Scottish Court of Session Decisions

By section 7, sub-section 1, of the Workmen's Compensation Act 1899 it is enacted that the Act shall apply, inter alia, to employment “on in or about any building which exceeds 30 feet in height, and is either being constructed or repaired by means of a scaffolding.” …

This was an appeal upon a stated case against the decision of the Sheriff-Substitute ( Strachan) at Glasgow in an arbitration under the Workmen's Compensation Act 1897 between Mary Ann Matthew or Campbell, widow of the late Donald Campbell, Donald Campbell, and the said Mary Ann Matthew or Campbell as tutrix for her pupil children Isabella Campbell, Andrew Campbell, William Campbell, and Catherine Campbell, claimants and respondents, and George W. Sellars, painter and decorator, Glasgow, appellant.

In the case stated the Sheriff-Substitute found that the following facts were admitted or proved:—

“1. That the respondent Mrs Mary Ann Matthew or Campbell is the widow, and the said Donald Campbell, Isabella Campbell, Andrew Campbell, William Campbell, and Catherine Campbell are children of the deceased Donald Campbell, and were all totally dependent on his earnings.

2. That the said deceased Donald Campbell was a painter in the employment of the appellant.

3. That on 14th August 1902 he was engaged in silicating and painting a wall of a house No. 25 Belhaven Terrace, Glasgow, and while engaged at that work he fell and sustained such injuries that he died very shortly afterwards.

4. That the work of silicating consists in washing or cleaning stones in the walls of a house which have begun to decay, and painting or covering them with a preparation known as silicate, for the purpose of preserving them.

5. That the work is generally done by slaters by means of a scaffold suspended by a rope from the roof of the building, but that where the work is limited to particular portions of the building it is frequently done by painters by means of ladders, which are in that case much more convenient.

6. That in the case in question the work was confined to the cornices on the roof, the rybats of the windows, and the balustrades above the door, and that it was done by painters using ladders for the purpose.

7. That there were three men engaged at the work, and there were three ladders used by them, from 16 to 60 feet in length.

8. That the house in question was over 30 feet in height, and that the deceased Donald Campbell was employed in repairing it at the time of his death.

9. That the ladders used by the deceased and the other workmen kept them in position, and afforded them the necessary support while working at a height above the

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ground, which are the purposes for which scaffolding is generally used.’

On the facts established the Sheriff-Substitute held in law that the deceased was employed at the time of his death in repairing a building over 30 feet in height by means of scaffolding in the sense of the Act, and awarded the respondents the sum of £239, 8s. of compensation, and found them entitled to expenses.

The question of law for the opinion of the Court was—“Whether the deceased was employed at the time of his death in repairing a building over 30 feet in height by means of ‘scaffolding’ within the meaning of the Workmen's Compensation Act 1897?”

Argued for the appellant—A ladder had been held not to be scaffolding in the sense of the Act both by the Scottish and the English Courts— M'Donald v. Hobbs & Samuel, October 17, 1899, 2 F. 3, 37 S.L.R. 4; Wood v. Walsh & Sons [1899], 1 Q.B. 1009. The Sheriff-Substitute's difficulty had undoubtedly arisen from the wrong view of the decision in Hoddinnott v. Newton, Chambers, & Co. [1901], A.C. 49, taken by the English Judges in Veasey v. Chattle [1902], 1 K.B. 494, and in Marshall v. Rudeforth [1902], 2 K.B. 75; Hoddinnott, supra, did not overrule Wood, supra, in the matter of a ladder, and there was nothing in the opinions of the Judges in the House of Lords' case to suggest that they would have held an ordinary ladder to be a “scaffolding.” Indeed, Lord Macnaghten, at p. 57, had laid it down that the words of the Act must be taken in their ordinary signification, and a ladder when used alone could in no sense of the term be described as a scaffolding.

Argued for the claimants and respondents—The ladder in this case was not being used as a means of access but as a substitute for scaffolding. The ordinary mode of doing the work of silicating was by means of a scaffolding. For such work a scaffolding was appropriate. The balance of authority was in favour of the view taken by the Sheriff-Substitute, that where a ladder was being used for purposes for which a scaffolding was ordinarily used and admittedly appropriate, it was a scaffolding within the meaning of the statute. The decision in M'Donald, supra, was founded on that in Wood, supra, and the latter was not consistent with the principles on which the decision in Hoddinnott, supra, was based—opinion of Collins, M.R., in Veasey, supra [1902], 1 K.B. 500. In the present case the Sheriff-Substitute had found as a fact that in the circumstances of the case this ladder was a scaffolding in the sense of the Act. His decision ought not to be overruled— Marshall, supra. A pair of painters' steps had been held to be a scaffolding— Elvin v. Woodward & Co. [1903], 19 T.L.R. 410. This ladder was in a similar position.

At advising—