Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), section 13, enacts—“In this Act, unless the context otherwise requires … ‘Workman’ … means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work, or otherwise, and whether the contract is expressed or implied, is oral or in writing.…”

In an arbitration under the Workmen's Compensation Act 1906 between Thomas Chisholm, carter, Inverness, who had received injuries through an accident, and claimed compensation, and James Walker & Company, Inverness, the Sheriff-Substitute at Inverness ( Grant) refused compensation, and at the request of the claimant stated a case, in which the following facts were found proved:—“The appellant is the owner of a horse and he along with others was engaged by the respondents to bring his horse and drag logs of timber for them from the side of a ship which the defenders were discharging at Inverness harbour to various piles near the pier where those logs were stored according to their sizes. The hours during which the unloading of the ship was carried on were from 7 to 12 and 1 to 6. The pursuer only dragged the logs from the ship's side while the unloading was proceeding. He received 8s. a-day for himself and his horse. He might have got the 8s. a-day by sending a servant, if he had one, to lead his horse. He was under no obligation to come on any particular day. He could be told not to come until he was wanted, but if he came and was wanted he got a day's work for himself and his horse. He also habitually carted for coal merchants and for anybody else who would give him a job. He provided his own horse and his duty was to lead that horse when it dragged the logs as he might be directed by the defenders' representatives. The pay was more for the work of the horse than that of the man. If he had been a servant working the respondents’ horse his own wage would have been less than half the 8s. a day that he received. After the accident the defenders put a servant of their own to drive the pursuer's horse until the work was finished. The pursuer afterwards engaged a man to work his horse, collected the accounts for work done by him and paid him a weekly wage of £1 per week. It was also proved that prior to the accident the pursuer was somewhat lame, and that in consequence he would not have been employed by the defenders as an ordinary workman to unload the ship, and that he was engaged merely as the owner of a horse. It was further proved that though the appellant had been working for some days for the respondents before receiving his injuries he was under no obligation to do so. In his own word he ‘could have left at any time for a better job.’ He could also be dismissed at any time. There was no evidence that the pursuer previous to the accident had ever employed a servant to work his horse.”

On these facts the Sheriff-Substitute held that Chisholm was employed as an independent contractor and not as a “workman” in the sense of the Act.

The question of law for the opinion of the Court was—“Was the appellant a ‘workman’ in the sense of section 13 of the Workmen's Compensation Act 1906, and was he under a contract of service with the respondents or was he an independent contractor.”

Argued for the appellant—The appellant was a workman in the sense of the Act, because the contract under which he was working was a contract of service.

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The mere fact that he had a horse which he used in doing his work, and that the payment made to him included the hire of the horse as well as his own remuneration, did not take the contract out of the category of service. Paterson v. Lockhart, July 13, 1905, 7 F. 954, 42 S.L.R. 755.

Counsel for the respondents were not called on.