Scottish Court of Session Decisions

This was an appeal upon a stated case from the decision of the Sheriff-Substitute at Glasgow ( Balfour) in an arbitration under the Workmen's Compensation Act 1897, between Charles Strain, quay labourer, Glasgow, claimant and appellant, and William Sloan & Company, shipowners, Glasgow, respondents, in which the claimant claimed compensation for injuries sustained by him.

The Sheriff-Substitute stated as follows:—“The following facts were admitted— First. That on 8th May 1900 the appellant, who is a quay labourer, was in the employment of the respondents at the wharf occupied by them in Clyde Place, Glasgow, and was assisting in the work of removing iron girders from the street immediately outside the wharf shed to the side of a steamship belonging to the respondents, which was being loaded. Second. That the girders were lifted by means of a hand crane on to a truck, by which truck they were conveyed to the ship's side. Third. That while removing the hand crane from one pile of girders to another pile, both of which lay in the street immediately outside the wharf shed, the appellant got jammed between the platform of the crane and one of the girders, and sustained injuries.”

On these facts the Sheriff—Substitute found in law that in accordance with the decision in the case of Hall v. Snowden, Hubbard, & Company, 1899, 2 Q.B. 136, the Factory and Workshop Act 1895 did not apply to the present case, in respect that the accident did not occur on the quay but on the street; and that no accident occurred on, in, or about a factory within the meaning of the Workmen's Compensation Act 1897.”

The Sheriff-Substitute accordingly dismissed the application.

The question of law for the opinion of the Court was—“Was the Sheriff right in deciding that the Workmen's Compensation Act 1897 did not apply to the employment at the time?”

The Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37) enacts as follows, sec. 7 (1)—“This Act shall apply only to employment by the undertakers as hereinafter defined on, in, or about, inter alia, a factory. (2) In this Act … ‘factory’ has the same meaning as in the Factory and Workshop Acts 1878 to 1891, and also includes any dock, wharf, quay, warehouse machinery or plant to which any provision of the Factory Acts is applied by the Factory and Workshop Act 1895 … ‘Undertakers’… in the case of a factory … means the occupier thereof within the meaning of the Factory and Workshop Acts 1878 to 1895.”

The Factory and Workshop Act 1895 (58 and 59 Vict. cap. 37) enacts as follows, Section 23 (1)—“The following provisions, namely (i) section 82 of the principal Act, (ii) The provisions of the Factory Acts with respect to accidents, (iii) Section 68 of the principal Act with respect to the powers of inspectors, (iv) Sections 8 to 12 of the Act of 1891 with respect to special rules for dangerous employments, and (v) The provisions of this Act with respect to the power to make orders as to dangerous machines, shall have effect as if ( a) every dock, wharf, quay, and warehouse, and so far as relates to the process of loading or unloading therefrom or thereto all machinery and plant used in that process … were included in the word ‘factory,’ and the purpose for which the machinery is used were a manufacturing process, and as if the person who by himself his agents or workmen temporarily uses any such machinery for the before-mentioned purpose were the occupiers of the said premises; and for the purpose of the enforcement of those sections the persons having the actual use or occupation of a dock, wharf, quay, or warehouse, or of any premises within the same or forming part thereof, and the person so using such machinery, shall be deemed to be the occupier of a factory.”

Argued for the claimant and appellant—(1) The Sheriff-Substitute had held that because the accident had occurred in the street “immediately outside” the wharf, the Workmen's Compensation Act did not apply. The Act, however, did apply in direct terms, because the accident occurred “about” a factory. The wharf occupied by the defenders was per se, apart from any question about machinery, a factory within the meaning of the Act— Jackson v. A. Rodger & Company, July 4, 1899, 1 F. 1053; Bruce v. Fraser, March 8, 1900, 2 F. 717, opinion of Lord President (Balfour), 721. No doubt the decision in Jackson v. A. Rodger & Company, supra, had been to some extent explained away by the second case of the same name— Jackson v. A. Rodger & Company, January 30, 1900, 2 F. 533; but this latter decision, and the English case of Flowers v. Chambers, 1899, 2 Q.B. 142, on which it proceeded, had been practically overruled in Stuart v. Nixon & Bruce, 1901, A.C. 79. The case of Stuart decided that in terms of section 23 of the Factory Act of 1895 machinery on board a ship loading or unloading from or to a wharf, on which no machinery was proved or averred to have been erected, was a factory within the meaning of the Act. This struck at the decision in the second case of Jackson, in which it was held that the word “wharf,” as used in section 23 of the Act of 1895 meant a wharf on which machinery was erected. The decision in the first case of Jackson might therefore be considered a sound one. If the Court were, however, of opinion that it was necessary for the appellant to show, in order to constitute the wharf a factory, that there was machinery upon it, he asked for a proof to enable him to do so.

(2) Whether the wharf was a factory or not, the crane, which was machinery being

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used in the process of loading from a wharf, was itself a factory within the meaning of the Act. The removing of the girders from the street where they lay was part of the process of loading— Stuart v. Nixon & Bruce, 1901, A. C. 79, opinion of Lord Chancellor (Halsbury), 89.

Argued for the respondents—(1) The place at which the accident occurred was not “about” a factory— Haddock v. Humphrey, 1900, 1 Q.B. 609. A wharf or quay was not per se a factory. Some limitation required to be put on the word “wharf,” for the Act did not apply to all wharfs— Hall v. Snowden, Hubbard & Company, 1899, 2 Q.B. 136. This limitation was that there must either be machinery on the wharf, which could be inspected in terms of the Factory Acts, or it must be a wharf to which some of the provisions of the Factory Acts are applied by the Act of 1895. In the case of Hall no machinery was used on the wharf, and the only provision of the Factory Acts which could apply to it was section 18 of the Act of 1895 as to notices of accidents. It was held that that section could not be made applicable in that particular case, because it is only when accidents occur in the factory that they require to be notified, and the accident there occurred outside the wharf, with the result that the Workmen's Compensation Act 1897 did not apply—the reason being, not that the place where the accident occurred was too far away from the wharf to be “about” it within the meaning of the Act, for the judges indicated an opinion that it was not, but because the accident having occurred not on the wharf but only “about” it the wharf itself was not a factory, and therefore the accident did not take place “about” a factory. The facts in that case were practically the same as in the present, which was ruled by it. It was for the claimant to prove that there was machinery on the wharf, or that some of the provisions of the Factory Acts applied to it— Jackson v. Rodger, January 30, 1900, 2 F. 533; Hall, cit. The second case of Jackson, cit. had never been overruled. (2) The hand crane used in the present case was not a factory within the meaning of the Act. It was being used for the purpose of lifting girders in the street outside the wharf on to a truck. That was not part of the process of loading or unloading from or to a wharf in terms of section 23 of the Factory Act of 1895. The process of loading or unloading was limited to loading or unloading from the wharf to the ship or from the ship to the wharf— Laing v. Young & Leslie, November 2, 1900, 38 S.L.R. 29; Merrill v. Wilson, Sons, & Company, Limited, 1901, 1 Q.B. 35, opinion of A. L. Smith, M.R., 41.