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Cite as: 46 ScotLR 680, [1908] UKHL 680

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SCOTTISH_SLR_House_of_Lords

Page: 680↓

House of Lords.

Friday, March 6 1908.

(Before the Lord Chancellor (Loreburn), Lords Ashbourne, Macnaghten, James of Hereford, Robertson, and Atkinson.)

46 SLR 680

Morgan

v.

Tydvil Engineering and Ship Repairing Company.

( On Appeal From The Court Of Appeal In England.)

Subject_Master and Servant — Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), sec. 7, sub.-secs. (1) (2) — Undertaker — Occupation of Dock.
Facts:

A foreman engineer was sent by his employers on board of a ship lying in a wet dock to take notes of repairs that they were to execute. While on board he accidentally fell and was injured.

Held that the employers were not in actual occupation of the dock and were not “undertakers,” and that therefore the Workmen's Compensation Act 1897 did not apply.

Houlder Line, Limited v. Griffin, [1905] AC 220, 42 S.L.R. 865, followed.

Headnote:

The applicant for compensation was a foreman engineer in the employment of the respondents, who were engineers and ship repairers at Cardiff. He was sent by the respondents on board of a ship lying in a wet dock in order to take notes of certain repairs which were to be executed by them. While upon the ship he fell accidentally and was injured.

The County Court Judge refused compensation. The Court of Appeal ( Collins, M.R., Cozens-Hardy and Farwell, L.JJ. sustained his judgment.

At the conclusion of the appellant's argument—

Judgment:

Lord Chancellor (Loreburn)—This is a short case, and it has been put very shortly. The appellant was a foreman engineer, sent on board a steamship then in dock to take notes of repairs that were to be executed by his employers. He fell and injured himself. The only point is whether the Workmen's Compensation Act applies. It cannot apply unless the employers of the foreman engineer, who sent him on board the ship, are “undertakers” within the meaning of the Act. They cannot be undertakers within the meaning of the Act unless they were persons “having actual use or occupation of a dock or of any premises within the same or forming part thereof.” I cannot understand myself how it could be held that if a tradesman sends a servant on board a ship then lying in dock in order to take notes of repairs to be executed the tradesman is using or occupying the dock. It would be equally just to say that if a tradesman sends materials to a private house to be delivered he is in use or occupation of the house. But the point has, I think, been in substance decided in the case of the Boulder Line, Limited v. Griffin in this House. Therefore I think this appeal ought to be dismissed, and I move your Lordships accordingly.

Lord Ashbourne—I concur, but I feel bound to add that but for the previous decision in this House I should have entertained considerable doubt.

Lord Macnaghten—I agree.

Lord James of Hereford—I agree in the judgment of the Lord Chancellor, and I should like to add a few words in explanation of the view which I take of the subject. When Houlder's case was before your Lordships the arguments addressed to us were very similar to those which have been addressed to your Lordships to-day by the learned counsel, and every one of the members of the House who heard that case, with the exception of myself, came to the conclusion that the shipowner, the defendant, was not liable. I differed then, feeling as I did the force of very much the same arguments as those which have been addressed to us to-day, but of course that decision must prevail, and I accept the judgment of my colleagues most implicitly. But this appears to me to be a stronger case in favour of the non-liability of the defendant than that was. In that case the shipowner, if I recollect rightly, was paying dock dues; he therefore, when his ship was lying in the dock for the purpose of coaling, was “occupying” in a sense only, in the

Page: 681↓

sense, as it were, that he was the renter of a right to lie in the dock, but he was held not to be liable. But in this case the occupation does not go so far as that of the shipowner. In that case the ship was there in the dock by right of a contract which had been made, which certainly was some evidence, as I thought, of occupation. But here the person whom it is sought to make liable is a person who sent the appellant on board the shipowner's ship. How that person could for a moment be supposed to be an “occupier” of the dock I cannot myself realise. It was not his ship, he had nothing there that caused any occupation. He simply employed a person to take notes of work to be done on board that ship. That seems to me to make the case much weaker than Houlder's case, but in any event the decision in that case must apply to this.

Lord Robertson—I am clearly of opinion, apart from authority, that the Act does not apply to the present case.

Lord Atkinson—I concur with Lord Robertson in thinking that in this case there was no use or occupation of the dock or of any premises therein, and I should have come to the same conclusion if Houlder's case had never been decided.

Judgment appealed from affirmed, and appeal dismissed.

Counsel:

Counsel for Appellant— C. A. Russell, K.C.— Raymond Allen— A. Parsons. Agents— Smith, Rundell, & Dods, Solicitors, for Lewis Morgan & Box, Solicitors, Cardiff.

Counsel for Respondents— Atherley Jones, K.C.— J. Sankey— G. Beyfus. Agents— Beyfus & Beyfus, Solicitors.
1908