Scottish Court of Session Decisions

This was an appeal upon a case stated in the matter of an arbitration under the Workmen's Compensation Act 1897 between Robert Bee, carter, Leith, claimant and respondent, and Thomas Ovens & Sons, manufacturers of sulphuric acid and chemical fertilisers, Leith, appellants.

The facts stated by the Sheriff-Substitute ( Sym) were as follows:—“The appellants are manufacturers of and dealers in feeding stuffs and chemical manures. They import and store in their own stores, or those of others, the raw materials, make them up in their works, and deliver them to their customers, or to a common carrier for their customers. Part of their raw material is brought by sea to Leith Docks, and thence carted to their stores or their factory. Another part is brought by rail to various railway stations in Leith, and this part is carted from the ordinary goods stations in or near Leith.

The works of said Thomas Ovens & Sons form a factory in the sense of the Factory and Workshop Acts.

The appellants have no carts or horses of their own. They do not cart for profit, but simply to give delivery to their customers or take delivery from merchants when carting is needed for these purposes. In order to have their carting done they have a contract with Cowan & Company, carting contractors. It is constituted by letters by which they (the appellants) ‘agree to give you’ (Cowan & Company) ‘our cartage’ at certain rates, Cowan & Company ‘always to keep us well supplied with carts.’ Sometimes, e.g., when a ship has to be discharged, the appellants require numerous carts. At other times they have little carting to be done, but nearly always they require the services of at least one cart, and therefore one of Cowan & Company's carters goes to them almost every morning, and when required is employed there in miscellaneous carting for them.

The customers of the appellants sometimes have their goods put free on rail for them at one of the Leith stations. The carriage is then paid altogether by the appellants. Sometimes the contract is that the customer pays carriage, in which case he is charged with cartage to the station by the carts supplied to the appellants by Cowan & Company, as well as with railway freight.

For some time before June 1899 Robert Bee, the respondent, one of the carters employed by Cowan & Company, had been engaged in the work of the appellants almost daily, obeying the directions of their foreman as to the work which he had to do.

“The respondent's wages were 21s. per week.

On 5th June 1899 the respondent in the course of his ordinary duties drove a cart of maize from a store in Leith to the appellant's factory, and while taking it to the hoist to be sent up into the mill he was accidentally crushed between the near or left shaft of the cart or lorry and the wall of the building, part of the factory into which he was leading his horse. In this manner he received severe injury to his collar-bone and right arm, whereby he has been, and will for some time be, incapacitated for his work as a carter.

The appellants denied liability, under the Workmen's Compensation Act 1897, to pay compensation to the respondent, whom they did not employ, although he was injured ‘in or about’ their factory, on the grounds that carting was not an essential part of their work as makers of and dealers in manures and feeding stuffs, and section 4 of the Workmen's Compensation Act 1897 did not apply to the case. In any view, they maintained that carting was merely ‘ancillary or incidental to, and no part of or process in the trade or business carried on by them,’ and therefore that section 4, assuming that it would otherwise have applied, was excluded.”

The Sheriff-Substitute was of opinion that the appellants were the undertakers in the sense of the Act; that the case was the same as if the respondent had been in the employment of the appellants; and that the work of putting the material into the mill, or giving delivery of the finished article by cart to the customer was a part of the business which they carried on. He accordingly gave decree for 10s. 6d. per week from 19th June 1899 till further orders of Court.

The questions of law for the opinion of the Court were :—“(1) Whether the appellants are in respect of section 4 of the Workmen's Compensation Act 1897 liable to pay compensation to the respondent for the injury which befel him on 5th June 1899 when delivering maize at their works, which are a factory within the meaning of the Workmen's Compensation Act 1897, he not having been in the appellants’ employment but in that of Messrs Cowan & Company, who had contracted to perform carting work for the appellants? (2) Whether the work in which the respondent was engaged at the time of the accident in question was ‘merely ancillary or incidental to, and no part of or process in the trade or business carried on’ by the appellants as manufacturers of sulphuric acid, chemical fertilisers, and feeding stuffs, and dealers therein, at Timber Bush, Leith, within the meaning of the exception in said section 4 of the above-mentioned Act?”

The Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37) enacts as follows:— Section 4—“Where in an employment to which this Act applies, the undertakers, as hereinafter defined, contract with any person for the execution by or under such contractor

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of any work, and the undertakers would, if such work were executed by workmen immediately employed by them, be liable to pay compensation under this Act to those workmen in respect of any accident arising out of and in the course of their employment, the undertakers shall be liable to pay to any workman employed in the execution of the work any compensation which is payable to the workman (whether under this Act or in respect of personal negligence or wilful act independently of this Act) by such contractor, or would be so payable if such contractor were an employer to whom this Act applies: Provided that the undertakers shall be entitled to be indemnified by any other person who would have been liable independently of this section. This section shall not apply to any contract with any person for the execution by or under such contractor of any work which is merely ancillary or incidental to, and is no part of or process in the trade or business carried on by such undertakers respectively.”

Argued for the appellants—(1) The respondent could only have a claim under section 4 of the Workmen's Compensation Act 1897 if he was engaged in an employment to which that Act applied. The respondent was not so employed. He was employed to work as a carter. That was not an employment to which the Act applied, and the respondent therefore had no claim under section 4. (2) No workman could have a claim under section 4 against an underlaker unless he had a claim either apart from or under the Act against his own immediate employer the contractor— M'Gregor v. Dansken, Feb. 3, 1899, 1 F. 536. The appellant here had no such claim against his own employer. He had no such claim apart from the Act, for fault was not averred or proved, and he had no such claim under the Act, for the employment in which he was engaged to work by his own employer was not an employment to which the Act applied. Consequently the respondent had no claim against the appellants under section 4. (3) Apart from these grounds of defence, the delivery of goods to the factory was work which was “merely ancillary or incidental to, and was no part of or process in the trade or business carried on” by the appellants in their factory. That was the work which the respondent was engaged in when he met with his accident, and that was the work which his employers the carting contractors had contracted to execute. This case therefore fell under the exception in the last paragraph of section 4, and that section consequently did not apply.

Argued for the respondents—The sole question here really came to be whether the respondent was employed in work which was part of the business carried on in the factory. It had been decided that carting was part of the business carried on in a factory, and was not merely ancillary or incidental to it, and that consequently a carter in the employment of the occupier of a factory, who had been injured while working as a carter on, in, or about the factory was entitled to compensation under the Act — Powell v. Brown [1899], 1 Q.B. 157. The carting work upon which the respondent was employed was essential to the carrying on of the business of the factory. Therefore the exception in the last paragraph of section 4 did not apply here. Apart from that exception, the result of section 4 was that the occupier of a factory was liable to a workman not immediately employed by him who was injured while working on, in, or about the factory, and engaged in work which his immediate employer had contracted to execute for the occupier of the factory, just as if such workman had been directly employed by such occupier himself. That was the position of the respondent here, and as the occupier would have been liable if the respondent had been immediately employed by him, the respondent was entitled to compensation, and the judgment of the Sheriff-Substitute should be affirmed.