Scottish Court of Session Decisions

On 2nd August 1899 Mrs Johanna Jack or Henderson, as an individual and as guardian and administrator-in-law of her two pupil children, brought an action at common law and under the Employers Liability Act 1880 against the Corporation of the City of Glasgow, in which she claimed damages for the death of her husband Walter Henderson, carter, Glasgow. After sundry procedure in that action, the pursuer on 17th November 1899 lodged a minute, in which she moved the Court, in the event of its being determined that the injuries sustained by her husband were injuries for which the defenders were not liable in the action, to determine whether or not she was entitled to compensation under the Workmen's Compensation Act 1897.

The Sheriff-Substitute ( Guthrie) on 30th November 1899 pronounced the following interlocutor:—“ Finds that the pursuer has not stated facts sufficient and relevant to support the prayer of the petition, but before dismissing the petition, on the pursuer's motion, appoints Tuesday, 5th December next, at 10·30 o'clock a.m., as a diet for hearing parties as to the pursuer's claim under the Workmen's Compensation Act in terms of section 1, sub-section 4 thereof.”

On 14th December 1899 the Sheriff-Substitute pronounced this further interlocutor:— “Having considered the cause, assigns Tuesday 19th December current, at two o'clock p.m., as a diet under the Workmen's Compensation Act, and grants diligence against witnesses and havers for both parties for that and any succeeding diet.”

Note.— … “It has now been determined in this action that the injury which the pursuer has sustained is one for which the employer is not liable in the action, but it has not yet been determined that the employers would have been liable to pay compensation under the provisions of the Workmen's Compensation Act. Thus the question arises whether it is competent to proceed to assess compensation under the Workmen's Compensation Act, and it is contended that before anything can competently be done under that Act that point must be determined—in short, that both conditions must be fulfilled before any proceedings for assessment of compensation can even be attempted.

It cannot be determined that the employer is so liable without disposing of what would have been a preliminary objection in a petition originally brought under the Act, viz., that the defenders' works are not a factory in the sense of the Act. That is an objection which in most cases is decided after evidence has been taken on the whole cause. One cannot, apart from a strictly technical construction of the words of the section, see any reason why we should not now proceed, the pursuer having by minute restricted herself to a claim under the Act, to assess the compensation in the usual way, leaving the large question whether any compensation is due, including that whether the defenders' works are a factory, to be dealt with at the end of the case. It is quite arguable that this sub-section was meant to apply only where proof has been taken, and full materials for deciding the second of the two points exist in the ordinary action, and that it does not apply where the action falls to be dismissed on relevancy. In this remedial Act, however, that is not, I humbly think, a fair construction. Even if evidence had been adduced on the question of common law liability, it might have failed to touch the question whether these works are a factory, which was not raised. I do not think the collocation of the words of the Act precludes the inquiry from being made in the usual way as in a Workmen's Compensation petition, and the question whether the employer is bound to pay compensation

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under this Act being determined at the close of the inquiry.”

After a proof the Sheriff-Substitute assoilzied the defenders. Thereafter he stated a case for appeal under the Workmen's Compensation Act, which, after detailing the procedure above set forth, proceeded as follows:—“ By minute of admissions the parties made certain admissions regarding the various operations carried on at said refuse destructor or despatch works aforesaid, viz.—The refuse consisted of three classes, as follows, viz.—(1) Long manure, that is, the manure from stables and byres; (2) street sweepings, which are subdivided into two classes, viz., wet and dry; (3) contents of ashpits.

(1) Long Manure.—This, when brought to the works, is tipped direct from the carts in which it is conveyed down shoots into railway waggons underneath, and is then taken by rail to customers or to various tips on properties owned or leased by the Cleansing Department of the Corporation.

(2) Street Sweepings.—In wet weather the sweepings from the street are tipped from the carts into large tanks, called slurry tanks. While in those tanks the water is allowed to drain off until the mixture is of such a consistency that it can be removed by manual labour into railway waggons along with the refuse from ashpits, and this is disposed of in the same manner as ‘long’ manure, by being sold to customers or sent to the Corporation tips.

