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[Sheriff-Substitute of Lanarkshire.
“Undertakers” as defined by the Workmen's Compensation Act 1897, section 7 (1) and (2), are alone liable to pay compensation under that Act, and no other employers are so liable.
A workman in the employment of the occupier of an ironfoundry was sent in the course of his employment to do some work in a soap-work, and while engaged in this work fell from a scaffolding and was killed. His widow claimed compensation under the Workmen's Compensation Act 1897 from her husband's employer, the ironfounder.
Held (1) that the ironfounder was not an “undertaker” within the meaning of the Act, and ( diss. Lord Trayner) that, as he was not an “undertaker,” he was not liable to pay compensation under it.
This was an appeal upon a case stated in the matter of an arbitration under the Workmen's Compensation Act 1897 between Jane Buchanan or Malcolm, widow of the deceased William Malcolm, blacksmith or fitter, Glasgow, and his children, claimants and appellants, and James M'Millan, ironfounder and forger, Vulcan Iron Works, Glasgow, respondent.
Proof was led and the Sheriff-Substitute ( Strachan) found in fAct —“(1) That the deceased, who was a blacksmith or fitter, and at the time of his death had been in the employment of the respondent for forty years, was on 17th March 1899, in the course of his employment as a workman to the respondent, engaged in the soap-works of Messrs Ogston & Tennant, Limited, Tennant Street, St Rollox, Glasgow, repairing from a scaffolding certain steam pipes connected with the soap vats, when he fell from the scaffolding to the ground and was killed. (2) That the appellants are the widow and children of the deceased. (3) That the earnings of the deceased during the three years preceding his death amounted to £241, 17s. 10d.”
The Sheriff-Substitute found “(1) that the defender was not liable as an employer in respect that there is no liability in that
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capacity except in the cases specially provided for in the Act, and of which this is not one. (2) That the soap-works of Messrs Ogston & Tennant, Limited, is a factory within the meaning of the Workmen's Compensation Act 1897. (3) That the occupants thereof were Ogston & Tennant, Limited, and (4) that the respondent was not an ‘undertaker’ as defined by section 7, sub-section 2, of said Act.” He accordingly dismissed the application and found the appellants liable in £2, 2s. of expenses.
The questions of law for the opinion of the Court were—“(1) Was the respondent an undertaker within the meaning of the Workmen's Compensation Act, and as such liable in compensation to the appellants? (2) Is the respondent as the employer of the deceased liable to the appellants in compensation under the Act?”
Argued for the appellant—(1) The respondent here was an “undertaker” within the meaning of the Workmen's Compensation Act 1897, section 7 (2). He was pro tempore the occupier of a portion of Ogston & Tennant's factory. He was therefore liable to pay compensation under the Act to the appellants. (2) Further, the respondent was an “undertaker” in respect of his occupancy of his own factory which was an ironfoundry. An ironfoundry was a “factory” within the meaning of the Act —Workmen's Compensation Act 1897, section 7 (2) “Factory;” and Factory and Workshop Act 1878, Fourth Schedule, Part I, Non-Textile Factories (12). The deceased workman was therefore injured while employed by an “undertaker” at work on, in, or about a factory, viz., Ogston & Tennant's factory. (3) Apart from this, however, liability under the Act was not confined to “undertakers.” It was contemplated that “employers” who were not “undertakers” should be liable. If this were not so, there was no intelligible reason for the frequent mention in this Act of employers as persons liable to pay compensation, and section 1 was rendered practically nugatory by section 7. “Employment to which this Act applies” meant employment not excluded by section 8. It was plain from the terms of section 4 that the Act contemplated a liability upon an “employer” who was not an undertaker, and for injury to a workman who was injured while working not in the premises of the “employer” but in the premises of an “undertaker” other than the “employer.” Where a workman was in the course of his employment employed to work for behoof of an “undertaker,” that is to say, in this case, to work in a “factory,” his own employer was liable in compensation if he was injured while so working. This interpretation of the Act had the advantage of giving effect to all the provisions of the Act, and in particular to both sections 1 and 7. Here there were (1) Ogston & Tennant “undertakers” as occupiers of a factory, and (2) the employer of a workman who in the course of his employment was working in that factory, and who was injured while so working. In these circumstances his representatives the appellants were entitled to claim compensation under the Act from his employer.
