitted or proved—“The appellants are the authority having control of the roads in the middle district of Berwickshire, which includes the parish of Cran-shaws, and as such execute the work necessary to keep the same in repair. For this purpose they possess and use a steamroller and a water-cart for conveying the
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water for the steam-roller and for sprinkling the water on the road under repair. The appellants contracted with William Middlemiss, the brother of deceased, to supply a horse for the water cart and a man to drive it, and to do any other work in connection with the repair of the roads with the steam-roller, and who was to be entirely under the orders of the appellants' surveyor, and liable to dismissal by him. The deceased was the man supplied under said contract, and for nine months prior to the accident had been employed in connection with the repair of the roads by the appellants. The wages of the deceased during that period were £1 per week, and were paid by the appellants to the said William Middlemiss. The deceased was also entitled to lodge in a van belonging to the appellants, with fire and light, which was of the value of 3s. 6d. per week. The duties of the deceased included the carting and sprinkling of water for the repair of the roads and for supplying the steamroller, carting coals for the engine, and, when required, spreading and sweeping the blinding on the metal in front of the roller. At the time of the accident the appellants were repairing the section of roads in the neighbourhood of Cranshaws Schoolhouse. At that part the road leading to the north, past the smithy and manse, divides immediately to the north of the schoolhouse, the right-hand branch being known as the Play haugh or Dunbar Road, and the left-hand branch as the Haddington Road. On the 11th day of July last, in the forenoon, a patch on the Dunbar Road, immediately beyond Cranshaws Schoolhouse, was being repaired by the appellants, metal having been put on with blinding, and watered and rolled by the steam-roller, the deceased having been engaged thereat. This patch was finished about twelve o'clock, when the men stopped for dinner, and the steam-roller and water-cart were left standing at the side of the Dunbar Road, close to the schoolhouse. At the end of the dinner-hour the steamroller proceeded to roll the Haddington Road from the schoolhouse northwards, on which metal had been sprpad to fill up the ruts and hollows where required, and for which operations water was not being used; and the deceased at the same time, on the instructions of appellants' foreman, proceeded to yoke his horse to the water-cart for the purpose of driving water to sprinkle on a part of the road under repair south of the schoolhouse and about a quarter of a mile therefrom, and on which the roller was to be used after finishing the Haddington Road. While the deceased was yoking his horse to the water-cart the horse, from some unknown cause, bolted, and ran with the cart for a distance of about forty yards along the Dunbar Road, which had been under repair that day, and the deceased was knocked down in trying to stop the horse, and a wheel of the cart passed over his body, causing serious injuries from which he died a few hours afterwards. At the time of the accident the steam-roller was on the Haddington Road, but there was no evidence to show how far it was from the place where the accident happened, but about ten minutes afterwards it was working on that road about 500 yards from the schoolhouse.” The Sheriff-Substitute found that the appellants were the undertakers of an engineering work in terms of the Workmen's Compensation Act 1897, section 7 (2), on which the deceased James Middlemiss was employed when the accident took place by which he was killed, and that the said accident arose out of, and was in the course of, his said employment; that the respondent and her two pupil children were the only dependents on the deceased within the meaning of the Act, and as such were entitled to compensation; assessed the same at £183, 6s. sterling.
The following were the questions of law stated in the case—“(1) Were the appellants the undertakers of an engineering work in terms of section 7 (2) of the Act? (2) Were the operations of the appellants an engineering work within the meaning of section 7 (1) (2) of the Act? (3) Was the deceased at the time of the accident employed in on or about an engineering work within the meaning of section 7 (1) of the Act ? (4) Did the injury to deceased arise out of and in the course of his employment at an engineering work within the meaning of section 1 (1) of the Act?”
