Scottish Court of Session Decisions

This case is reported ante ut supra.

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 13, enacts—… “‘Workman’ does not include any person employed otherwise than by manual labour whose remuneration exceeds £250 a-year, or 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, or a member of a police force, or an outworker, or a member of the employer's family dwelling in his house, but, save as aforesaid, means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work, or otherwise, and whether the contract is expressed or implied, is oral or in writing.”

Section 8 confers a right to compensation on workmen who are suffering from “industrial diseases,” and enacts—sub-section (1) ( c) — “The compensation shall be recoverable from the employer who last employed the workman during the … twelve months” [previous to the date of disablement] “in the employment to the nature of which the disease was due: Provided that (i) the workman … if so required, shall furnish that employer with such information as to the names and addresses of all the other employers who employed him in the employment during the said twelve months as he … may possess, and if such information is not furnished, or is not sufficient to enable that employer to take proceedings under the next following proviso, that employer, upon proving that the disease was not contracted whilst the workman was in his employment, shall not be liable to pay compensation; and ( ii) if that employer alleges that the disease was in fact contracted whilst the workman was in the employment of some other employer, and not whilst in his employment, he may join such other employer as a party to the arbitration, and if the allegation is proved, that other employer shall be the employer from whom the compensation is to be recoverable; and ( iii) if the disease is of such a nature as to be contracted by a gradual process, any other employers who during the said twelve months employed the workman in the employment to the nature of which the disease was due shall be liable to make to the employer from whom compensation is recoverable such contributions as in default of agreement may be determined in the arbitration under this Act for settling the amount of the compensation.”

In an arbitration between Burnham & Company, 83 Jamaica Street, Glasgow, and John Taylor, letter fixer, 13 Mount Street there, the Sheriff-Substitute at Glasgow ( Davidson) awarded compensation, and at the request of Burnham & Company stated a case for appeal.

The Case stated—“The case was heard before me, and proof led on this date, when the following facts were established — (1) That for at least twelve months prior to 27th April 1908 the respondent was in the habit of calling regularly at

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the appellants' place of business with a view to obtaining work from them. (2) That he very frequently obtained such employment. (3) That the nature of the employment was the fixing of enamel letters, and that the respondent frequently obtained orders for such work for the appellants, which he subsequently executed. (4) That he was in no way precluded from accepting offers of work independent of the appellants, and that he, in point of fact, did during the said twelve months accept such work, but only on rare occasions; that he was not under obligation to take any particular job from the appellants if for any reason he thought it unsuitable. (5) That he was paid by the piece and had to pay his own travelling expenses. (6) That respondent on occasions canvassed among shopkeepers to fix letters on behalf of appellants, and where he did so was paid only in respect of the orders he received. (7) That the average weekly wage he earned from the appellants was £1, 4s. 8d. (8) That on the said 27th April 1908 he left their employment. (9) That he was at that time suffering from the disease of lead poisoning, which is a disease that the nature of his employment by the appellants made him liable to acquire, and that this disease is contracted by a gradual process. (10) That he had on two occasions suffered from lead poisoning previously, and had continued to act as a letter fixer, although such an employment rendered a recurrence of the said malady probable. (11) That he had not wholly recovered as at 15th April 1909, but that he had been earning full wages from that date. (12) That the respondent produced in process a list of the names and addresses of the persons other than the appellants by whom he was employed during the twelve months prior to 1st March 1908. (13) That he added the statement that he did not use white lead when employed by these people, but that this statement has turned out to be false, and that the respondent must have known it to be false when he made it; that the use of white lead is a factor in the respondent's employment which conduces to the contracting of the disease in question. (14) That the said employers were not made parties to the arbitration. I found that in the above circumstances the respondent was a workman in the employment of the appellants in the sense of the Workmen's Compensation Act 1906, that the list of former employers furnished by the respondent fully complied with the requirements of section 8 (1) ( c) (i) of the Act, and that the defective information supplied by him as to the use of white lead while employed by these people did not bar his claim for compensation. I therefore found that the appellants were liable to pay the respondent compensation in terms of said Act, and fixed the amount of compensation at 12s. 4d. per week, payable from 30th April 1908, the certified date of disablement, till said 15th April 1909, and I found the respondent entitled to expenses.”

The questions of law for the opinion of the Court were—“1. Whether the respondent is a workman to whom the Workmen's Compensation Act applies? 2. Was the list produced by the respondent of the names and addresses of the persons other than the appellants by whom he was employed during the twelve months prior to 1st March 1908, coupled with the erroneous statement that he did not use white lead when employed by these people, sufficient compliance with the provisions of the Workmen's Compensation Act 1906, section 8 (1) ( c) ( i)?”

Argued for appellants—(1) The respondent was not a workman but an independent contractor. Apart from the fact that he was paid by the appellants for any work he did for them, there were here no indicia of service. There was no personal control or supervision on the part of the appellants, and the respondent had no duty to account to them for the work he did. He was free to accept work from others and to refuse any particular job if he thought it unsuitable. The clear inference from these facts was that the respondent was an independent contractor— Hayden v. Dick, November 26, 1902, 5 F. 150, 40 S.L.R. 95; Doharty v. Boyd, 1909 S.C. 87, 46 S.L.R. 71; Chisholm v. Walker & Company, 1909 S.C. 31, 46 S.L.R. 24; Simmonds v. Faulds, 1901, 17 T.L.R. 352; Squire v. Midland Lace Company, [1905] 2 KB 448. This was a pure question of law, not one of mixed fact and law, as in the case of Mackinnon v. Millar, 1909 S.C. 373, 46 S.L.R. 299. The question therefore was one for the Court and not for the arbiter. (2) Recovery of compensation was conditional upon the workman supplying the information required by sub-section 1 ( c) (i) of section 8 of the Act. The respondent had failed to satisfy this condition. He was bound to furnish true and accurate information, and not having done so he was barred from recovering compensation.

Argued for respondent—(1) The question whether a man was a workman was a question of fact on which the decision of the arbiter was final unless it was clearly inconsistent with the facts. That was not so here, and the Court therefore would not interfere with what he had done— Hayden v. Dick ( sup. cit.); Doharty v. Boyd ( sup. cit.); Chisholm v. Walker & Company ( sup. cit.); Paterson v. Lockhart, July 13, 1905, 7 F. 954, 42 S.L.R. 755; M'Cready v. Dunlop & Company, June 16, 1900, 2 F. 1027, 37 S.L.R. 779; Evans v. The Penwyllt Dinas Silica Brick Company, 1901, 18 T.L.R. 58; Dewhurst v. Mather, [1908] 2 KB 754; Vamplew v. Parkgate Iron and Steel Company, [1903] 1 KB 851. (2) The respondent was not barred from claiming compensation. The obligation imposed upon him by the statute was to furnish a list of names and addresses and he had done so. The false statement complained of was made in the course of the proceedings and had in no way prejudiced the appellants.