Scottish Court of Session Decisions

This was a case stated for appeal by the Sheriff-Substitute of the Lothians at Edinburgh ( Maconochie) in an arbitration under the Workmen's Compensation Act 1897, between William Colvine, lorryman, 46 Albert Street, the claimant and appellant, and Anderson & Gibb, drysalters, Blackfriars Street, Edinburgh, respondents.

The following facts were admitted or proved:—“(1) That appellant was a lorry-man in the employment of Messrs Cowan & Company, contractors, North Bridge, Edinburgh, and the respondents describe themselves in their trade documents as drysalters, oil, paint, varnish, and chemical merchants and manufacturers, and as paint and varnish manufacturers and wholesale drysalters.

(2) To enable them to carry on their business at Nos. 19 and 21 Blackfriars Street, the respondents contracted with Messrs Cowan & Company for the hire of a lorry and man.

(3) That for a considerable time previous to 18th March 1902 Messrs Cowan & Company had, in fulfilment of said contract, sent the appellant to the respondents' premises every morning, and that while there he was under the direction of the respondents and their foreman.

(4) That the appellant's average weekly wage for the twelve months prior to 18th March 1902 was 22s. 8d.

(5) That on said 18th March the appellant was in the ordinary course of his duty removing casks of white lead, weighing about 2 cwt. each, from the respondents' premises to his lorry, which was standing in the street opposite Nos. 19 and 21, when one of the casks slipped and so crushed his left hand that the first and middle fingers had to be amputated.

(6) That as the result of the accident the pursuer was at the time when the evidence was heard totally incapacitated for his work as a carter.

(7) That the respondents have two sets of premises in Blackfriars Street, viz., Nos. 19 and 21 on the one side of the street, and on the opposite side, 20 to 30 yards further down the street, a yard in which large barrels of oil and heavy chemicals were stored. On the yard door was painted ‘office and warehouse at Nos. 19 and 21 opposite.’

(8) That the premises at Nos. 19 and 21 Blackfriars Street consisted of two large rooms on the ground floor and two cellars in the basement.

(9) That in the northmost room on the ground floor there was a counter, over which the goods were sold to customers, and that in the southmost room (which is connected with the north room by a door not used by the public) there was also a counter, which was used only for office purposes, and for making up small quantities of paint, spirit varnishes, and roller composition from materials bought elsewhere.

(10) That almost the entire business of the respondents (viz., between 85 and 90 per cent.) consisted of sales to customers of goods for their own use, and not to be sold by them again.

(11) That there were goods kept in all the rooms at Nos. 19 and 21, the heavier casks being kept mainly in the basement. The goods consisted mainly of casks of oil, all of which were open and ready for the delivery of small quantities; casks of white lead, of which there were generally ten or twelve in the premises, four, one of each quality, being open for retail sales; small parcels of saltpetre, soda, and varnish; paints, none of which were sold in large quantities from the premises, and starch, which was sold in 56 lb. cases.

(12) That though a considerable amount of goods were sold and delivered over the counter the greater part of them were delivered by lorry or by rail to the buyers.

(13) That one of the firm and a traveller go round the country for orders, and that respondents' staff in Blackfriars Street consisted of two clerks, a foreman, three porters, a boy, and the lorryman from Messrs Cowan & Company.

(14) That on one occasion since the respondents were carrying on business in the same way as at present the inspector of factories called to make inquiries as to whether the premises fell within any of the provisions of the Factory and Workshop Acts, and after examination said to the respondents' foreman, ‘I have nothing to do with the premises;’ and that the respondents have never been notified by the said inspector that their premises fell within the provisions of these Acts, and that they have never been required to do any of the things required of employers whose premises fall within the provisions of those Acts.”

On these facts the Sheriff held “that the respondents' premises were not a warehouse to which any provision of the Factory Acts is applied by the Factory and Workshop Act 1895 within the meaning of section 7 of the Workmen's Compensation Act 1897, and dismissed the petition.”

The following was the question of law:—“‘Whether upon the facts stated the accident to the appellant took place on, in, or about a factory within the meaning of section 7 of the Workmen's Compensation Act 1897.’”

Argued for the appellant—The accident happened in a warehouse within the mean

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ing of the Act. The meaning of warehouse was a place where goods were stored, and the fact that a retail trade was carried on in the same place did not make it any the less a warehouse. The word “warehouse” was not limited to premises used in conjunction with a landing-place for goods— Wilmott v. Paton (1902), 1 K.B. 237. Secondly, if this was a warehouse it was a factory within the meaning of the Act. Every warehouse to which any of the provisions of the Factory Acts were or might be applied was a factory, just as every dock was a factory— Hall v. Snowden, Hubbard, & Company (1899), 2 Q.B. 136; Strain v. Sloan & Company, March 13, 1901, 3 F. 663, 38 S.L.R. 475; Raine v. Jobson & Company, (1901), A.C. 404. Section 23 of the Factory and Workshop Act 1895 applied to all docks and all warehouses.

Argued for the respondents—This was a shop, not a warehouse. A warehouse meant a building primarily used for storage of goods, not for retail trade. It should be the kind of building found at a landing-place for goods, whether it must necessarily be physically in connection with a dock or not. Even if this was a warehouse it was not a factory, because no provisions of the Factory Acts had ever been applied to it— Jackson v. Rodger & Company, January 30, 1900, 2 F. 533, 37 S.L.R. 390; Bruce v. Henry & Company, March 8, 1900, 2 F. 717, 37 S.L.R. 511; Low v. Abernethy & Company, March 8, 1900, 2 F. 722, 37 S.L.R. 506; Healy v. Macgregor, February 20, 1900, 2 F. 634, 37 S.L.R. 454. The Act was not intended to apply to every warehouse; if it did, the definition in section 7, sub-section 2 (quoted in rubric) was meaningless— Raine v. Jobson & Company, cit. supra, was not a decision to the effect that every dock was a factory, though that was stated in the head-note. It was clear from the opinion of the Lord Chancellor that the judgment proceeded on an admission, and did not decide the point.

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