In dry weather the sweepings from the streets are tipped down shoots into a revolving screen driven by steam. This riddles the sweepings, a proportion of which falls on to a floor at a lower level, where it mixes with the riddlings of the refuse removed from ashpits. Such of the street sweepings as will not pass through the riddles are forced on to an endless carrier beside the screens, by which they are conveyed to furnaces and there cremated (? burned).

(3) Contents of Ashpits.—The contents of ashpits when brought to the works are treated in a manner similar to the dry sweepings from the streets by being screened. Such of the refuse as will pass through the screens falls to a floor underneath them, and thereon mixes with the street sweepings which have passed through the screens. These are conveyed by manual labour to railway waggons, and disposed of in manner above stated, either by being sold to customers, or taken by rail to the tips.

That the following was the amount of revenue and expenditure on these works for the year ending 31st May 1899, viz.—

Unsaleable refuse sent to tips, 7428 waggons (of 6 3 4 tons each), equal to 48,924 tons, 1s. 6 1 8d.…	£3694	15	8
Saleable refuse sold, 3471 waggons (of 6 3 4 tons each), equal to 23,429 tons, at 1s. 7 1 2d..	1903	12	0
Less revenue from saleable refuse, 3471 waggons at 5s.	867	15	0
	£4730	12	8

being a loss to the Department, which had to be provided for by the respondents out of an assessment for cleansing purposes.

I thereafter held that the following facts had been admitted or proved:—

(1) That the appellant's husband Walter Henderson was a carter in the employment of the respondents in their Cleansing Department.

(2) That on the 15th May 1899 he was carting ‘long manure,’ viz., manure from stables and byres, to the City's Cleansing Department Kelvinhaugh Despatch Works, and when waiting in those works for his turn at a tip he fell into a tank and was injured, from the effects of which he died the following day.

(3) That when the said accident happened the said Walter Henderson had with other carters entered the works and was proceeding to certain tips by which manure such as he was carting was discharged into railway trucks at a siding in said works, and that he had with them proceeded on the east side of the tanks, a route which was frequently used by carters in approaching the tips, though the route to the west side of these tanks was that prescribed by the regulations, or by the officials in authority at the works.

(1) That the deceased was about two yards or less from his horse and cart, and having carelessly stepped backwards to sit upon or lean against a protecting bar which was placed along the tanks, it gave way when he touched it, in consequence of the stanchion by which it was supported being broken. The bar was about two-and-a-half feet above the level of the floor, as shown on plan No. 15 of process.

(5) That the said Walter Henderson, while standing at said bar, was near enough his horse to have proper control over it.

(6) That the accident to the said Walter Henderson was one arising out of and in the course of his employment, and that his average wages were 27s. a-week.

(7) That the said works were carried on for the fulfilment of the powers and duties set forth in the ‘Glasgow Police Act’ 1866, section 344, and ‘The Glasgow Police (Amendment) Act’ 1890, section 34, and that the operations in said works are as set forth in said minute of admissions, and I found in law, following Paterson v. Caledonian Bailivay Company, that the said works were not a factory within the scope of ‘The Workmen's Compensation Act’ 1897.”

The questions of law stated for the opinion of the Court were as follows:—“ (1) Are the said refuse despatch works of the respondents at Kelvinhaugh, as described in the minute of admissions by the parties, a factory within the scope of the Workmen's Compensation Act 1897? (2) It having

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been held on 30th November 1899 that the appellant had not stated facts sufficient and relevant to support the prayer of the petition in the Ordinary Court, and it not having been ascertained at that date as a matter of fact that the respondents would have been liable to pay compensation under the provisions of said Workmen's Compensation Act 1897, ought the said action to have been dismissed? Or ought the respondents to have appealed against the Sheriff-Substitute's interlocutors of 30th November or 14th December 1899, allowing the case to proceed under the Workmen's Compensation Act 1897?”

