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 ( Maconochie) at Edinburgh, between John Brodie, goods guard, claimant and appellant, and the North British Railway Company, respondents.

The facts stated as proved or admitted were as follows “On January 15th 1900 the appellant was injured on a siding of the Coltness Iron Company's mineral line while in the performance of his duty as a goods guard in the employment of the responents. Said line is a private line of railway belonging to the said Coltness Iron Company, and it was not constructed and is not carried on by them or by any other company under the powers of any Act of Parliament. Said mineral line has a communication with the Caledonian Railway Company's system at a point near Newmains, shown on the plan produced, and also at a point near Prospecthill, also marked on said plan. Said mineral line has a communication with the respondents' system at a point near Newmains marked on said plan, but it has no other communication with the respondents' line. The Caledonian Railway Company are in the habit of sending daily a small part of their through goods traffic from the point first above mentioned to the point second above mentioned, both on their line, over the said mineral line, instead of sending it exclusively over their own line, which is somewhat longer, but they do not do this in virtue of any Act of Parliament or of any arrangement between them and the owners of the private line. The respondents, by means of their own engines and trucks, deliver at the Coltness Iron Works, by said private line of railway, ore consigned to the Coltness Iron Company from various parts of the country, and take away in a similar way mineral consigned by the Iron Company to various consignees. The respondents have no arrangement with the owners of the private line with regard to the carriage of goods other than those above mentioned, and they do not use the said line for the carriage of such other goods. The accident occurred on a siding connected with the said private line at a point about three-quarters of a mile from the only point at which the main mineral line is connected with the respondents' system.”

Upon the foregoing facts the Sheriff-Substitute held in law that “the said accident did not take place on, in, or about a railway within the meaning of section 7 (2) of the Workmen's Compensation Act 1897, and dismissed the application with expenses to the respondents.”

The question of law for the opinion of the Court was—“Whether the accident took place on, in, or about a railway within the meaning of the Workmen's Compensation Act 1897?”

The Workmen's Compensation Act 1897 enacts (sec. 7)—“This Act shall apply only to employment by the undertakers, as hereinafter defined, on or in or about, inter alia, a railway.” Sub-sec. 2—“‘Railway’ means the railway of any railway company to which the Regulation of Railways Act 1873 applies, … and ‘railway’ and ‘railway company’ have the same meaning as in the said Act of 1873.”

By the Regulation of Railways Act 1873, section 3, “the term ‘railway company’ includes any person being the owner or lessee of, or working any railway in the United Kingdom constructed or carried on under the powers of any Act of Parliament, and the term ‘railway’ includes every station, siding, wharf, or dock of or belonging to such railway, and used for the purposes of public traffic.”

Argued for the appellants—The Sheriff was wrong in holding that the accident did

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not occur “on or in or about” a “railway” within the meaning of the Act. The siding in question was clearly a siding “of” the respondents' company although not “belonging to” them. It was enough to satisfy the definition if the siding was used, as here, for public traffic under the law applicable to railway rates. The fact that it was used also by the Caledonian Railway showed that it was used for public traffic. The respondents worked the siding with their own locomotives and waggons, and it was only of use in connection with their system. The siding was pro tempore the siding of the respondents, who were in the position of lessees, being on the private line by arrangement with the owners. 2. Alternatively, the accident occurred “about” the respondents' railway, although the locus was in fact three-quarters of a mile from their line; the question would have been the same if the distance had been 100 yards. The word “about” did not refer to distance, but to the connection between the workman's employment and the accident— Middlemiss v. Berwickshire County Council, Jan. 17, 1900, 2 F. 392. If the accident had occurred while a through train was running over the system of another railway company the respondents would have been liable. It was therefore impossible to hold that the workman could not recover unless he were actually on his employers' railway.

Argued for the respondents—The Sheriff-Substitute was right. This was not a railway within the meaning of the Act. It did not “belong to” the respondents, for it was found as matter of fact to belong to the Coltness Company. It was not constructed or carried on uder Act of Parliament, and was not under the Regulation of Railways Act. The word “of,” relied on by the appellant, referred to the case of a railway company leasing or exercising running powers over the lines of another company for purposes of public traffic. This line was not so used. The only traffic was the private traffic of the Coltness Company. 2. Neither was the locus of the accident “about” the respondent's railway. The word “about” implied local contiguity, and did not refer to the connection between the accident and the workman's employment— M'Millan v. Barclay, Curle, & Company, November 10, 1899, 2 F. 91; Fenn v. Miller [1900], 1 Q.B. 788. The policy of the Act was to make the railway company responsible for accidents sustained by their workmen while employed on a public line which was subject to statutory regulation, but not otherwise.

At advising—