Scottish Court of Session Decisions

Lord Adam—This is a case stated under the Workmen's Compensation Act 1897. The facts as stated by the Sheriff are:— [ His Lordship then referred to the facts as already narrated]. Upon these facts the Sheriff has found that compensation is due, and the question which he calls “of law” is— [ his Lordship quoted the question]. That question arises in this way: Section 7 of the Act says that the Act is to apply only to employment by the undertakers “on, in, or about a railway, factory, mine, quarry, or engineering work, and to employment by the undertakers … on, in, or about any building which exceeds 30 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, is being used for the purpose of the construction, repair, or demolition thereof.” Then that is qualified by sub-section 3 to this effect: “A workman employed in a factory which is a shipbuilding yard shall not be excluded from this Act by reason only that the accident arose outside the yard in the course of his work upon a vessel in any dock, river, or tidal water near the yard.” These are the sections of the Act under which this claim was brought, and in construing them the Sheriff has held that the Prince's Dock, which is two miles from the respondent's shipbuilding yard, is, in terms of the Act, near the yard, and therefore that the respondent is entitled to compensation. Mr Wilson asked us, as I understood, to give a legal construction of the word “near.” How any Court could do so I do not understand. The question whether the yard is near is a question of circumstances in every case, and to ask us, as was suggested, to lay down the law that any dock over a mile and a half distant is not near the yard in the sense of the Act, is, in my opinion, perfectly preposterous. I agree entirely with what was said by Lord Justice Smith in the case of Lowth (L.R. [1899], 1 Q.B. 1003) that the question whether one place is near another is entirely a question of circumstances, entirely a question of fact, and entirely a question for the tribunal which determines the claim. I think, therefore, that this claim should be refused. At the same time I have no hesitation in saying that I should have come to the same conclusion as the Sheriff-Substitute upon the facts stated. The 7th section no doubt bears that compensation is to be limited to workmen “on in, or about” the railway or factory, and Mr Wilson says that that is the overriding clause, and that in every case, to be entitled to the benefits of the Act, the workman must be injured in close proximity to the factory. In my humble opinion the 3rd sub-section has been introduced to modify that, for the reason that from the nature of shipbuilding it is necessary for the completion of the ship that it should be, as it was in this case, removed to a dock for completion. In these circumstances, the Act says that if the dock is “near”—and I think it is impossible to define in the abstract what “near” is—the liability of the undertaker will still continue. Looking at the provisions of the Act, I think the Act contemplated the ship being taken from the yard to a dock for completion. Now, we all know that docks are not always in close proximity to, or within half a mile or a mile and a half of shipbuilding yards in the Clyde or elsewhere. Accordingly, the intention of the Act was, that where there are docks near places where there are shipbuilding yards, and when in the course of construction of a ship it is necessary to remove it from the yard to the dock, the liability of the undertaker should continue.

These remarks are of course obiter, because I think there is no question of law before us, but I see no reason why I should not express my opinion upon the matter.

Lord M'Laren—I agree in the result, but I am not sure that I should express myself so strongly as Lord Adam has done regarding the difficulty of answering questions put to us which involve matters of fact. I have in previous cases observed, and I continue to be of opinion, that where a question of the construction of the statute arises, we may assist the sheriffs by giving our views of the construction of the statute, even although we might not be able to give a decision which would cover the whole subject-matter in dispute because there are questions of fact also involved. Now, in a previous case, where a carter in driving home from his master's work toppled his cart over an embankment, we held that at the time when he met with the personal injury he was not in or about a factory. In other words, we were of opinion that the situation and the distance were such as to be altogether outwith any possible construction of the words “in or about.” I see that in a cognate decision in the English Court of Appeal— Lowth against Ibbotson—Lord Justice Smith, expressing the opinion of the Court, while pointing out that propinquity to the factory is a question of fact, says that he quite agrees with the County Court judge that the distance in question was too great to satisfy the words of the Act. Now, in the present case, I hold that, as a matter of construction, the expression “near a shipbuilding yard” must receive a wider meaning than the expression “in or about a factory,” because if the words had meant the same thing, sub-section 3 would have been altogether unnecessary. The introduction of that sub-section was to cover a case where a ship could not, on a fair construction, be held to be in or about a shipbuilding yard, which is the factory, but where, nevertheless, having regard to the custom in the shipbuilding trade, and the necessity of a ship being taken to a dock, which would not always be in or about the yard, it was considered desirable to suppose an extension of the employment of the factory to a dock that in a reasonable sense might be regarded as in proximity to the yard. Now, I think that in this case the Sheriff

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