The Sheriff-Substitute further stated:—“On the request of the respondents, I certify that I refused the respondents' application to state the question, ‘Whether the accident to the said Walter Henderson was one arising out of and in the course of his employment,’ in respect that it is a question of fact and not of law. But in the event of the Court being of opinion that it is a question of law, I humbly submit the same as a third question in the case as stated.”

Section 7 of the Workmen's Compensation Act 1897, and section 93 of the Factory and Workshop Act 1878, are (in so far as applicable here) quoted ante, p. 697.

Section 1, sub-section (4), of the Workmen's Compensation Act 1897 enacts that if within the time “hereinafter in this Act limited for taking proceedings, an action is brought to recover damages independently of this Act for injury caused by an accident, and it is determined in such action that the injury is one for which the employer is not liable in such action; but that he would have been liable to pay compensation under the provisions of this Act, the action shall be dismissed; but the Court in which the action is tried shall, if the plaintiff shatf so choose, proceed to assess such compensation, and shall be at liberty to deduct from such compensation all the costs which in its judgment have been caused by the plaintiff bringing the action, instead of proceeding under this Act.”

Argued for the appellant—These works fell under the definition of factory, because while it could not be maintained that they existed primarily for the sake of trade or gain, they certainly were used for these purposes. The Corporation used them for trading in a marketable commodity and though the amount realised by sales did not cover the expenses of the works, it reduced the loss to the Corporation in the disposal of their refuse and thus was a gain to them. They exercised a special power under a private Act to render the refuse adaptable for sale and thus reduce their expenditure. It might be that in the future there would be an actual profit over the whole working. The case of Caledonian Railway Company v. Paterson, November 17, 1898, 1 F. (Just. Ca.) 24, on which the judgment of the Sheriff-Substitute was founded, was not applicable. In that case the laundry existed already for the purposes of the hotel and was only incidentally used for guests. Here the works were erected for this specific purpose. The other requirements of the definition were satisfied, there being steam power employed. The point raised by the respondents as to the accident having occurred in a part of the works not used for manufacturing purposes was not in the case, and could not therefore be taken. The procedure followed by the Sheriff-Substitute had been in accordance with the statutory provisions— Edwards v. Godfrey [1899], 2 Q.B. 333. But in any event it was the duty of the defenders to have appealed at the time when the new phase of the case was entered into, and they were barred from doing so at this stage— North British Railway Company v. Gledden, June 26, 1872, 10 Macph. 870. 3. The Sheriff-Substitute was right in holding that the question whether the accident was in the course of the workman's employment was purely one of fact.

Argued for the respondents—(1) The appellant must show that the destructor was a commercial concern, set up and carried on for private profit. It was in point of fact not set up voluntarily but under compulsion. The true test was the motive with which it was set up, and clearly it was not for the sake of gain, but to get rid of the town refuse. Though a certain amount was made out of the saleable refuse, that did not really cover working expenses. The case was even stronger than that of Caledonian Railway Co. v. Paterson, supra. But even assuming the destructor to be a factory, the place where the accident occurred was in a part used for another purpose than manufacture, and accordingly the definition in section 93 of the Factory and Workshop Act of 1878 did not apply to this particular part of the works. Though this point had not been raised before the Sheriff, there was sufficient material before the Court to enable them to dispose of it. (2) There had been laxity on the part of the Sheriff-Substitute in the procedure in converting the original action into this arbitration. To satisfy the statutory requirements two elements must be present—it must be determined in the action that the employer was not liable under the action, and that he was liable under the Workmen's Compensation Act, and then the Court might proceed to assess compensation. Here it could not be determined in the action that the employer would have been liable under the Workmen's Compensation Act, and a proof was required to show that he was. (3) What the Sheriff-Substitute had declared to be a question only of fact might well be one of law, because it would involve the interpretation of the statute— Durham v. Brown Brothers & Co., Dec. 13, 1890, 1 F. 279, at p. 286.