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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Edinburgh and District Tramways Co., Ltd v. Mooney [1901] ScotLR 39_260 (20 December 1901)
URL: http://www.bailii.org/scot/cases/ScotCS/1901/39SLR0260.html
Cite as: [1901] ScotLR 39_260, [1901] SLR 39_260
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SCOTTISH_SLR_Court_of_Session
Page: 260↓
Court of Session Inner House Second Division.
[Sheriff-Substitute at Edinburgh.
v.
Facts:
A car-driver in the employment of a tramway company while oiling his car in the car-sheds, where the cars were kept while not in use, was injured by a travelling platform called a car-traverser, which was worked by a cable driven by a steam—engine in the immediate vicinity of the car-sheds. No other mechanical power was used in the car-sheds, but in the repairing workshop or machine-room, which was divided from the car-sheds by a wall, mechanical power was used for the purpose of repairing any parts of the cars which required repair, such parts being taken to the machine-room for that purpose and thereafter affixed to the cars in the sheds.
In a claim by the car-driver for compensation under the Workmen's Compensation Act 1897, held ( diss. Lord Moncreiff) that the accident in question occurred on, in, or about a “factory” within the meaning of section 93 (3) ( b) of the Factory and Workshop Act 1878, and section 7 of the Workmen's Compensation Act 1897, and that the Tramway Company were consequently liable in compensation.
This was an appeal in an arbitration under the Workmen's Compensation Act 1897, before the Sheriff-Substitute at Edinburgh ( Henderson), between the Edinburgh and District Tramways Company, Limited, appellants, and James Mooney, car-driver, claimant and respondent.
The facts proved, as stated by the Sheriff-Substitute, were as follows:—“The respondent James Mooney was in the employment of the Edinburgh and District Tramways Company as a cable car-driver. At about 7 a.m. of 20th March 1901, while Mooney was engaged oiling his car preparatory to its being taken out for the day he was struck by a travelling platform called a car-traverser, and his right leg was so injured between the car-traverser and a side wall that it had eventually to be amputated below the knee, and in consequence he has suffered permanent disablement from his then employment. The place where this accident occurred was in the car-sheds of his employers at Shrubhill, Leith Walk, Edinburgh. These sheds consist of a covered-in building 550 feet long
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by a 160 feet wide. Down the centre of this erection there runs a well 33 feet wide and 27 inches lower in level than the flooring upon each side of it. In this well the travelling platforms or car-traversers are moved backwards and forwards by means of a cable driven by a steam-engine in the immediate vicinity of the car-sheds. The cars when brought to the sheds are pushed from the rails on which they have been brought in from the street on to the corresponding rails on the car-traversers, and the traverser is then moved to whatever position in the sheds the car is intended to be taken to, and the ends of the rails on the traverser having been placed directly opposite similar rails in the flooring of the shed, the car is then pushed into its desired place on either side of the well; when cars are taken out of the sheds a like process is gone through, the operation being reversed. It was while standing in the well above described at the end of his car that Mooney was injured. At intervals throughout the length of the sheds brick partitions exist on each side of the traverser well and at right angles thereto, which partitions form the basis from which the various portions of the roof of the sheds spring, the roof consisting of a series of angular glazed ridges, each partitioned off portion being covered by a separate ridge. At the west end of these sheds and at the north side thereof, and at a point where the traverser well ceases to be covered in by a roof and to be closed in from the open air, there is what is variously called a machine-room or workshop, which is divided from the sheds by a somewhat heavier brick wall than those which partition off the spaces in the sheds. This brick wall also is higher than the partition walls in the sheds, and the roof (which is similar to the roof of the sheds) springing from it is consequently higher than the shed roof, and therefore not a continuation of it. The flooring of this machine-room or workshop is also lower than that of the sheds, being on the level of the traverser well which passes along one side of it. The area of this machine-room is about 75 feet long and about 50 feet wide. Access to the machine-room is got by two large doors 7 feet wide, one in the wall dividing the machine-room from the sheds, and the other in the outside wall next the uncovered open part of the traverser well. These doors are kept closed by iron shutters from top to bottom, and entrance is obtained by means of small wickets in them. In the machine-room there are lathes, turning machinery, and boring machinery, which are used in connection with the repairs executed in the machine-room, which are put in motion by two electric motors. A foreman and eight or twelve men constitute the staff in this machine-room, and their duties are to repair the grippers, screws, and other parts of the cars, the pieces requiring repair being put right and mended in the machine-room and then affixed to the cars in the sheds. This is the sole purpose of the machine-room. No mechanical power is used in the sheds themselves apart from the power employed in moving the car-traverser. In addition to the affixing of the repaired portions above referred to as taking place there, the platforms, woodwork, and paint of the cars are also repaired in the sheds. From 90 to 100 cars are nightly housed in the sheds, and cars from almost all parts of the company's system are brought there for such repairs as have been described. Mooney was only a car-driver, and had nothing to do either with repairs or with the sheds or with the machine-room. The spot where Mooney was injured is 374 feet from the wall which divides the machine-room from the car-sheds.” On these facts the Sheriff-Substitute held in law—“(2) That the accident took place in or about a portion of the company's premises which formed a factory within the meaning of section 93, sub-section (3) ( b), of the Factory and Workshop Act 1878, and therefore within section 7 of the Workmen's Compensation Act 1897, and that the claimant was entitled to succeed in his claim for compensation.”
