Scottish Court of Session Decisions

Section IX. (h) of the Act of Sederunt of 3rd June 1898 provides that “When a Sheriff has refused to state and sign a case the applicant for the case may, within seven days from the date of such refusal, apply by a written note to one of the Divisions of the Court of Session for an order upon the other party or parties to show cause why a case should not be stated. Such note, which may be in the form of Schedule C appended hereto, shall be accompanied by the above-mentioned certificate of refusal, and shall state shortly the nature of the cause, the facts, and the question or questions of law which the applicant desires to raise, and any Judge of the Division, or in vacation the Lord Ordinary officiating on the Bills, may, after intimation to the other party or parties, dispose of it summarily.” …

This was an application under the above section at the instance of Hobbs & Samuels, painters and decorators, Glasgow, against the widow and children of the late David Bradley, craving for an order on the respondents to show cause why the Sheriff should not state a case in the matter of a statutory arbitration between the parties.

The following note was presented by the applicants—“In this arbitration, which was decided by the Sheriff-Substitute (Spens) of Lanarkshire at Glasgow on 23rd December 1897, the said Sheriff has refused, conform to certificate herewith produced, to state and sign a case for which the appellants duly applied in writing.

This is an arbitration under the Workmen's Compensation Act 1897, brought before the Sheriff of Lanarkshire at Glasgow, in which the Sheriff is asked to find that compensation is due to the respondents, and to ordain the appellants to pay to the respondents the sum of £241, 16s. sterling in such proportions to each as the Court might direct.

The respondents are the widow and children of David Bradley, a painter in the employment of the appellants, who had the contract for the painting-work on the Electric Station being erected by the Corporation of Glasgow in Corn Street, Glasgow. The said David Bradley, on 20th September 1899, while engaged at his work in said building, fell from scaffolding and sustained injuries, in consequence of which he died.”

Proof was led before the Sheriff, and parties were heard of this date (December 14, 1899), when the following interlocutor was pronounced—‘ Glasgow, 23 rd December 1899.—Having heard evidence, Finds the following facts are proved or admitted—(1) that the applicant Mrs Bradley is the widow of the deceased David Bradley, who was a painter in the employment of the defenders; (2) that the other persons named in the application are the children of the said deceased David Bradley; (3) that the defenders were the contractors for the painting-work on, in, and about the Electric Station building then in course of construction for the Corporation of Glasgow at Port Dundas, Glasgow, at the date of David Bradley's death; (4) that on 20th September 1899 the deceased was engaged on a scaffolding about 1 p.m., in connection with the contract above referred to, painting certain steel bars at a height of about 50 feet from the ground, the building itself being altogether about 60 feet high, when for some unexplained reason he accidentally fell to the ground, sustaining fatal injuries from which he shortly thereafter died; (5) that when the deceased met with this accident he was acting in the ordinary course of his employment; (6) that the defenders were undertakers in the sense of the 7th section of the Workmen's Compensation Act, inasmuch as the defenders were contractors for what was constructive work in connection with a building over 30 feet in height, and the deceased when he met with the accident was standing on a scaffolding and engaged in said constructive work; and (7) that the earnings of deceased for

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three years previous to his death in the defenders' employment amounted to £235: Finds therefore, as matter of law, the defenders are liable in compensation to the deceased's representatives, being the applicants in these proceedings, to the extent of the said sum of £235: Awards this sum to the applicants, to be subsequently allocated by the arbiter, and on consignation of the said sum of £235 with the Sheriff-Clerk of Lanarkshire, exoners and discharges the respondents of all claims for compensation for the death of the said deceased David Bradley, and whenever said consignation has been made, appoints the case to be again laid before the arbiter, reserving all questions of expenses hoc statu.’

The applicants had simply contracted for the painting-work of the said new electric station to be erected by the Corporation of Glasgow, and had not undertaken the construction or repair of the said building.

The questions of law proposed to be submitted for the opinion of the Court are—(1) Whether the appellants are ‘undertakers’ in the sense of section 7 of the Workmen's Compensation Act 1897? and (2) Whether in the circumstances the appellants are liable to the respondents in compensation for the death of the said David Bradley under the Workmen's Compensation Act 1897?

The appellants pray for an order on the respondents the said Mrs Annie Sweeney or Bradley and others to show why a case should not be stated by the Sheriff for the following reasons—(1) That while under the said Act employers are only liable in compensation if they are ‘undertakers’ in the sense of section 7 thereof, the appellants were not such undertakers. (2) That the only ground of liability alleged is that the appellants were persons undertaking the construction of the said building which in law they were not, in respect that they were merely contractors for the painting-work in connection with the building being erected. (3) That the Sheriff is wrong in holding that the appellants were ‘undertakers’ in the sense of the said Act, and thus liable in compensation.”

The Sheriff-Substitute's minute of refusal was in the following terms:—“I, Walter Cook Spens, Advocate, Sheriff-Substitute of Lanarkshire, certify that I have refused to state and sign a case, for which the respondents duly applied to me in writing, asking that I should submit for the opinion of the Court of Appeal the question ‘Whether the work on which the deceased was engaged at the time of the accident was construction of the building in question in terms of section 7 (1) of the Workmen's Compensation Act 1897.’ The reason for my refusal was that the question of whether the deceased when he met with fatal injury was engaged in work of construction was solely a question of fact.”

Objections were lodged by the respondents in the following terms:—“The respondents submit that the note should be refused with expenses on the following grounds, viz.—( First) Because the questions of law which are here stated to be proposed for the opinion of the Court were not submitted to the Sheriff-Substitute by the appellants in their said minute of application to him to state and sign a case. The sole question which the said minute set forth was this—‘Whether the work on which the deceased was engaged at the time of the accident was construction of the building in question in terms of section 7 (1) of the Workmen's Compensation Act 1897.’ The appellants having thus failed to comply with section IX. ( a) of the Act of Sederunt to regulate in certain points the procedure under the said statute, dated 3rd June 1898, are not in titulo to make the present application; ( Second) Because the questions referred to in the note, or at all events the second of said questions, are not such as the Court can be called upon to consider and answer; ( Third) Because the Sheriff-Substitute's decisions, both upon the petition and the minute to state a case, were sound.”

Argued for applicants—It was clear that there was a question of law involved in what the Sheriff had held to be one only of fact. The point had been directly considered and decided in England as raising a question of law— Wood v. Walsh & Company [1899], 1 Q.B. 1009. That being so, the only question was whether owing to the form of this note being somewhat inaccurate, it was incompetent for the Court to arrive at that question of law, which was the question really at issue between the parties. Admittedly the note was not quite accurate, the questions suggested being fuller than the one actually raised before and determined by the Sheriff, but it was only intended to set out the true question, and did set it out. The Act of Sederunt ought not to be read too strictly, and an informal application such as this should not be considered so critically as formal pleadings. There would certainly be no greater strictness in form observed in the preliminary stage than was observed in dealing with a case which had de facto been stated— Barclay, Curie, & Company v. M'Millan, November 10, 1899, 37 S.L.R. 61. If necessary the note might be amended at this stage.

Argued for respondents—This note was incompetent. The same question must be submitted to the Court as was submitted to and decided by the Sheriff. Here the applicants proposed to raise entirely new points. That was altogether at variance with the terms of the Act of Sederunt, which must be strictly carried out. Nor was it now competent to amend the note, there being no provision for that in the Act of Sederunt.