Scottish Court of Session Decisions

Thomas Topping, builder in Edinburgh, entered into a contract in the beginning of 1901 for the mason-work required in connection with the erection of an hotel known as the Saint Andrew Hotel, South St Andrew Street there, and into a separate contract for the carving-work. He thereafter made a sub-contract with John Stevenson Rhind, sculptor, in Edinburgh, for the execution of the carving-work, of which there was a large amount. In the course of carrying out this carving-work, one of the workmen, Alexander Rhind, inadvertently took a wrong turn, and instead of entering a passage, stepped into the open well of the hoist and fell a distance of 40 feet, sustaining serious injuries which incapacitated him from work, and made it doubtful if he might not be permanently rendered unfit to carry on his trade. He made a claim for compensation in respect of the accident, under section 4 of the Workmen's Compensation Act 1897, against Topping, as being the undertaker in the construction of the building, which was more than 30 feet high, and was being constructed by means of scaffoldings, and compensation in terms of the First Schedule of the Act was therefore duly paid to him in weekly instalments. Topping raised an action against John Stevenson Rhind, his sub-contractor and the employer of the injured man, in which he sought declarator that the defender was bound to relieve him of all claims in respect of the accident, and to indemnify him therefor, and sued for the sum of £84, being the amount of the weekly instalments already paid.

Rhind denied liability, and pleaded, inter alia—“(3) The defender should be assoilzied from the conclusions of the summons, in respect that …; ( b) the defender was not an undertaker within the meaning of the Workmen's Compensation Act 1897; ( c) the pursuer was the undertaker within the meaning of the said Act.”

The Workmen's Compensation Act 1897, sec. 1(1), enacts—“If in any employment to which this Act applies personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the First Schedule to this Act.”

Section 7—“(1) This Act shall apply only to employment … and to employment by the undertakers as hereinafter defined, or

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in or about any building which exceeds thirty feet in height, and is either being constructed or repaired by means of a scaffolding, or being demolished, or on which machinery driven by steam, water, or other mechanical power is being used for the construction, repair, or demolition thereof. (2) In this Act … ‘undertakers’ … in the case of a building means the persons undertaking the construction, repair, or demolition.”

Section 4—“Where in an employment to which this Act applies the undertakers … 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 these 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 (whether under this Act or in respect of personal negligence or wilful act independently of this Act) by such contractor, or would be so payable if such contractor were an employer to whom this Act applies: Provided that the undertakers shall be entitled to be indemnified by any other person who would have been liable independently of this section. This section shall not apply to any contract with any person for the execution by or under such contractor of any work which is merely ancillary or incidental to and is no part of or process in the trade or business carried on by such undertakers respectively.”

Upon 24th November 1903, the Lord Ordinary ( Kincairney) issued this interlocutor:—“Finds that the defender was the employer of the injured workman Alexander Rhind, and was also an undertaker in the sense of the Workmen's Compensation Act: Finds that he was a person who would have been liable in compensation to the said injured workman, and that under the fourth section of the said Act the pursuer is entitled to be indemnified by him: Therefore decerns against the defender for payment of the sum of £84, with interest as concluded for.” …

Opinion.—“This is a case under the Workmen's Compensation Act, which relates to an accident which happened in the course of the building of an hotel in South St Andrew Street, Edinburgh. Alexander Rhind, a journeyman sculptor, employed in executing the carving work on the hotel, fell from the scaffolding on the second floor through the well of a hoist, and suffered considerable injury.

The hotel was being built by the pursuer Topping under a contract with the owner. Topping entered into a separate contract with the owner for the execution of ornamental and carving work, and he and the defender sub-contracted for the execution of that work by the defender. The defender employed Alexander Rhind as one of his workmen, Alexander Rhind, in an action under the Workmen's Compensation Act, recovered from Topping £84 as compensation, and Topping has brought this action against the defender as Alexander Rhind's employer, for indemnification by repayment of that sum.

“The case depends on the fourth section of the Workmen's Compensation Act, and chiefly on the proviso to that section.—[ His Lordship quoted section 4 ut supra.]

The claim by Alexander Rhind, the injured workman, was brought against Topping the builder, as undertaker in the sense of the 4th section, and made liable by that section, although he was not Alexander Rhind's employer.

John S. Rhind lodged defences in which he stated various pleas, and after a debate in the procedure roll, a proof was allowed which has been taken. Some points at first disputed were conceded at the debate. It was not disputed that Topping was undertaker in the sense of the Act, and that Alexander Rhind's action against him was authorised by the fourth section. It was not maintained that Rhind's claim could be disallowed because of his ‘serious and wilful misconduct’ (section 1, sub-section 2, c). The award against Topping was not challenged, and it was conceded that under the proviso Topping's claim for indemnification was good against any person who would have been liable independently of the fourth section,

It was said indeed that Topping could not recover because he was himself in fault. I am, however, of opinion, on the proof, that Topping was not in fault and was not liable to Rhind because of fault. The fault alleged was in failing to fence the hoist and to keep it lighted. I think Topping was not under any obligation to Rhind to fence the hoist. I do not find it proved that it is usual to fence such hoists when the building is proceeding, and I think that the danger arising from an unfenced hoist is one which workmen working in an unfinished building not unfrequently incur. Nor do I think he was under obligation to keep the hoist lighted; and I do not think it proved that the darkness was so great that it could be said to have caused the accident. I think that the accident would not have happened but for some slight heedlessness and momentary inattention on the part of Alexander Rhind, not, however, approaching to ‘serious and wilful misconduct,’ but against which I do not think that Topping was bound to provide by putting up a fence. There seems no ground for the suggestion that the defender was liable on the ground of personal fault. I think it clear that his liability, if any, could only be statutory.