Argued for the respondent—The effect of the Workmen's Compensation Act 1897 was to make certain employers, and certain employers only, viz., “undertakers” as defined in section 7 (2), liable in compensation under the Act. No other employers were so liable. It was undoubtedly the intention of the Act to confine the benefits which it conferred to the case of persons injured while engaged in certain specified employments (the “employments to which the Act applies” referred to in section 1 and section 4) and to such persons only. These employments were enumerated in section 7. There was no other enumeration of the employments to which the Act applied except that contained in section 7, and all the employments there enumerated were employments by “undertakers” as defined by the Act. Here it was plain that the respondent was not an “undertaker.” If that were so, the appellants had no case, as only undertakers were liable. Here there was no employment by an undertaker on, in, or about a factory occupied by him. Counsel knew of no case in which any employer not an “undertaker” had been held liable.
At advising—
The wording of the Act is such as certainly to create difficulty, but after much consideration I have been unable so to read it as to answer the second question in the affirmative. The Act cannot, I think, be held to refer to all employers. Its whole framework indicates that it was intended to be limited in its application to certain particular cases. The opening words of sections 1 and 4, which are the principal enacting sections, speak distinctly of its limited character, the words being in the one case “If in any employment to which this Act applies,” and in the other “Where in an employment to which this Act applies.” It is therefore directly indicated that in some other part of the Act the employers to whom it does apply will be set forth, and I think it follows that when the words “employed,” “employment,” or “employer” are used in the Act these words must be held to be applied only to the restricted class to which it may be found by the context that the Act is made applicable. Now, if the Act is searched for the purpose of finding what are the employments to which it applies, it will be found that only in section 7 is any indication given upon that matter. That clause begins thus:—“This Act shall apply only to employment by the undertakers as herein
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The real difficulty of the case is created by the latter part of section 4. By that clause it is intended, where undertakers give out sub-contracts of portions of the work they are doing, to confer on any contractor's workman a right to obtain his compensation for an injury from the undertakers, and this whether the compensation be under the Act or be compensation in respect of any negligence or wilful fault by the contractor or those for whom he is responsible.—[ His Lordship read the section, which will be found quoted ante page 329.]
It is the words “under this Act” which create the difficulty, for they seem to imply that a sub-contractor who is not the undertaker may be liable under the Act. It is very difficult to find a meaning for these words where they occur, or to reconcile them with the rest of the statute. I will only say that if these words are to be read as meaning that the Act applies to any employer, and not to an undertaker being the employer as defined by the Act, a great part of the Act becomes in my view quite inexplicable.
I have therefore found it impossible to hold that it is a true reading of the statute that an employer can be liable under it to compensate a workman unless he be an undertaker, and as in this case the respondent was not an undertaker as defined by the Act, the Sheriff has rightly held that the petition should be dismissed, and that the questions put in the special case should be answered accordingly.
It appears to me that the primary purpose of the Workmen's Compensation Act was to provide that workmen who were injured accidentally in the course of their employment should be compensated therefor by their employers. By accidental injury I mean an injury arising from a cause which cannot be attributed to the fault of anyone. The difficulty is whether the Act has so provided.
The first clause of the Act provides that where “in any employment to which this Act applies” a workman receives personal injury by accident arising out of and in the course of the employment, his employer shall be liable in compensation, subject to certain conditions to which I need not here refer. On the other hand, section 7 of the Act provides, “This Act shall apply only to employment by the undertakers as hereinafter defined,” &c., and an opinion has been expressed that the effect of that provision is to limit the application of the Act to employment by “undertakers” in the several employments enumerated in the seventh clause.
