Scottish Court of Session Decisions

This was a case stated on appeal by the Sheriff-Substitute of Lanarkshire at Glasgow ( Fyfe) in an arbitration under the Workmen's Compensation Act 1897 between Hugh Campbell, spirit salesman, 240 Main Street, South Side, Glasgow, applicant and appellant, and John M'Nee, spirit merchant, Castle Chambers, 65 Renfield Street, Glasgow, respondent.

The case stated as follows. “The following were the averments in the appellant's condescendence:—… (2) On or about the date after mentioned the applicant was employed in one of respondent's shops at 216 Naburn Street, South Side, Glasgow. In connection with the business of said shop, but separate from it, there is a store at 126 Kidston Street, South Side, Glasgow, which store is used for the purpose of bottling beer and washing beer bottles, and is a factory within the meaning of the Workmen's Compensation Act 1897. The work of said store formed part of applicant's duties. (3) On or about 13th March 1903 the applicant was engaged in said store washing bottles… . While the applicant was so engaged, a piece of glass in the tub entered the thumb of his left hand between the nail and the finger, in consequence of which he has been incapacitated for work, and is at present under medical treatment… .”

On 5th May 1903 the Sheriff-Substitute held that the appellant bad not set forth facts and circumstances relevant to infer that he was employed in or about a factory in the sense of the Workmen's Compensation Act 1897, and accordingly dismissed the case as irrelevant.

The question of law for the opinion of the Court was—“Whether the application was properly dismissed as irrelevant.”

The Factory and Workshop Act 1901 (1 Edward VII., cap. 22) enacts (sec. 149) … “The expression ‘non-textile factories’ means …( b) any premises or places named in Part II. of the Sixth Schedule to this Act wherein or within the close or curtilage or precincts of which steam, water, or other mechanical power is used in aid of the manufacturing process carried on there; and (c) any premises wherein or within the close or curtilage or precincts of which any manual labour is exercised by way of trade or for purposes of gain in or incidental to any of the following purposes namely … (iii) the adapting for sale of any article, and wherein or within the close or curtilage or precincts of which steam, water, or other mechanical power is used in aid of the manufacturing process carried on there… . The expression ‘workshop’ means (a) any premises or places named in Part II. of the Sixth Schedule to this Act, which are not a factory.” The Sixth Schedule of the Act provides as follows:—“List of Factories and Workshops … Part II., Non-textile Factories and Workshops … (28) … bottle washing works.”

Argued for the appellant—No severe test should be applied to the averments of an applicant for compensation under the Act. The appellant's averment that he was employed in a factory was sufficient to entitle him to inquiry, and he should not be denied an opportunity of proving that the store in which he was employed was a “factory” or a “workshop” within the meaning of the Factory and Workshop Act 1901 (1 Edward VII., cap. 22), sec. 149, Schedule 6, II., (28); and the Workmen's Compensation Act 1897, section 7.

Counsel for the respondent was not called upon.