Scottish Court of Session Decisions

This was a stated case on appeal from the decision of Sheriff-Substitute Strachan in an arbitration under the Workmen's Compensation Act 1897 in the Sheriff Court at Glasgow, between (1) Catherine M'Cafferty or Reid, widow of Alexander Reid, docker, Glasgow; (2) Helen Reid; and (3) the said Catherine M'Cafferty or Reid as tutor-in-law for her pupil children—Mary Reid, William Reid, Jessie Reid, and Catherine Reid—claimants and appellants, and The Anchor Line (Henderson Brothers, Limited), steamship owners and agents, Glasgow, respondents, in which the Sheriff was asked to find that the respondents were liable to the appellants in £300 as compensation in terms of the Workmen's Compensation Act 1897, in certain proportions.

The Sheriff-Substitute stated as follows:—“The case was heard before me on 8th August 1902, when I found the following facts to be established:—(1) That the appellant Mrs Catherine M'Cafferty or Reid was the widow and the other appellants were children of the deceased Alexander Reid, docker, and that they were totally dependent on the earnings of the deceased. (2) That the deceased was on 14th March 1902 in the respondents' employment as a docker, and was assisting to unload a cargo on board the respondents' s.s. ‘Astoria’ at Glasgow Harbour. (3) That about 2 p.m. on said date he left the hold of the vessel along with the other workmen for the purpose of going home to dinner, and while ascending the fixed ship's ladder between the orlop deck and the ‘tween deck his foot slipped off a rung, with the result that he fell back into the hold, a distance of about fifteen feet, and was killed. (4) That the respondents, besides being the owners of said vessel on which the accident occurred, were the undertakers for the whole workings of the vessel, including the process of loading and discharging. (5) That the ship's cargo was being discharged by means of the ship's steam winch, derrick, and fall, and the cargo was wheeled ashore by respondents' labourers over quay planks or gangways laid between ship and quay. I held that the deceased Alexander Reid was not at the time the accident happened employed on or in or about a factory within the meaning of the Workmen's Compensation Act 1897. I therefore dismissed the application, and found no expenses due to or by either party.”

The question of law for the opinion of the Court was—“Whether the deceased was at the time when the accident happened employed on or in or about a factory within the meaning of the Workmen's Compensation Act 1897, and whether his dependents are entitled to recover compensation under the foresaid arbitration in respect of his death?”

Argued for the claimant and appellant—This case fell within the Workmen's Compensation Act 1897 on two alternative grounds—(1) Under section 7 of that Act, adopting the meaning in the Factory Act 1895, section 23 (1), every dock, wharf, quay, &c., was per se a factory. In the present case the ship was in a dock, and the workman had therefore met his death within a factory— Raine v. Jobson & Co. [1901], A.C. 404, approving Merrill v. Wilson [1901], 1 K.B. 35; Bartell v. W. Gray & Co. [1902], 1 K.B. 225. (2) Under the above-mentioned sections of the Acts of 1897 and 1895 all machinery and plant, so far as related to the process of loading or unloading from or to a dock, wharf, or quay, constituted a factory. In the present case Reid was assisting in the first step of the process of unloading or getting the cargo from the ship to the quay. The ladder was part of the plant. The workman Reid was therefore employed on or in or about a factory— Stuart v. Nixon & Bruce [1901], 79, 82, opinion of Halsbury L.C. 89. No doubt the decisions in the Scottish Courts founded on by the other side were against the view submitted. But all these cases were decided prior to the two decisions in the House of Lords cit. supra. The Scottish Courts might be said to have followed and been led astray by the decision in the early case of Flowers v. Chambers [1899], 2 Q.B. 142. But that decision had been overruled expressly by the House of Lords in the case of Raine v. Jobson & Co., supra, and although there was no appeal to the House of Lords in Scots cases under the Act, the Court ought to follow the decisions of the highest Court of the realm on an Act common to both countries.

Argued for the respondents—Neither a dock, wharf, or quay nor the machinery used for loading or unloading on board a ship in a dock or at a quay was per se a factory under the Workmen's Compensation Act 1897. In order to constitute a factory under the Act, the dock, wharf, or quay must be one to which some of the provisions of the Factory Acts applied. These Acts only applied where there was on the dock, wharf, or quay some machinery employed for loading and unloading, and worked with steam, water, or other mechanical power in connection therewith. And in order that machinery or plant for loading or unloading might constitute a dock, it must be fixed gearing on the quay. Where the ship's own machinery was being used for loading or unloading there was no factory. These propositions were supported by no fewer than six Scotch decisions, viz.— Aberdeen Steam Trawling Co. v. Peters, March 16, 1899, 1 F. 786, 36 S.L.R. 573; Jackson v. Rodger & Co., January 30, 1900, 2 F. 533, 37 S.L.R. 390; Healy v. Macgregor & Ferguson, February 20, 1900, 2 F. 634, 37 S.L.R. 454; Bruce v. Henry & Co., March 8, 1900, 2 F. 717, 37 S.L.R. 511; Low v. Abernethy, March 8, 1900, 2 F. 722, 37 S.L.R. 506; Laing v. Young & Leslie, November 2, 1900, 3 F. 31, 38 S.L.R. 29. It was not correct to say that the Scottish Courts had followed the decision in the case of Flowers v. Chambers, supra. The case of Aberdeen Steam Trawling Co. v. Peters, supra, was decided before the case of Flowers. There were also three other English decisions to the effect that where the process of loading was being carried on with the ship's machinery the Act did not apply, viz.— Durrie v. Warran, & Co.,

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1899, 15 T.L.R. 365; Hennessey v. M'Cabe [1900], 1 Q.B. 491; Spencer v. Livett, Frank, & Son [1900], 1 Q.B. 498. It was argued that all this mass of authority was nullified by the House of Lords' decisions in Stuart v. Nixon & Bruce, supra, and Raine v. Jobson & Co., supra. As regards the case of Stuart, that case was appealed to the House of Lords in order that it might be determined whether the Act applied to “casual” labourers. Seven Judges heard the case, and in the opinions of six of them there was no reference to the present question. The only reference to it was a single sentence in the opinion of the Lord Chancellor. The present question as to whether machinery on board a ship could constitute a factory under the Act was not raised in that case, and an obiter dictum of one Judge, who had heard no argument on the point, was not enough to overturn a long series of decisions. Then as regards the case of Raine, it had no application. In that case the ship under repair was in a dry dock, and it was conceded in that case that the work was going on inside premises which constituted a factory. In such circumstances the Court would not be disposed to pronounce a decision which would overturn a whole series of their own decisions. The decisions of the Court in cases under the Act were final, and should be treated as laying down the law once and for all.

At advising—