Scottish Court of Session Decisions

This was an appeal under the Workmen's Compensation Act 1897 in the matter of an arbitration before the Sheriff-Substitute ( Burnet) at Aberdeen between James Petrie, claimant and respondent, and David Weir, builder, Aberdeen, appellant.

The facts stated as proved were as follows :—“The defender occupies premises at 23 Claremont Street, Aberdeen, in which he carries on the business of dressing stones for building purposes; the stones are dressed by manual labour, and the defender employs in that work a number of workmen, of whom on 4th July the pursuer

Page: 796↓

was one; the premises consist of a yard in which the stones are dressed, and include an engine-house which is entered from the yard, and which contains a grindstone on which the tools used by the workmen are sharpened from time to time, and a gas-engine used for the purpose of driving the grindstone. The engine and grindstone are under the charge of a young man of seventeen years of age or thereby, whose duty it is to make regular visits to the different benches at which the stonecutters dress the stones, carry off the blunt tools, sharpen them on the grindstone, and return them when sharpened to the workmen. The engine and grindstone are in daily and constant use as part of the regular work of the establishment. No other mechanical power is used in or upon the premises. On 4th July 1899 the pursuer, while engaged in dressing stones on the pursuer's premises, was accidentally struck on the left eye by a piece of metal from a chisel, and was so severely injured that his eye had to be removed six days afterwards, and since the date of the injury he has been unable to earn wages as a stone-dresser.”

Upon the foregoing facts the Sheriff-Substitute held (1) that the said premises were a non—textile factory within the meaning of the Factory and Workshops Act 1878, section 93 (3), and therefore constituted a factory within the meaning of the Workmen's Compensation Act 1897, section 7, and the defender, being the occupier of said premises, was an undertaker in the sense of the last-named statute; (2) that the employment in which the pursuer was engaged at the time of the accident was an employment to which the last-named Act applies, and the said accident having arisen out of and in the course of the employment, the defender was liable to pay compensation in accordance with the said last-mentioned Act.

The questions of law for the opinion of the Court were—“(1) Whether the defender's premises were a factory within the meaning of the Workmen's Compensation Act 1897? and (2) Whether the employment in which the pursuer was engaged at the time of the accident was an employment to which the said Act applies ?”

The Workmen's Compensation Act 1897, sec. 7, enacts that the Act shall apply only to the employment by “undertakers” on, in, or about, inter alia, a “factory,” and defines a ‘factory’ to have the same meaning as in the Factory and Workshop Acts 1878 to 1891, “and further defines ‘undertakers’ to mean, in the case of a factory,’ the occupier thereof within the meaning of the Factory and Workshop Acts 1878 to 1895.”

The Factory and Workshops Act 1878, sec. 93, defines the expression “non-textile factory” to include (sub-sec. 3) “any premises wherein … any manual labour is exercised by way of trade, or for the purposes of gain in or incidental to … (c) the adapting for sale of any article, and wherein … steam, water, or other mechanical power is used in aid of the manufacturing process carried on there.”

Argued for the appellant—The operation of sharpening tools was not “in aid of” the manufacturing process. What was meant by these words was that the mechanical power should be used directly in the course of the process, or at least directly assist it. If the appellant had sent his tools to be ground elsewhere, his premises would not have been within the definition of a factory. It was an anomalous result that because he chose to sharpen them on the premises that should render him liable.

Counsel for the respondent was not called upon.