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[Sheriff Court at Dundee.
A workman in the employment of a firm of boilermakers was sent by them to repair a boiler in a spinning-mill
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belonging to a third person at a time when the work of the mill was suspended. In the course of executing the repairs the workman sustained an injury to one of his eyes. The work in which he was engaged when he met with the accident was the removal and renewal of the blow-off saddle of the boiler, and he was standing on the outside of the boiler holding a cutter by a handle of twisted wire against a rivet-head on the inside in order that it might be struck off by another workman using a heavy hammer inside the boiler. No steam, water, or other mechanical power was being used in the operation, although there was steam power on the premises, which might have been used. Held that the workman was not entitled to compensation from the firm of boilermakers under the Workmen's Compensation Act, 1897, in respect (1) that the spinning-mill was not the factory of the boilermakers, and therefore not a factory within section 7 (1) of the Act; and (2) that he was not engaged in “engineering work” in the sense of section 7, (1), (2), of the Act, as no machinery driven by steam, water, or other mechanical power was in fact used in the work in which he was engaged at the time of the accident.
The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37) enacts, section 7, subsection (1)—“This Act shall apply only to employment by the undertakers as here in after defined, on or in or about a railway, factory, mine, quarry, or engineering work.” … Sub-section (2) enacts—“In this Act … ‘factory’ has the same meaning as in the Factory and Workshop Acts 1878 to 1891, and also includes any dock, wharf, quay, warehouse, machinery, or plant to which any provision of the Factory Acts is applied by the Factory and Workshop Act 1895.… ‘Engineering work’ means any work of construction or alteration or repair of a railroad, harbour, dock, canal, or sewer, and includes any other work for the construction, alteration, or repair of which machinery driven by steam, water, or other mechanical power is used. ‘Undertakers’ in the case of a railway means the railway company; in the case of a factory, quarry, or laundry, means the occupier thereof within the meaning of the Factory and Workshop Acts 1878 to 1895;… and in the case of an engineering work means the person undertaking the construction, alteration, or repair.” …
In an arbitration under the Workmen's Compensation Act 1897 in the Sheriff Court at Dundee, between John Adam, boilermaker, 88 Hawkhill, Dundee, claimant, and Cooper & Greig, engineers and boilermakers, Britannia Works, East Dock Street, Dundee, the Sheriff-Substitute ( Campbell Smith) on 12th July 1904, after a proof, pronounced the following interlocutor:—“Finds that the pursuer is a boilermaker, and was, on 29th July 1902, while working in the employment of the defenders, so injured in the left eye as to be deprived of the sight of it: Finds that the work at which he was engaged was the removal and the renewal of the blow-off saddle of the Tayport Factory boiler, and that he was standing on the Outside of it holding a cutter four inches long by a handle of twisted wire against a rivet-head on the inside in order that it might be struck off by a companion workman using a heavy hammer on the inside; that said companion struck the cutter so held that the rivet-head flew at the blow struck from the inside of the boiler, somewhere rebounded from the inside, flew through the manhole at which the pursuer was standing with the cutter in his grasp, hit him on the eye: Finds that the said Tayport Factory is in its regular business a spinning factory, but that the spinning business was, in respect of the week's annual holidays in the end of July, suspended for the week, and the factory was occupied by the defenders for engineering repairs, and in particular for the repair of this boiler, which, but for its weight and the difficulty of transport, could have been repaired as easily and as well, and by operations identical in every important respect, in the defenders' engineering establishment in Dundee: Finds that in carrying out the work they were employed to do the defenders were for the time being occupiers and tenants-at-will of this Tayport Factory as completely as if the said factory had been totally surrendered to them: Therefore repels the defences: Finds the pursuer entitled to compensation at the rate of 19s. a-week from the 12th August to 24th November 1902, also 12th April to 18th December 1903, also to 2d. a-week from latter date till the further orders of Court, and continues the cause: Finds the pursuer entitled to expenses,” &c.
