Scottish Court of Session Decisions

This was a stated case under the Workmen's Compensation Act 1897 following upon an interlocutor pronounced by the Sheriff-Substitute of Ayrshire in a statutory arbitration in which the present appellant, James Murnin, labourer, claimed compensation from the respondent Andrew Calder-wood, builder and contractor.

The following was the case as stated by the Sheriff-Substitute:—“This is an arbitration in which there was no proof led, but, as appears from the pleadings, the facts are as follows, viz.—On 4th July 1898 the pursuer was engaged, with other workmen in the defenders employment, in demolishing a wing of Elmbank House, Kilmarnock, which wing had formerly been occupied as a museum. A steam crane was used to aid in the process of demolition. In the course of the operation the pursuer met with an accident, in consequence of which he sustained serious personal injury. Though before the process of demolition began Elmbank House had exceeded thirty feet in height, no part of it was at the time of the accident so high as thirty feet, and the said wing had never exceeded thirty feet in height.

I decided, in respect that no part of said Elmbank House at the time of the accident exceeded thirty feet in height, and that work at which the pursuer was engaged was not an engineering work within the meaning of the Workmen's Compensation Act 1897, that the pursuer's claim against the defender under the said Act was excluded by the terms of section 7 thereof. I accordingly sustained the defences and dismissed the action.

The questions of law for the opinion of the Court are—(1) Whether the pursuer is entitled to compensation from the defender for injuries sustained by him on the said building in course of demolition, that building being at the date of the accident to the pursuer under thirty feet in height, and the wing at which the accident took place never having exceeded thirty feet in height, although the main part of the building was beyond that height when the demolition began? and (2) whether the work on which the pursuer was engaged at the time of the accident was an engineering work within the meaning of the Workmen's Compensation Act 1897, in respect that a steam crane was being used in the demolition of the building.’ .…

Sec. 7 (1) of the Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37) provides that “This Act shall apply only to employment by the undertakers, as hereinafter defined, on or in or about a railway, factory, mine, quarry, or engineering work, and to employment by the undertakers, as hereinafter defined, on, in, or about any building which exceeds thirty feet in height, and is either being constructed or repaired by means of a scaffolding, or being demolished, or on which machinery driven by steam, water, or other mechanical power

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is being used for the purpose of the construction, repair, or demolition thereof.”

Argued for appellant—The claim did fall under the statute, the case being governed by that of Mellor v. Tomkinson & Company [1899], L.R., 1 Q.B. 374.

Argued for the respondent—The Sheriff had only decided one of the points raised by section 7, viz., that decided in the case of Billings v. Holloway, L.R., 1899, 1 Q.B. 70, as to whether the building exceeded 30 feet in height at the time of the accident. The other questions raised by sec. 37 had never been argued before or decided by him. But the Court would only consider the specific point decided by the Sheriff-Durham v. Brown Brothers, December 13, 1898, 36 S.L.R. 190. It was not enough merely to table section 7, but the exact point raised must be stated, and no other could be decided.