I cannot concur in that opinion. If that opinion is sound, then all the provisions in the Act in regard to the liability of employers as such are struck out of the Act, and what I regard as its primary purpose is defeated. It does not obviate the difficulty to say that “undertaker” may include employer, because even if that were so, the liability would be an “undertaker's” liability not an employer's. But I cannot regard the words “undertaker” and “employer” as synonymous, nor the one as included in the other. I think they represent persons standing to the workman in different relations; and that this is made tolerably clear by a consideration of the provisions of the Act. Take, for example, the second sub-section ( b) of the first clause. It provides that the injured workman may, “at his option, either claim compensation under this Act, or take the same proceedings as were open to him before the commencement of this Act.” What proceedings were open to a workman before the commencement of this Act against an “undertaker”? Take also clause 4 in which an “undertaker” is first mentioned. How can that clause be read consistently with the notion that employer and undertaker are the same, or that there is only liability on the one and not the other, when it provides for a right of relief at the instance of the undertaker against the employer. There is no difficulty in ascertaining who is the employer of a workman; there may be more in ascertaining who is the undertaker as defined by the Act. But, in my view, both are separately and independently dealt with by the Act. I have already pointed out in M'Gregor v. Dansken, 1 F. 536, what I think was the class intended to be included in the word “undertaker,” and the reason why, in my opinion, that class was put under liability by the statute. That opinion I have seen no reason to
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The opening words of the 7th clause, as I have indicated, create the difficulty, because they may be read (and have been so read) as excluding the application of the Act to anything but employment by an undertaker. I do not think the difficulty is insuperable. On the contrary, I think (keeping the purpose of the Act in view) that it is possible to give all effect to section 7 and yet to retain clause 1 as an effectual provision. As thus: I read clause 7 not as relating to the immediate employment by an undertaker of workmen in certain enumerated occupations, but as the employment of workmen by their employers on behalf or in the interest of an undertaker in these occupations. That makes the undertaker immediately liable to a workman in compensation for injury sustained by him in the course of such employment, it being a part of the undertaker's business that was being executed or carried on, with relief to the undertaker against the actual master or employer of the workman. That enables me to read clause 1 as imposing liability on the employer where no undertaker intervenes. But clause 1 only imposes liability on the employer when the employment is one “to which this Act applies.” Now, I think the Act applies, or may reasonably be held to apply, to the dangerous occupations enumerated in clause 7. Accordingly, when a workman is accidentally injured in the course of his employment in any of the enumerated occupations, I think he has a claim for compensation either against his employer or the “undertaker” with whom the employer has contracted. I feel the difficulty of reaching this conclusion having regard to the language in which the 7th clause of the Act is expressed; and my view is open to criticism on that account. But the Act is a remedial one and entitled to a liberal construction, and I prefer any construction which will make the remedy the Act was intended to provide available to a construction which would destroy it.
Turning now to the case before us, I think the first question should be answered in the negative. I think the respondent was not an undertaker in the sense of the Act. The second question I would answer in the affirmative. The respondent was the employer of the workman (represented by the appellants) who sustained personal injury which resulted in his death while in the course of his employment. The Sheriff-Substitute holds that the respondent is not liable as employer because the employment was not one to which the Act applied. I suppose he would have decided otherwise if he had been of opinion that the employment was one within the provision of the Act. Now, I think the employment in question is one to which the Act applies. The respondent is designed as an “ironfounder and forger, Vulcan Iron Works,” and an iron foundry is a factory within the meaning of the Factory Acts. It does not appear to me material that the accident which caused the injury occurred outside of the respondent's own premises. The deceased was employed on the premises; they were the seat of his labour; and that he was sent outside of them to do work for and on the order of his employer does not make the employers' liability the less. The workman was still engaged “in the course of his employment.”
In my view the Sheriff's judgment should be recalled, and the case remitted to him to find the respondents liable in compensation to the appellants and to fix the amount of such compensation. I am aware that this view is contrary to what has been decided by the English Court of Appeal in the case of Francis v. Turner Brothers, December 16, 1899 [1900] 1 Q.B. 478, a case in all its material features the same as this. The ground on which the decision in that case proceeded was that the injury to the workman had not been received on, in, or about a factory. Now, if there is no liability for accidental injury imposed on anyone but an “undertaker” as defined by section 7 of the Act, then the judgment of the English Court is right, because liability under that section is restricted to cases where the injury is sustained “on, in, or about a factory.” But if employers are liable (as apart from “undertakers”) then I venture to think the judgment referred to is not sound. It was as employers, not undertakers, that the defenders in Turner's case were sought to be made liable, and employers are made responsible by the Act for injury to a workman “arising out of and in the course of the employment,” which was the fact in Turner's case as it is here. The restricting words “on, in, or about a factory” are used only with reference to undertakers.
The second question, however, raises a point of difficulty and importance in the construction of the Workmen's Compensation Act, viz., whether the respondent is liable under the Act as the immediate employer of the deceased workman. It may be that it was intended that the Act should apply to all employers of labour whose workmen are employed and injured in the dangerous undertakings specified in the 7th section of the Act, whether the employers are the proprietors or occupiers of such works (styled “undertakers” in statute), or sub-contractors who take or send their workmen to the premises in order to execute a sub-contract therein.