The question of law for the opinion of the Court was—“2. Did the accident in question occur on, in, or about a factory within the meaning of section 93, sub-section (3) ( b), of the Factory and Workshop Act 1878?”
The Workmen's Compensation Act 1897, sec. 7, enacts—“(1) This Act shall apply only to employment by the undertakers as hereinafter defined, on or in or about ( inter alia) a factory.” “(2) In this Act … ‘factory’ has the same meaning as in the Factory and Workshop Acts 1878 to 1891.”
The Factory and Workshop Act 1878, sec. 93, enacts, inter alia—“The expression ‘non-textile factory’ in this Act means … (3) also any premises wherein or within the close or curtilage or precincts of which any manual labour is exercised by way of trade, or for purposes of gain in or incidental to the following purposes or any of them—that is to say, ( a) in or incidental to the making of any article or of part of any article, or ( b) in or incidental to the altering, repairing, ornamenting, or finishing of any article, or ( c) in or incidental to the adapting for sale of any article, and wherein or within the close or curtilage or precincts of which, steam, water, or other mechanical power is used in aid of the manufacturing process carried on there.”
Argued for the appellants—1. The appellants' workshop was not a “factory.” In order to bring it within the scope of sec. 93 (3), it must be shown that the process carried on was that of making articles for sale, or repairing articles for customers; and further, that it was carried on “by way of trade or for purposes of gain.” Neither of these elements was present here. The appellants' business was that of running cars for hire, and the repairing of these was merely incidental to that business. Nor could such repairing be said to be for purposes of gain, although the appellants might effect a saving by doing their own repairs— Caledonian Railway Company v. Paterson, November 17 1898, 1 F. (J.C.) 24, 36 S.L.R. 60; Henderson v. Corporation of Glasgow,
Page: 262↓
July 5, 1900, 2 F. 1127, 37 S.L.R. 857; Nash v. Hollinshead, ( 1901) 1 K.B. 700. (2) But assuming that the workshop was a factory, the car-shed where the accident occurred was not part of the factory. The car-shed was a mere coach-house for the cars, and had no connection with the workshop— Milner v. Great Northern Railway Company (1900), 1 Q.B. 795; Barclay, Curle, & Company v. M'Kinnon, February 1, 1901, 3 F. 436, 38 S.L.R. 321. The appellants did not dispute that the accident arose out of and in the course of the respondent's employment. Argued for the respondent—The Sheriff was right. The manufacturing process spoken of in sub-section 3 ( c) must be read in connection with sub-section 3 ( b), which expressly mentioned repairing as included in that expression. It was not essential that the process should be a manufacturing process in the strict sense— Weir v. Petrie, June 19, 1900, 2 F. 1041, 37 S.L.R. 795. Further, the work carried on was by way of trade or for purposes of gain. Clearly it would be so if the repairing were done by a person not the owner of the cars. The result should be the same where the company did their own repairs. It was sufficient if the operation resulted in a saving to the company— Henderson, cit. supra, per Lord President at p. 1134; George v. Macdonald, November 23, 1901, 39 S.L.R. 136. (2) If the workshop was a factory, the whole premises—workshop and car-sheds—must be regarded as unum quid. In any view the sheds were in the precincts of or about the factory.
