Scottish Court of Session Decisions

Section 4 of the Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), enacts as follows:—“When in an employment to which this Act applies the undertakers, as hereinafter defined, contract with any person for the erection 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 the Act to those workmen in respect of any accidents 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.”

By section 7, sub-section (2) of the Act, “undertakers” “in the case of a building means the persons undertaking the construction, repair, or-demolition.

Richard Wallace, building contractor, Edinburgh, appealed from the decision of the Sheriff-Substitute at Edinburgh ( Maconochie) in an arbitration under the Workmen's Compensation Act 1897, between Mrs Anna Elizabeth Betts or Stalker, widow of Knox Stalker, plasterer, Edinburgh, as an individual, and as legal guardian and administrator-in-law of her pupil child Bernard Edward Stalker, and the said Richard Wallace, in which the claimant Mrs Stalker claimed, on behalf of herself and her child, compensation from the appellant for the death of her husband.

In the case stated for appeal by him the Sheriff-Substitute stated as follows:—At the proof it was admitted … that the deceased at the time of the accident in question was engaged in an employment to which the provisions of the Workmen's Compensation Act applied; that the accident arose out of and in the course of the employment; and that the sum sued for was the sum due under the Act by the person who should be found liable to pay compensation. The other facts admitted or proved are as follows:—A tenement of dwelling-houses was being constructed by the appellant at 8 Heriot Hill Terrace, Edinburgh. On 10th March 1900, when the accident to Stalker occurred, the tenement was over 30 feet in height, and scaffolding was being used in its construction. The tenement was being constructed by the appellant on his own ground and for his own behoof, the mason and joiner work being executed by his own men. He is a builder and public works contractor, and never undertook to build houses for private persons, his business, except in so far as he built houses for himself, being entirely confined to the execution of public works. In July 1899 Messrs Meldrum & Son offered to execute the plaster work on said tenement at certain rates, and on 24th July the appellant accepted their offer. Other contractors offered to execute other branches of the work, such as the plumber work, painting work, asphalting, bellhanging, and gasfitting, of said tenement, and the appellant accepted offers by separate contractors for such branches. The appellant supplied the battens for Messrs Meldrum & Son's scaffolding, but Messrs Meldrum & Son supplied the trestles on which the battens were laid, and themselves erected the scaffolding and shifted the same. Messrs Meldrum were engaged in carrying out their said contract for the plaster work on 10th March 1900, when the deceased Knox Stalker, one of the workmen in their employment, fell from the landing of the first flat and received injuries from which he died on the same day. The appellant had no control over the workmen employed by Messrs Meldrum on the plaster work, or over the workmen employed by any of the other contractors. The respondent is the widow of the said Knox Stalker, and she and her pupil child, Bernard Edward Stalker, were wholly dependent on his earnings at the time of his death.

In these circumstances the Sheriff-Substitute

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found in law that the appellant was the person undertaking the construction of said tenement within the meaning of the Act, and that he was liable in compensation to the respondent, decerned against him for the sum claimed, viz., £300—payable £100 to the respondent and £200 to her pupil child Bernard Edward Stalker; and found the appellant liable to the respondent in expenses.

The question of law for the opinion of the court was—Whether upon the facts proved or admitted, the deceased was at the date of his death engaged in work of which the appellant was the undertaker within the meaning of the Act?

Argued for the appellant— He was not the undertaker in the sense of the Act. If a building owner employed his own servants to do the work of construction he was then the undertaker de facto— Malcolm v. M'Millan, January 30, 1900, 37 S.L.R. 383. And where a person who wished to have a building erected gave off contracts for specific portions of the whole work to different independent contractors, then these contractors were “undertakers”— Mason v. A. R. Dean, Limited [1900], 1 Q.B. 770; but if he contracted with one contractor to construct the building, and that contractor sub-contracted with various sub-contractors for the execution of various parts of the work, then the contractor, and not the sub-contractors, was the “undertaker”— Cass v. Butler [1900], 1 Q.B. 777; in other words the “undertakers” were the persons who contracted directly with the person, for whom as owner the building was being erected, for the performance of the whole or any specific portion of the work to be done. In the present case the appellant, who was the owner of the building, had given off a specific portion of the work, viz., the plaster—work, to an independent contractor, viz, Messrs Meldrum & Sons, and the latter, who had undertaken this portion of the work and employed in executing it their own men, over whom the appellant had no control, were the proper “undertakers” in the sense of the Act, and the appellant, who was the owner of the building was not the “undertaker” in that sense:— Macgregor v. Dansken, February 3, 1899, 1 F. 536; Mason v. A. R. Dean, Limited [1900], 1 Q.B. 770, opinion of Romer, L. J. 776; Pearce v. London and South Western Railway Company, [1900] 2 QB 100.

Argued for the claimant and respondent—The appellant was the undertaker in the sense of the Act — Burns v. North British Railway Company, February 20, 1900, 37 S.L.R. 448. The cases of Macgregor and Mason quoted on the other side, supported the claimant's view by contrast. In these cases the person who wished the building erected had taken no part in the building operations, but had let out the whole work to independent contractors. But here the appellant undertook and executed the work himself, and merely contracted with another for a portion of the work. He was therefore liable under section 4 of the Act. Messrs Meldrum & Sons were not the undertakers, they were in the same position as the sub-contractors in the case of Cass.