But the Act is so framed that I find it
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The first and leading section of the statute is qualified by the words with which it commences—“If in any employment to which this Act applies.” It is thus notified at the outset that the Act does not apply to all employments, and we are referred to some later part of the Act for a definition of the kind of employment to which the Act does apply.
The 4th section begins with the same words—“Where in an employment to which this Act applies.”
The 7th section contains the only definition or limitation of the application of the Act. It commences with these comprehensive words—“This Act shall apply only to employment by the undertakers as hereinafter defined,” and the Word “undertakers” is confined in the case of a railway to the railway company; in the case of a factory, the occupier thereof within the meaning of the Factory and Workshops Acts, and so forth—definitions which exclude sub-contractors who contract for the execution of part of the work in such undertakings.
The meaning and scope of this definition appears very clearly if it is paraphrased so as to apply to the facts of the present case. Read thus, the 7th section enacts that “as regards factories this Act shall only apply to employment by the occupier of the factory”—a definition which excludes the respondent.
It has been suggested that the 7th section was introduced simply in order to limit the liability of undertakers. What seems to me to be a conclusive answer is that if this were so the liability under the Act of an employer who is not an undertaker would extend to all kinds of employment without restriction, and that is certainly not the intention of the Act.
The main difficulty arises from certain words which occur in the 4th section of the Act. From the rest of the Act so much is clear that “undertakers” as defined in the 7th section who are employers of labour are liable under the Act to the workmen immediately employed by them. The 4th section (which properly should have followed instead of preceding the 7th) extends their liability to this extent that if they give off any part of their business or work to be executed by a contractor, and in the course of the execution of the work one of the contractors' workmen sustains personal injury in the course of his employment, the “undertakers” are liable if called on by the injured workman to make him compensation although he was not directly employed by them. The compensation which in this case the undertakers are bound to pay is “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.” With the exception of the three words “under this Act” which I have italicised, this passage is quite intelligible. The compensation to be paid by the “undertakers” is such compensation as the contractor would have been bound to pay if he had been sued at common law or under the Employers Liability Act. So far there is no difficulty. Take next the concluding words “or would be payable if such contractor were an employer to whom this Act applies.” If these words were synonymous with “every employer of labour” they would be superfluous, because in the case provided for in the 4th section it is assumed that the contractor is the injured workman's employer. Therefore “an employer to whom this Act applies” (which it is assumed the contractor is not, the word “if” being used) is someone other than an ordinary employer. Where there is no sub-contract the undertaker is the employer, but if he is liable this is not merely because he is an employer but because he is also an undertaker.
I confess that I am unable to assign a meaning to the words “under this Act” in section 4. I cannot find in any other part of the Act liability fixed upon an employer of labour who is not an undertaker. Besides, these words cannot stand alongside of the expression “if such contractor were an employer to whom this Act applies,” which is superfluous and unmeaning if a contractor is liable as employer “under this Act.”
In support of the appellants' view it was maintained that under this section the contractor is bound to indemnify the “undertaker,” and it was argued that this indicates that the contractor is necessarily liable under the Act. But I may point out that the Act does not say that in all cases the contractor shall indemnify the undertakers.
The 4th section contains this proviso—“Provided that the undertakers shall be entitled to be indemnified by any other person” (not necessarily the contractor) “who would have been liable independently of this section.” This, the only express provision as to indemnification, seems to indicate that the contractor is not bound to indemnify the undertaker unless he would have been liable to compensate his workmen on some ground not contained in the 4th section. Now, as I have said, I see no ground except liability at common law or under the. Employers Liability Act. No ground of liability is to be found in the rest of this Act.
Some confusion is caused by the use of the word “undertakers” in some parts of the Act and “employers” in others. The word “undertakers” is not, however, used in contradistinction to “employers to whom this Act applies;” on the contrary, I think the expressions are interchangeable.
I am therefore unable to hold that the respondent is liable as an employer. The Act may have been intended to reach such a case. But on the other hand it is at least equally possible (and this is my opinion) that it was only intended to throw liability, in the absence of fault, upon those large employers of labour
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I would therefore answer both questions in the negative.
The Court pronounced this interlocutor:—
“The Lords having heard counsel for the parties on the stated case, Answer the questions of law therein stated in the negative: Therefore affirm the dismissal of the claim and decern: Find the respondent entitled to his expenses of the stated case on appeal, and remit,” &c.
Counsel for the Appellants— Craigie— Bartholomew. Agent— James Russell, S.S.C.
Counsel for the Respondent— Younger. Agents— Simpson & Marwick, W.S.