Scottish Court of Session Decisions

This was an appeal in an arbitration under the Workmen's Compensation Act 1897 before the Sheriff-Substitute at Glasgow ( Guthrie), between Agnes Stewart, widow of the deceased Robert Stewart, coal porter, claimant and appellant, and The Darngavil Coal Company, Limited, Glasgow, respondents.

The facts stated by the Sheriff-Substitute as admitted or proved were as follows:—“1. That the appellant's husband, Robert Stewart, was on 23rd July 1901 a labourer employed by John M'Keown, who was himself a coal porter, contracting with the respondents to load bunker coal from the quay breast at berth 38 of Glasgow Harbour into the steamers of the Dublin and Glasgow Steam Packet Company at certain rates per ton. 2. That M'Keown contracted with other owners of steamships and the

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merchants supplying them on similar terms, and that he employed labourers, for whose wages he alone was responsible, by the hour, day, or week. 5. That the respondents had a contract at fixed prices extending over a year, from 18th March 1901, to supply the vessels of the Dublin and Glasgow Steam Packet Company with bunker coal free on board; that they brought the coal to the quay on carts, and employed M'Keown under the aforesaid agreement to put the coal from the carts upon the quay breast, and to trim and load them with planks and barrows, or in the case of one of the said company's steamers, by shoots, into the bunkers, and that no machinery was being used by M'Keown or the deceased at the time of the accident. 6. That the planks, barrows, and other plant used for the purpose of trimming and loading were supplied by the owners or agents of the several steamers. 7. That a steamer of the said Steam Packet Company was then coming up the river Clyde, and arrived about an hour after the accident, and that the deceased, after having been engaged in bringing the coal from the carts and laying them upon the breast of the quay and trimming them ready to be shipped, was waiting on the quay, and fell into the river and was drowned. 8. That the berth No. 38 was not at the time of the accident occupied by any vessel.”

Upon these facts the Sheriff-Substitute found in law that the respondents were not undertakers in the sense of the Workmen's Compensation Act 1897, and accordingly assoilzied them.

The questions of law for the opinion of the Court were:—“(1) Upon the facts stated or admitted, were the respondents undertakers of the employment at which the deceased met his death within the meaning of the Workmen's Compensation Act 1897? (2) In the circumstances above narrated, was the quay a factory in the sense of the said Act? (3) If so, were the respondents the occupiers of the said quay at the time the said accident happened?”

The Workmen's Compensation Act 1897 enacts Section 4—“Where, in an 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 … by such contractor, or would be so payable if such contractor were an employer to whom this Act applies.” Section 7 (2)—“Undertakers” in the case of a factory “means the occupier thereof within the meaning of the Factory and Workshop Acts 1878 to 1895,” and “Factory includes any … quay, … to which any provision of the Factory Acts is applied by the Factory and Workshop Act 1895 …”

The Factory and Workshop Act 1895, section 23 (1), enacts that certain provisions of the Factory Acts with respect to accidents, inspection, &c., “shall have effect as if every dock, wharf, quay, and warehouse … were included in the word factory …; and for the purpose of the enforcement of those sections the person having the actual use or occupation of a dock, wharf, quay, or warehouse, … shall be deemed to be the occupier of a factory.”

The appellant maintained (1) that a quay is per se a factory— Bartell v. W. Gray Co. (1902), 1 K.B. 225; Merrill v. Wilson, Sons, & Co. (1901), 1 K.B. 35; (2) that the respondents were occupiers of the quay within the meaning of section 23 (1) of the Factory and Workshop Act 1895— Raine v. Jobson & Co. (1901), A.C. 405; and that they were consequently liable under section 4 of the Workmen's Compensation Act as undertakers.

Counsel for the respondents were not called upon.