Scottish Court of Session Decisions

Lord Stormonth Darling—The question of law in this case is whether the appellant was a workman in the employment of the respondent within the meaning of the Workmen's Compensation Act 1906, so as to entitle him to compensation under that Act. The Sheriff-Substitute before whom the case came assoilzied the respondent from the conclusions of the petition, and I am of opinion that he was right in so deciding the case.

The solution of the question depends upon the definition of “workman” contained in the thirteenth section of the Act. That section provides that “workman” “does not include a person whose employment is of a casual nature, and who is employed otherwise than for the purposes of the employer's trade or business.” Under this section, therefore, in order to entitle the appellant to compensation it is essential ( first) that his employment should not have been of a casual nature, and ( second) that it was for the purposes of the respondent's business. Both of these conditions must be present.

Now, with reference to the first of these requirements, the facts as found in the case are that the appellant did not wait for a special invitation on each occasion, nor did he ask special permission, but called at the respondent's house, was admitted, and did the work. There was no formal contract between the parties, and the respondent might have engaged other persons to clean the windows, and might have refused the appellant admittance whenever he came prepared to clean the windows. Could there be a more typical example of employment of a casual nature than this? The appellant went to the respondent's house on each occasion on the chance of being permitted to clean the windows. That chance was no doubt a good one, but it cannot possibly be said that the employment was, to use the words of Buckley, L.J., in Hill v. Begg, 24 Times L.R. 711, either permanent or periodic. Accordingly, I think that the appellant has failed to show that his employment was other than of a casual nature.

Further, I am of opinion that the appellant was not employed for the purposes of the respondent's business. It was argued that the fact that the appellant cleaned the windows of the rooms in the house used by the respondent in connection with his medical practice was sufficient to satisfy this requirement. I cannot agree with this argument, and in my opinion it would be absurd to make the respondent's liability to compensate the appellant turn upon the question whether the appellant had or had not, on the particular occasions on which he went to the house, cleaned the windows of the surgery as well as the other windows of the house. Essentially the employment was in connection with the respondent's private residence, and not for the purposes of his business. On the whole matter I am of opinion that we should answer the question of law in the negative.

Lord Low—I am of the same opinion. The facts stated by the Sheriff in the case show clearly that there never was a standing contract or one for the future between the appellant and the respondent, but that on each occasion upon which the former called at the latter's house an implied contract was entered into between them applicable only to that particular occasion. It is no doubt true that the appellant had reasonable grounds for believing that he would, when in ordinary course be called at the pursuer's house, be employed; that he was probably justified in expecting, but certainly he had no right to demand, employment. It appears to me that, strictly regarded, his calling at the house was on each occasion an application for employment, and his admission by the respondent's servant an acceptance on the respondent's part of his application. I therefore have no hesitation in holding that the employment was of a casual nature.

Mr Thomson, however, contended further that even if that was so, the appellant was none the less a “workman” within the meaning of section 13 of the Act, because he was employed “for the purposes of the employer's trade or business.” It seems to me that to say that a window-cleaner who cleans the windows of a doctor's house, among them being the windows of his surgery or consulting-room, is employed for the purposes of the doctor's trade or business, is straining the language of the Act beyond all sense and reason.

I will only add that I concur in the opinions delivered by the learned Judges in the English case of Hill v. Begg which was

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