The Sheriff-Substitute having refused to state a case for appeal, the defenders presented a note to the First Division craving the Court to ordain him to do so. In their note the defenders averred—“During the last week of July 1902 the respondent, who was a boilermaker in the employment of the appellants, was sent by them along with two other men to repair a boiler at the factory of the Tayport Spinning Company at Tayport while the work of that factory was suspended for the week for the annual holiday. The work to be done was the removal and renewal of the blow-off saddle of the boiler, and no steam, water, or other mechanical power was employed by the appellants in the performance thereof or in connection therewith. On 29th July 1902 the respondent was standing on the outside of the boiler holding a cutter four inches long by a handle of twisted wire against a rivet-head on the inside in order that it might be struck off by a companion worker using a heavy hammer on the inside, when the head of the rivet flew off and struck the respondent on the left eye. As a result of the accident the respondent lost the sight of his left eye.”
The pursuer lodged answers in which he averred—“The removal and renewal of the blow-off saddle is a composite process in the course of which machinery driven by
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steam, water, or other mechanical power is used, and the applicant was employed in that process. That such machinery is used in the composite process is admitted by the witnesses for the defence.” On 29th November 1904 the First Division remitted to the Sheriff-Substitute to state a case setting forth the facts found by him to be admitted or proved relative to the following questions, viz.—“( First) Whether the respondent was injured on or in or about a ‘factory’ within the meaning of section 7 (1) (2) of the Workmen's Compensation Act 1897. ( Second) Whether the appellants were ‘undertakers’ of that ‘factory’ within the meaning of section 7 (2) of said Act. ( Third) Whether the work at which the respondent was injured was ‘engineering work’ within the meaning of section 7 (2) of said Act. ( Fourth) Whether, if the foregoing are answered in the affirmative, the Sheriff-Substitute was right in awarding compensation for the period from 12th April to 18th December 1903, and recommend to the Sheriff-Substitute to include in such case any other question of law arising out of the facts found by him to be admitted or proved relative to the merits of the claim, and to give his judgment on the facts relative to these points.”
In compliance with the remit the Sheriff-Substitute, on 17th March 1905, stated a case in which he referred to his interlocutor of 12th July 1904 as to the facts found proved. The case contained, inter alia, the following additional statements:—“The Sheriff-Substitute wrote his interlocutor and note in the undoubting belief that the three questions set forth in the interlocutor of the Court of Appeal all fell to be answered in the affirmative in point of fact.… The defenders have an extensive engineering business in Dundee and district, and are not known to carry on, or profess to carry on, any other business. An important part of their said business is to construct the boilers, engines, and other motive machinery for the spinning factories, and a regular part of it is to execute repairs, renewals, and extensions during the July holiday week, when the ordinary factory workers are turned out to go idle in the name of holiday, and the engineers are more busy than they are during any other week of the year, taking advantage of the machinery being at rest for the opportunity of repairs and alterations that have been postponed for it, and for the long light that gives facility for extra hours. At the time of the accident there was a contiguous and substitute boiler generating steam and driving the machinery in the adjoining mechanic's shop, and that machinery and steam-propelled tools were at the service of the defenders had they required to use them to facilitate any part of their work.… The Sheriff-Substitute was satisfied that the liability for compensation under the Workmen's Compensation Act depends upon the question of employment and its nature, and not upon the question as to whether the undertakers’ title to the locus where the injury befell the servant was permanent or temporary, if it was a lawful and sufficient title at the time of the accident for the master taking the man to work ‘in or about’ a place defined by statute to be a factory, to do work essential to the trade and business-existence of the factory as a steam-driven spinning factory. The question that the Sheriff-Substitute understood he was called upon to decide, and did decide, was that the defenders, being engineers, and admittedly and professedly doing ‘engineering work,’ in the course of which the pursuer and respondent lost the sight of his eye, are exempt from liability under the Workmen's Compensation Act, in respect that the engineering work was done in a spinning factory of which the defenders and appellants were not for the time being the occupiers or undertakers, and which was not in the line of the proper and special business of a spinning factory. The Sheriff-Substitute decided against the defenders on being satisfied in point of fact that the work was engineering work in the sense of the statute.”
