Scottish Court of Session Decisions

This was a case stated for appeal by the Sheriff-Substitute ( Hamilton) at Edinburgh in an arbitration under the Workmen's compensation Act 1897, in which Anne, David, and Marion Greenhill, respondents, claimed from the Caledonian Railway Company, appellants, the sum of —171, 12s., in respect of the death of their father James Greenhill, lorryman.

The case stated—“The deceased James Greenhill was at the time of his death a lorryman in the employment of Wordie & Company, carting contractors, Edinburgh. The appellants, who are carriers, charge a through rate for the conveyance of certain goods and, inter alia, of barrels of beer by their railway. This through rate is inclusive of all charges for collection and

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delivery of the goods. Some of the work of collection and delivery is done by the appellants themselves with their own horses and carts. In Edinburgh the appellants have seventy horses engaged in this work. The said firm of Wordie & Company had a contract with the appellants for the collection and delivery from and to the public, within a certain radius of the station, of goods sent or to be sent by rail. It is in the option of the persons using the railway to send their goods to the station by the carts of the railway company or by the carts of their carting contractors. The rate paid for the through transmission of the goods is the same in either case, and the appellants' canvassers compete with those of the said Wordie & Company for the work of carting, collecting, and delivering. The consignors of the beer in question had adopted the alternative of having their goods sent to the station by Wordie & Company for transmission by the appellants, and they paid the through rate. Under this contract Wordie & Company received from the appellants a certain portion of the through rates paid by the public in the cases where they collected or delivered goods transmitted or to be transmitted by the appellants. On 21st November 1898, while the deceased was engaged transferring a barrel of beer from a lorry on the appellants' platform, and within their goods station at Lothian Road, Edinburgh, to a goods train standing beside said platform, and also within said station, he received such injuries from the barrel of beer falling upon him that he died next day. Said barrel of beer had been collected, and was being unloaded by the deceased for transmission by railway, in pursuance of said contract between the appellants and his employers. The wages of the deceased for the three years next preceding his death were 21s. per week. The respondents Anne Greenhill and Marion Greenhill were wholly dependent upon deceased at the time of his death. Marion Greenhill is in minority. The respondent David Greenhill was earning 8s. per week, and was therefore only partially dependent upon deceased at the time of his death. I held that the collection and delivery of goods under the contract between the appellants and Wordie & Company was a part of or process in the business carried on by the appellants within the meaning of the Workmen's Compensation Act.

The appellants denied liability under the Workmen's Compensation Act 1897 to pay compensation to the respondents, on the ground that carting was not an essential part of their work as railway carriers, 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 application was on the motion of the appellants intimated to Wordie & Company, who lodged a notice of appearance, and were represented at the trial of the case.

I pronounced the following interlocutor:—‘ Edinburgh, 1 st August 1899.— … ‘Repels the defences, and decerns and ordains the defenders the Caledonian Railway Company to pay to each of the pursuers Anne Greenhill and Marion Greenhill the sum of Eighty-one pounds eighteen shillings (£81, 18s.), and in respect the said Marion Greenhill is a minor, directs the sum payable to her to be paid to the Sheriff-Clerk of Midlothian, to be by him invested in the Post Office Savings Bank in his own name as such Sheriff-Clerk in terms of the Workmen's Compensation Act 1897.’

The question of law for the opinion of the Court was— … (3) Whether the work in which the deceased James Greenhill 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 carriers within the meaning of the exception in said section 4 of the above-mentioned Act?”

By section 4 of the Workmen's Compensation Act 1897 it is enacted—“Where in any employment to which this Act applies, the undertakers, as hereinafter defined, contract with any person for the execution by or under such contractor 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 appellant—The collection of goods by carts and taking them to and from the stations was no part of the business of a railway company. By the Regulation of Railways Act 1873 (36 and 37 Vict. cap. 48), sec. 3, a railway company was defined as the owner or the lessee of a railway, and the traffic carried by them included passengers and things conveyed by railway. The business which a railway company was empowered to undertake by statute was the carriage of goods from station to station along the railway line. While the collection of goods by means of carts might be ancillary and incidental to the business, it did not form part of it. They were therefore not liable.

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Counsel for the respondents were not called upon.