Argued for the appellants—(1) The question to be looked at was, what was being done at the time of the accident, and the answer was that the steam-roller was rolling-in stones which had been placed in ruts. Although road-making might be within the definition of “engineering work” in section 7 (quoted supra), rolling the ruts was not. It was analogous to painting the outside of a house, or the joists and beams, which had been held not to be repairing— Wood v. Walsh & Sons (1899), 1 Q.B. 1009; M'Donald v. Hobbs & Samuel, October 17, 1899, ante p. 4, per Lord Young. (2) Even if repairing the road with the steam-roller was an engineering work, Middlemiss was not, at the time of the accident, engaged “on or in or about” it. He was engaged in yoking his horse in order to water a different part of the road, where no mechanical means were being employed, and which was therefore not an engineering work in the sense of the Act. It could not be maintained that the presence of the steam-roller turned the whole roads in the neighbourhood into an engineering work. The case was ruled by the decisions where it had been held that a person employed in bringing material to a work was not engaged on or in or about that work— Chambers v. Whitehaven Harbour Commissioners (1899), 2 Q.B. 132; Holtness v. Mackay & Davis (1899), 2 Q.B. 319; Bell & Sime v. Whitton, June 16, 1899, 1 F. 942.
Argued for the respondent—(1) Both the steam-roller and the water-cart were jointly engaged in repairing the road. Repairing a road with the employment of mechanical power was undoubtedly an engineering work under section 7. They were not merely preserving the fabric, as in the
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painting cases cited by the other side, but actually repairing. (2) The whole section of the road which was under repair constituted the work, and those repairing it were engaged on that work whether the engine was at that particular place or not— Durham v. Brown Bros. & Co., December 13, 1898, 1 F 279; Devine v. Caledonian Railway Company, July 11, 1899, 36 S.L.R. 877. The Act did not confine compensation to cases of accident owing to the steam-engine employed, it was enough that the steam-engine was used.
In considering the second question it is proper to keep in view the statement in the case that throughout the forenoon the deceased had been engaged in the work just described, and that his duties included, when required, spreading and sweeping the blinding on the metal in front of the roller, that when the men separated after the dinner-hour the steam-roller proceeded to roll a part of the road on which metal had been spread to fill up ruts, and that for that particular operation water was not required, as also that the deceased went with his water-cart to another part of the road which was to be sprinkled with water. The steam-roller and water-cart were, however, each part of the machinery or plant generally required and used in the composite process of road repair, and accordingly the deceased was employed in that composite process. It does not seem to me that he had ceased to be so employed because at the time when the accident occurred the steamroller had gone to do a piece of work for which water was not required. If it had been proved that the horse of which the deceased had been in charge had bolted owing to the noise of the steamroller, it would have been difficult to say that the accident was not due to the use of machinery driven by steam, although the Act does not require that it shall be proved that the accident was caused by the use of such machinery, no doubt upon the view that the use of such machinery is attended by dangers not incident to machinery in which steam is not used.
Cases were referred to in the course of the discussion which do not seem to have any bearing on the question before us, e.g., the case of Chambers v. Whitehaven Harbour Commissioners, L.R. (1899), Q.B.D. 133, in which where a workman had fallen from a hopper in which dredgings were being removed to about a mile and a-half out at sea, and been drowned, it was held that he was not at the time of the accident employed on in or about an engineering work within the meaning of sec. 7 of the Act. The engineering work in that case was dredging, and in removing the dredgings to so great a distance the workman was not even “about” the work. In contrast with that case reference may be made to Devine v. Caledonian Railway Co., 36 S.L.R. 877.
The question is whether the deceased was employed in an engineering work? The first part of the definition would not appear to include work upon a road, but the clause goes on to define the term as including “any other work for the construction alteration or repair of which machinery driven by steam … is used.” Accordingly, the question is, whether the deceased was employed on work for the repair of which machinery driven by steam was used, and I think it is beyond doubt, not only that machinery driven by steam was used, but that all the men and the engine were engaged in the repair of the road, and therefore in an engineering work in the sense of the Act. I do not think that in this case we have anything to do with the meaning or construction of the word “about.” A consideration of the meaning of that word would only be material if the deceased had not been employed in an engineering work.
Page: 300↓
I therefore agree with your Lordship that the decision of the Sheriff-Substitute is right.
The Court answered the questions in the case in the affirmative.
Counsel for the Appellant—Solicitor-General ( Dickson, Q.C.)— Glegg. Agents— Macpherson & Mackay, W.S.
Counsel for the Respondent— Baxter— Guy. Agents— Cunningham & Lawson, S.S.C.