Scottish Court of Session Decisions

This was an appeal from the decision of the Sheriff-Substitute at Stirling in an arbitration under the Workmen's Compensation Acts 1897 and 1900 (60 and 61 Vict. c. 37, and 63 and 64 Vict. c. 22).

The facts which were found by the Sheriff-Substitute to be admitted or proved were as follows—“That the late John Meally, son of Mrs Bridget Philliban or Meally, the applicant, was in the employment of John M'Gowan, the respondent. That the respondent is a wood merchant and sawmiller. That for the purpose of his business he is in the custom of buying growing wood, cutting it down and removing it to his sawmill, where it is converted into flooring or planks or battens. That the respondent has a small farm of 30 acres which he cultivates. That he carries on his wood merchant and sawmiller business separately from his farm, and such business is away from the farm and not on the farm ground. That the deceased was one of several men whom the respondent habitually employed. He was engaged to cut down and fell trees, to cart them to the mill or to the railway station, to assist in the cultivation of the farm or in the mill when required, and to make himself generally useful. The work of cutting down and felling trees and carting them to the mill or railway station was directly connected with the wood merchant and sawmiller business, and was the work in which the deceased was mainly employed. He lived in the mill, and was available for farm work when required during four months of the year, but he did not do more than a fortnight's agricultural work during the whole year. He had been in the respondent's employment for about eleven years.

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His wages for the greater part of the year were 24s. a-week, he finding his own bed and board, and for the remainder of the year 14s. a-week, his bed and board being found for him. That the respondent had purchased a number of growing trees in a wood near Blanefield belonging to Mr John Coubrough, and the deceased and another workman had been for some days before 4th December 1901 engaged in cutting down these trees and removing them to the sawmill of the respondent. That on 4th December 1901 the deceased was killed by being crushed to death between a standing tree and the trunk of a tree which he was removing on a cart through the wood. That George Ellis, a gardener in the regular employment of Mr Coubrough, and who had charge of his woods, had previously marked the trees which were sold to the respondent.”

On these facts the Sheriff-Substitute found that the deceased was killed while in the employment of the respondent, that the deceased was a “workman in agriculture,” in respect that he was at the time of his accident engaged in forestry, and that the respondent, his employer, “habitually employed” such workmen in forestry in the sense of the Workmen's Compensation Act 1900, sec. 1; and consequently, that the respondent (the employer) was liable in compensation to the applicant under the Workmen's Compensation Act 1897.

Both the employer and the applicant appealed.

The questions of law stated for the opinion of the Court at the instance of the employer (respondent) were as follows—“(1) Is the employment of the respondent at which deceased met with the accident which caused his death an employment to which the Workmen's Compensation Act 1900 applies? and (2) Is the respondent an undertaker within the meaning of the Workmen's Compensation Acts 1897 and 1900, and as such liable in compensation to the applicant?”

In the view ultimately taken by the Court it was unnecessary to consider the questions stated at the instance of the applicant.

The Workmen's Compensation Act 1900 (63 and 64 Vict. c. 22), sec. 1, sub-sec. (1), enacts as follows:—“From and after the commencement of this Act the Workmen's Compensation Act 1897 shall apply to the employment of workmen in agriculture by any employer who habitually employs one or more workmen in such employment.” Sub-section (3) … “The expression ‘agriculture’ includes horticulture, forestry, and the use of land for any purpose of husbandry, inclusive of the keeping or breeding of live-stock, poultry, or bees, and the growth of fruit and vegetables.” Section 2—“This Act may be cited as the Workmen's Compensation Act 1900, and shall be read as one with the Workmen's Compensation Act 1897, and that Act and this Act may be cited together as the Workmen's Compensation Acts 1897 and 1900.”

Argued for the appellant—The definition of “agriculture” in section 1, sub-section (3), of the Act of 1900 (63 and 64 Vict. c. 22), included forestry. Forestry meant planting and cultivation of trees and management of growing timber. The appellant was not the owner of a forest or a cultivator of timber, but merely a buyer of wood. The fact that he had to cut down the wood was merely an accident of his contract. In any case he was not an “undertaker,” being neither the owner nor occupier of a forest.

Argued for the respondent—Cutting down wood was “forestry,” and the appellant was liable as an “undertaker” to pay compensation.

At advising—