The questions of law were—“(1) Whether in respect of the facts admitted and proved, as above set forth, the Sheriff-Substitute was wrong in law in holding the pursuer entitled to compensation under the ‘Workmen's Compensation Act 1897.’ (2) Whether when a workman who has partially recovered from an injury, and has for a time obtained employment but has not recovered his full working powers, and has been again thrown idle because of the want of them, retains the right to obtain from his master one-half of the loss of wages, or at least part of his loss by way of compensation under said Workmen's Compensation Act, and whether the right to compensation once existent and established can be put an absolute end to without the decree of a competent Court.”
Argued for the appellants—Employment by the “undertakers” on or in or about a factory in section 7, sub-section (1), of the Workmen's Compensation Act, meant employment by the “undertakers” on or in or about their own factory. The appellants were not the “occupiers” of the factory where the accident happened within the meaning of the Act.— Francis v. Turner Brothers, December 16, 1899 [1900], 1 Q.B. 478; Wrigley v. Whittaker & Sons, April 29, 1902 [1902], A.C. 299; Malcolm v. M'Millan, January 30, 1900, 2 F. 525, 37 S.L.R. 383; Purves v. Sterne & Company, Limited, May 22, 1900, 2 F. 887. 37 S.L.R. 696. The operation in which the workman was engaged was not an “engineering work” in the sense of the Act, as no steam, water, or other mechanical power was being used. The appellants were therefore exempt from liability.
Argued for the respondent—The place where the accident happened was in fact a factory. The appellants were for the time being the “occupiers” of this factory, and were therefore the “undertakers.” The work in question was an “engineering work” in the sense of the Act. It was part of a composite process, and that being so it was sufficient to bring it within the
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definition of engineering work if in any part of the process mechanical power was used. In the present case steam-power had been used in cutting out the new blow-off saddle which was to replace the one being removed. The “undertakers” of an “engineering” work meant “the persons undertaking the construction, alteration, or repair” thereof. The appellants were therefore the “undertakers” of an “engineering work” in the sense of the Act.— Middlemass v. Berwickshire District Committee, January 17, 1900, 2 F. 392, 37 S.L.R. 297; Reid v. Fleming & Company, June 25, 1901, 3 F. 1000, 38 S.L.R. 720; Atkinson v. Lamb, April 21, 1903, 19 T.L.R. 412.
Now on these findings it is clear that the Sheriff-Substitute's judgment proceeded on one of two grounds, either (1) that the place where the accident occurred was a “factory” and the appellants were “undertakers” thereof; or (2) that the place was an “engineering work.” (1) This point is entirely concluded by authority. It is clear from the case of Wrigley v. Whittaker, L.R. 1902, A.C. 299, that the “factory” referred to in section 7 (1) means the “factory” that belongs to the undertakers. This disposes of the first point, as the Tayport factory was not the factory of the defenders. (2) This point is not directly dealt with by decision. It is that these Tayport premises—for now the word “factory” is of no importance—became for the nonce the “engineering work” of the defenders. The Sheriff-Substitute says the defenders were “tenants at will of the premises.” The phrase seems to me quite inapplicable. Any tradesman coming to do work in a house is, on that principle, a “tenant at will” of the house while engaged on the work. It does not seem to me that there is any ground for such an idea. The view of the statute is that the work should be the work of the “undertakers,” and “engineering work” is defined in section 7 (2). [ His Lordship quoted the definition of “engineering work” from the statute.] Here it is clear that neither steam, water, or other mechanical power was used. It is not to the point that there was steam on the premises that might have been used; and consequently the fact falls short of the definition of “engineering work” in the statute. The case fails therefore in the second point also, so that there is here no ground of liability at all.
In my opinion the first question should be answered in the affirmative, and if this is done the second question need not be answered.
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The Court answered the first question of law in the affirmative.
Counsel for the Pursuer and Respondent— Garson. Agents— Douglas & Miller, W.S.
Counsel for the Defenders and Appellants— Campbell, K.C.— Lord Kinross. Agents— Anderson & Chisholm, S.S.C.