Scottish Court of Session Decisions

This was a case stated on appeal from a determination of the Sheriff-Substitute (Gillespie) at Dunfermline in an arbitration under the Workmen's Compensation Act 1897, between Euphemia Pryde or Hayden, widow of Michael Hayden, labourer, 8 Bothwell Street, Dunfermline, claimant and respondent, and George Dick, builder and quarrymaster, 7 Maitland Street, Dunfermline, appellant, in which the claimant claimed compensation in respect of the death of her husband.

In the case stated the Sheriff-Substitute found the following facts to have been admitted or proved:—“The pursuer's husband Michael Hayden, who was a labourer, was killed on 7th July last while engaged in removing ‘tirr’ at Berrylaw or North Urquhart Quarry, through the ‘tirr’ collapsing and falling on him. The defender is a builder and quarrymaster in Dunfermline, and is and has been for some time the occupier of the said quarry, and is the undertaker thereof in the sense of the Workmen's Compensation Act. In May last the defender proposed, as he had done some times before, to take offers for the removal of ‘tirr’—that is, surface earth—from a new part of the quarry. This came to the knowledge of John Penman, a labourer, who was then working to the defender in Berrylaw Quarry. Penman and Hayden (who had not previously wrought to the defender) had an interview with the defender, and after having the part pointed out that the defender wished ‘tirred,’ and the place where the ‘tirr’ was to be put, gave in a written offer to the defender, who accepted it also in writing. The offer and acceptance were in the following terms:—‘ Dunfermline, 25 th May 1902. Dear Sir,—After taking everything into consideration, we think it will take 7 1 2d. per cubic yard to shift the ‘tirr’ you want taken off, as it will be a good long road, and wages are fully better than they were before. Should you accept the offer, we will do our utmost to do everything to your satisfaction. Of course we are not offering for the grey yowe, as we think it will be better to give a separate offer for it should you wish it taken off. Hoping you will let us know by an early reply, and oblige.—Yours truly,

J. Penman. M. Hayden.’

‘ Dunfermline, 29 th May 1902.

Gentlemen,—Your offer of 25th inst. was beyond my calculations, but as I have heard a favourable account of your activity in taking off a ‘tirr,’ I hope you will maintain that reputation, as we will require this ‘tirr’ off in as short a time as possible. I hereby accept your offer on these conditions, and that you deposit the excavations where I pointed out; the face must be kept as clear as before you began. You will be held responsible for any breakages beyond ordinary wear and tear of tools, barrows, and roadways, &c. which I may supply.—I am, yours truly George Dick.’ Hayden and Penman accordingly set to work to remove the ‘tirr’ on Saturday, 30th May, and on Monday, 2nd June, they were joined by a man named Fyfe, who had agreed with them, if they got the job, to work along with them, on the footing that each of them should get an equal share in what was received for the work. They continued to work until Hayden was killed. During a fortnight of that time they employed a man named Justice to help them at a fixed wage of 25s. a-week. With that exception, Hayden, Penman, and Fyfe did the whole work themselves. They supplied nothing but the labour. The whole plant and tools were provided by the defender. The defender and his foreman exercised no control over Hayden and the men who worked with him as to the method which they adopted in removing the ‘tirr,’ nor were they tied down to hours. On several days when it was warm weather they rested for a considerable time in the heat of the day, and worked earlier or later than the defender's quarrymen. There was no stipulation except what may be inferred from the letters above quoted as to whether the agreement could be terminated by either side, and on what notice. The defender's quarrymen generally were on a day's notice on each side. Payments on account were made by the defender to Penman and Hayden practically weekly, in all £20, 15s. The receipts bore to be payments on account for ‘tirring’ a portion of Berrylaw Quarry, and were signed by Hayden. In arriving at the amount to be paid there was sometimes a rough measurement made of the ‘tirr’ removed, sometimes the quantity was estimated by the eye only. After Hayden's death the work was regularly measured, and found to be 740 cubic yards, which at 7 1 2d. came to £23, 2s. 6d. Deducting cash paid weekly, £20, 17s., (which seems overstated by 2s.) a balance due to Hayden and Penman was brought out of £2, 5s. 6d. This was paid to Penman, who granted a receipt for the same. The parties are agreed that if compensation is payable to Hayden's dependents, it is to be on the basis of his average weekly earnings before the accident having been 24s. a-week. Multiplying this by 156, in terms of the statute, brings out £187, 4s.”

On these facts the Sheriff-Substitute held that the deceased was a workman in the sense of the Workmen's Compensation Act 1897, and assessed the compensation to which the pursuer was entitled at the foresaid sum of £187, 4s.

The following was the question of law

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for the opinion of the Court:—“Whether the deceased Michael Hayden was a workman in the sense of the Workmen's Compensation Act 1897?”

The Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37) enacts:—Section 7 (2)—“In this Act … workman includes every person who is engaged in an employment to which this Act applies, whether by way of manual labour or otherwise, and whether his agreement is one of service or apprenticeship or otherwise, and is expressed or implied, is oral or in writing.”

Argued for the appellant—The deceased was an independent contractor. He was not bound to work with his own hands, and the fact that he did so did not make him a “workman” in the sense of the Act— M'Gregor v. Dansken, February 3, 1899, 1 F. 536, 36 S.L.R. 393; Simmons v. Faulds (1901), 17 T.L.R. 352. The language of the Act could not be applied so as to work out its provisions in such a case as the present; the deceased had no weekly earnings. The true relationship of the parties was that the appellants were undertakers, the deceased and Penman were contractors, and Fyfe was a workman. In the case of Evans v. Penwyllt, &c. Brick Co., relied on by the respondent, the work had been done on condition that the workman should get compensation in case of accident.

Argued for the respondent—The judgment in M'Gregor v. Dansken, cit. sup., proceeded on the assumption that the applicant was an independent contractor; here the question was whether the deceased was so, and on the facts that case and the case of Simmons v. Faulds, cit. sup., were widely distinguished from the present case. It was only necessary to satisfy the Court that there was evidence to support the Sheriff's finding, and applying that test the question should be answered in the affirmative— Evans v. Penwyllt, &c. Brick Co. (1901), 18 T.L.R. 58. The definition of “workman” in the Workmen's Compensation Act was wider than that of the Employers' and Workmen's Act 1875 (38 and 39 Vict. cap. 90) and the Employers' Liability Act 1880 (43 and 44 Vict. cap. 42), yet a workman who employed others had been held to be within the definition of the latter Acts— Stuart v. Evans (1883), 49 L.T. (N.S.) 138; Grainger v. Ainsley (1880), 6 Q.B.D. 182. The benefit of the Act was not confined to workmen under contract of service— M'Cready v. Dunlop, June 16, 1900, 2 F. 1027, 37 S.L.R. 779.

At advising—