At advising—
The Sheriff-Substitute has given a most clear and comprehensive series of findings in fact, describing with great fulness the place and the work carried on in it. Upon these facts I agree with the decision at which he has arrived that the defenders had at their works a factory in the sense of the Factories Act. I am unable to agree with the argument which was addressed to the Court by which it was sought to establish that this case was similar to that of the Caledonian Railway Laundry in Glasgow, in which it was attempted to have the company condemned in a penalty because they had not complied with the requirements of the statute in posting rules, &c. That case was decided on the ground that it was not established that this part of the hotel establishment was carried on for gain or profit, but only for the convenience of the general business of the hotel, and that therefore it was not a public laundry falling under the statute. I do not think that that case is at all analogous to the present, where engineering works such as are described were established by the defenders.
Upon the second point I am also satisfied that the Sheriff's decision is right. This machine shop was so placed that when cars were brought in and taken out they passed through the space occupied by the machine shop. The mechanical power generated in the machine shop was carried to the carriage shed to haul the cars opposite the sidings in which they were to lie and to haul them out again. The mechanics took any parts requiring repair to the machine shop and brought them back to refix them. It is true that the car at which the accident happened was 374 feet from the wall of the machine shop, but this was an accidental circumstance. It might have been close to it. The very large number of cars requiring to be housed in the shed was the only reason why some cars had to be placed at some distance from the machine shop, a large number of lyes being necessary, but the shed itself was in direct contiguity with the machine shop, and the work of the machine shop was in direct relation to the cars, whatever might be the particular position of each car in the shed.
I am of opinion that the question of law should be answered in the affirmative.
2. But on the other point I have more doubt. The material words are “premises wherein manual labour is exercised in making, repairing, or adapting for sale of any article by way of trade or for purposes of gain wherein steam, water, or other mechanical power is used,” &c., “in aid of the manufacturing process,” &c.
I do not say that read in one way these words will not bear the meaning your Lordships put upon them, but as far as I know they have not hitherto been so interpreted. If they had been so interpreted, this and similar workshops would have been dealt with and inspected as factories. I have hitherto understood that the
Page: 263↓
That is the footing on which I understood that the case of the Caledonian Railway Company v. Paterson, 1 F. (J.C.) 24 (in which I concurred) was decided. The Factory and Workshop Act of 1895, section 22, sub-section 1, enacts that with respect to any laundry “carried on by way of trade or for purposes of gain” certain provisions of the Factory Acts, including powers of inspectors and fines, should apply. The laundry in question was attached to one of the Railway Company's hotels, and a complaint was lodged to the effect that in this laundry the Railway Company had failed in terms of the Acts to affix an abstract of the Factory and Workshop Acts, and therefore became liable in a fine. It was held that the laundry was not in the sense of the statute carried on by way of trade or for purposes of gain. The work done in it was (1) washing of hotel linen, (2) washing of the clothing of the hotel staff, and (3) washing of the clothing of visitors to the hotel. The first purpose is the one most applicable to this case. In order to carry on the trade or business of hotelkeepers the company required to have their hotel linen washed (no doubt at considerable expense), just as they required to keep the furniture of the hotel in a good state of repair. That is exactly what the appellants in this case are doing. They do not sell or hire out tramway cars, but they require to keep their rolling-stock in good repair, and they do this with the assistance of their own workmen in their own workshop. I therefore cannot see any solid distinction between the two cases.
Your Lordships, however, are prepared to give a more liberal interpretation to the Factory and Workshop Act, and I cannot say that I regret it, because for the purposes of the Workmen's Compensation Act work carried on in such an establishment is just as dangerous and likely to cause injury to the workmen employed in or about it as work in premises in which the trade carried on is making or repairing articles for sale.
But as your Lordship's judgment finding these premises to be a factory will be attended with not unimportant consequences, such as inspection, I have felt bound to express my dissent.
The Court answered the question of law in the affirmative and affirmed the award of the arbitrator.
Counsel for the Appellants— Campbell, K.C.— Spens. Agents— Macpherson & Mackay, S.S.C.
Counsel for the Claimant and Respondent— M'Lennan— Munro. Agents— Cumming & Duff, S.S.C.