The question therefore comes to be narrowed to this—Is the defender a person who would, in the terms of the proviso, have been liable had the fourth section not been part of the Act; and that of course involves the question—Was he liable as Alexander Rhind's employer? Would Alexander Rhind have succeeded had he directed his claim of compensation against the defender?

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This is a singularly difficult question, the difficulty entirely arising from the unfortunate manner in which the Act has been framed.

The leading section is, I think, the first, by which the right is conferred and the corresponding liability imposed. It refers to employments to which the Act applies, and it subjects an employer to payment of compensation ‘subject as hereinafter mentioned.’ There are at least two questions bearing on the present case which here require to be solved. The first is—What are the employments to which the Act applies? and the second is—What is the effect of the words ‘subject as hereinafter mentioned’? The former question seems solved by section 7, which provides that the Act shall apply only to employment ‘by the undertakers as hereinafter defined,’ inter alia, ‘in or about any building which is being repaired or constructed by means of a scaffolding.’ No doubt the hotel which was being built answers to these words, but they seem to imply that the Act applies only to employment ‘by undertakers as hereinafter defined,’ and if so it would not apply to employers who were not also undertakers. This is a point which seems difficult to solve; but, supposing that to be so, the further question is—Was the defender, who sub-contracted with the undertaker, himself an undertaker? Was he a person undertaking the construction of a building?

This is a question which has frequently arisen in the Courts of England, and has been variously and diversely answered. Apart from the cases, it seems to me that there may be several people who undertake the construction of one building, each of whom, it may be, undertakes the construction of different parts of the building. A workman, for example, who contracts to execute the slater work of a house, seems to me to be engaged in the construction of the house and to be an undertaker; and in like manner a plumber; and in this particular case I think the defender, who sub-contracted for the carving and executed the carving, was, in doing so, engaged in the construction of the house and was an undertaker. I apprehend that the hotel would not have been constructed and would have been incomplete but for the work done by the defender. That would not necessarily apply to every contract by a sculptor, but has reference to the kind of carved and ornamental work shown in the specifications, all of which was apparently such work as might have been executed in situ and by a skilled mason. I do not see that the circumstance that the defender was a sub-contractor is material.

These views seem to be in accordance with the more recent decisions in England, as I understand them. The defender quoted Wood v. Walsh [1899], 1 Q.B. 1007, and Cass v. Butler [1900], 1 Q.B. 777; and they seem to favour the defender's case. But it appears to me that they have been overruled by later cases and could not now be quoted in the Courts in England. These later cases appear to lend support to the views which I have endeavoured to explain. These are Mason v. A. R. Dean, Limited [1900], 1 Q.B. 770, a case closely in point; Hoddinott v. Newton [1901], App. Cas. 49, a very important case, where there was considerable difference on the bench; Cooper & Crane v. Wright [1902], App. Cas. 302; Waggstaff v. Perks & Son, December 12, 1902, 19 Times L.R. 112.

On the whole I think that the defender, who was the employer of the injured man Rhind, was an undertaker in the sense of the Act, and would have been liable as an employer who was also an undertaker, apart from the fourth section, and therefore that he is liable under the fourth section to reimburse the pursuer for the sum paid by him as compensation to Alexander Rhind.”

The defender reclaimed, and argued—The reclaimer was not bound to indemnify the respondents, for while he was the injured man's employer, he was not an undertaker as required by sec. 7. He was therefore not liable for the compensation independently of section 4, as required by the proviso to that section before a claim for indemnity would lie against him. To make him an undertaker it would be necessary to show that he was the contractor for a separate and material portion of the construction of the building— Mason v. Dean, Limited [1900], 1 Q.B. 770, and while the courts in England had included a great deal under the terms “construction” and “repair,” a clear distinction had been drawn against purely ornamental work— Dredge v. Conway Jones & Company [1901], 2 K.B. 42; Cooper & Crane v. Wright [1902], App. Cas. 302. But the work which the reclaimer was responsible for was merely the carving, which was purely ornamental, forming no part of the construction, and could have been executed either entirely away from the building, or at some time subsequent to the building's complete construction.

Argued for the respondent—The work for which the reclaimer was responsible was a separate and material part of the construction. It was part of the original design, and the building would not have been complete without it. It therefore fell within the term “construction”— Hoddinott v. Newton [1901], App. Cas. 49. A sub-contractor in such position was an undertaker in the sense of section 7— Cooper & Crane v. Wright, cit. sup. The reclaimer therefore would have been liable for the compensation independently of section 4, and was therefore under the proviso to that section bound to indemnify the respondent. Cairns v. Boyd, June 5, 1879, 6 R. 1004; Forsyth v. Ramage & Ferguson, October 25, 1890, 18 R. 21, 28 S.L.R. 26, were also referred to in the discussion.

At advising—