Scottish Court of Session Decisions

This was a case stated on appeal from a determination of the Sheriff-Substitute ( D. J. Mackenzie) at Kilmarnock, in an arbitration under the Workmen's Compensation Act 1897 between John Ferguson, Grange Knowe, Irvine Road, Kilmarnock, applicant and respondent, and Andrew Barclay, Sons, & Company, Limited, Caledonia Works, Kilmarnock, appellants, in which the applicant claimed compensation in respect of injuries sustained by him on 11th December 1901 in the course of his employment by the appellants.

The following facts were stated as admitted or proved:—“1. That the applicant and respondent was on 11th December 1901 a workman in the employment of the appellants, who are engineers at Caledonia Works, Kilmarnock, which is a factory within the meaning of section 7 of the Workmen's Compensation Act 1897. 2. That on said date the applicant and respondent was employed by the appellants as one of a squad of men working at a locomotive engine, which was the property of the appellants, in a shed belonging to the Glasgow, Barrhead, and Kilmarnock Railway Company, and used by the said Railway Company, of which shed the appellants were tenants in terms of an agreement. 3. That the shed in question is situated about half-a-mile from the appellants' works, with which it has no direct communication by rail, and had been used by them for similar purposes for several weeks at a time on many occasions before Martinmas 1901. 4. That no steam, water, or other mechanical power was used in said shed. 5. That while in the course of his employment on said 11th December 1901 the applicant and respondent was injured by an accidental explosion of naphtha which occurred when he lifted a tin of that substance in mistake for one of oil. 6. That the injuries to the applicant and respondent were such that he has been since and still is unable to work.”

The Sheriff-Substitute's finding was as follows:—“On these facts, while of opinion that the shed in question was not by itself a factory in the sense of sec. 7, sub-secs. 1 and 2, of the Workmen's Compensation Act, I found that it formed part of the factory in which the applicants carry on their business, and that they were liable in compensation to the applicant and respondent at the rate of 14s. 6d. per week from the 1st

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day of January 1902, being 50 per cent. of his average weekly wage for the previous twelve months, in terms of the Workmen's Compensation Act 1897.”

The question of law for the opinion of the Court was—“Whether the applicant when injured was employed ‘on or in or about’ a factory within the meaning of section 7, sub-sections 1 and 2, of the said Act?”

The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), sec. 7, enacts—“(1) This Act shall apply only to employment by the undertakers as hereinafter defined on or in or about a … factory … (2) In this Act … ‘factory’ has the same meaning as in the Factory and Workshop Acts 1878 to 1891.”

The Factory and Workshop Act 1878 (41 Vict. cap. 16), sec. 93, enacts, inter alia—“The expression ‘non-textile factory’ in this Act means … (3) Also any premises 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.”

Argued for the appellants—The shed in question was not a factory; no mechanical power was used there. Though the appellants' works were a factory, it did not follow that the shed would be held to be within the statute, even if it had been in the immediate vicinity of the factory and had been in the sole occupancy of the appellants in connection with the business of the factory— Mooney v. Edinburgh and District Tramways Company, December 20, 1901, 4 F. 390, Lord Moncreiff, 394, 39 S.L.R. 260. The words “about a factory” could not cover anything which happened half-a-mile from the factory— Chambers v. Whitehaven Harbour Commissioners, [1899], 2 Q.B. 132.

Argued for the respondent—The work done in the shed was part of the business of the appellants' factory, and the men sent there were not sent out of the factory—they remained in the appellants' premises— Barclay, Curie, & Company v. M'Kinnon, February 1, 1901, 3 F. 436, 38 S.L.R. 321. It was immaterial that the accident happened in a part of the premises where no mechanical power was used— Petrie v. Weir, June 19, 1900, 2 F. 1041, 37 S.L.R. 795. On the authority of the case of Mooney v. Edinburgh and District Tramways Company, cit. sup., the respondent was entitled to prevail.