Scottish Court of Session Decisions

Mrs Isabella Dickson or Zugg, widow of Alfred Dennis Zugg, labourer, claimed compensation under the Workmen's Compensation Act 1906 from J. & J. Cunningham, Limited, manure merchants, 44 Bernard Street, Leith, in respect of the death of Alfred Dennis Zugg.

The matter was referred to the arbitration of the Sheriff-Substitute ( Guy) at Edinburgh, who awarded compensation, and at the request of the defenders stated a case.

The facts admitted or proved, as stated by the Sheriff-Substitute, were—“(1) The appellants are manufacturers of sulphuric acid, chemical manures, and feeding stuffs at their works in Salamander Street, Leith, of which they are the owners as well as the occupiers; (2) part of said works consists of large chambers which are used in the manufacture of sulphuric acid, enclosed and protected by corrugated iron and wood; (3) it is necessary to have the corrugated iron and wood tarred over about once in every two years for the purpose of preserving them from the weather and keeping the chambers within wind and water-tight, the tarring of one half being done one year and of the other half the following year; (4) the chambers are about 20 feet in height and about 40 feet from the ground level, and the said work of tarring is done by workmen, who use a hanging scaffold; (5) the appellants have never had this work done by any of their servants, but have always contracted for it to be done at so much a square yard; (6) in the month of July 1907 the appellants contracted with James Aimers, who had had a similar contract with the appellants during the years 1902, 1903, and 1905, to do a portion of this tarring work, he being paid one penny per square yard—Aimers supplying the tackle and scaffolding and the appellants supplying the tar; (7) Aimers employed a man George Laing to assist him in the work, and authorised Laing to employ Alfred Dennis Zugg, who was accordingly employed and paid wages at the rate of 7d. per hour; (8) on 14th August 1907 a rope accidentally slipped from the hanging scaffold on which the said George Laing and Alfred Dennis Zugg were working, with the result that Zugg fell to the ground and was so injured that he died in Leith Hospital on the same day. It was also admitted or proved that the respondent was the widow of the said

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Alfred Dennis Zugg, and was wholly dependent upon his earnings at the time of his death and was the only person so dependent; that if compensation was payable the amount thereof was £245, 14s.”

The Sheriff-Substitute further stated—“On these facts I held in law that within the meaning of said Act (1) the appellants were principals in relation to said work; (2) that the said work was undertaken by the appellants in the course of and for the purpose of their trade or business; and (3) that Zugg was a workman within the meaning of said Act, and that the said accident arose out of and in the course of his employment as such; and (4) that the respondent was entitled to compensation from the appellants under the said Act in the said sum of £245, 14s., and I ordered the appellants to consign said sum with the Sheriff Clerk, and found the appellants liable in expenses.”

The questions of law were—“(1) Whether the work contracted for was work undertaken by the appellants as principals in the course of or for the purposes of their trade or business, all within the meaning of the Workmen's Compensation Act 1906; and (2) Whether the appellants are liable to the respondent in compensation under the said Act.”

Argued for appellants—Under the Workmen's Compensation Act 1897 the claimant would have had no claim. Neither had she any under this Act. Section 4 on which she founded was inapplicable. There was no “sub-contract” here in the sense of that section, for the appellants had not “undertaken” any work. They had merely employed a firm of “riggers” to tar one of their buildings. It was not the business of the appellants to erect or repair buildings. They were manufacturers of chemicals and did not “undertake” the repair of buildings. They had not “undertaken” anything here, and section 4 was therefore inapplicable.

[Counsel for the appellants was proceeding to develop his argument when the Court called on counsel for the respondent.]

Argued for the respondent—The question fell to be decided under section 4 (1) of the Act of 1906. Upon a sound construction of that section the appellants were persons who had “in course of or for the purposes of their trade or business” contracted with Aimers for the execution of part of the work “undertaken” by them, and they were accordingly liable to pay compensation to the respondent. The words of the section were as wide as possible, and obviously included under the expression “work undertaken” everything incidental and in any way pertinent to the business. It was suggested that the respondent would have had no claim under the Act of 1897. Even if that were so it was immaterial, because, firstly, the respondent was under the Act of 1906, and secondly, the object of the Act of 1906 was to extend still wider in favour of the workman the provisions of the Act of 1897. But even under the latter Act it was by no means clear that she would not have had a claim. The appellants were “undertakers” in the sense of that Act— Stalker v. Wallace, July 10, 1900, 2 F. 1162, 37 S.L.R. 898; the respondent could only therefore have been excluded by the proviso at the end of section 4 ( sub-contracting), which provided that the section should not apply to contracts which were merely ancillary or incidental to the trade of the undertaker. It was, however, at least doubtful whether the contract in the present case could be so described, and it was further noticeable that there was no corresponding proviso in the Act of 1906. It was upon the proviso at the end of section 4 in the Act of 1897, that any decisions, at first sight adverse to the respondent, had proceeded. See Bee v. Ovens & Sons, January 25, 1900, 2 F. 439, 37 S.L.R. 328; Burns v. North British Railway Company, February 20, 1900, 2 F. 629, 37 S.L.R. 448; Dundee and Arbroath Joint Railway Company v. Carlin, May 31, 1901, 3 F. 843, 38 S.L.R. 635; M'Govern v. Cooper & Company, November 14, 1901, 4 F. 249, 39 S.L.R. 102; Dempster v. Hunter & Sons, February 26, 1902, 4 F. 580, 39 S.L.R. 395; Stewart v. Dublin and Glasgow Steam Packet Company, November 4, 1902, 5 F. 57, 40 S.L.R. 41.