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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kavanagh v. Caledonian Railway Co. [1903] ScotLR 40_812 (14 July 1903) URL: http://www.bailii.org/scot/cases/ScotCS/1903/40SLR0812.html Cite as: [1903] SLR 40_812, [1903] ScotLR 40_812 |
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Page: 812↓
[Sheriff Court at Glasgow.
A workman, engaged in corking a bottle in the cellar of an hotel, met with an accident, and claimed compensation under the Workmen's Compensation Act 1897. In a case stated for appeal it was set forth that the cellars were used as an adjunct to the hotel, that the process of bottling was there carried on by hand, but that for the purpose of bottle-washing there was a machine worked by water.
Held that the hotel cellar was not a “bottle-washing work” within the meaning of Sched. 6, Part II. No. 28, of the Factory and Workshop Act 1901, and was not a factory within the meaning of the Workmen's Compensation Act 1897.
This was a case stated for appeal by the Sheriff-Substitute at Glasgow ( Strachan), in an arbitration under the Workmen's Compensation Act 1897 between Bartholomew Kavanagh, bottler, 37 Eglinton Street, Glasgow (appellant), and the Caledonian Railway Company (respondents).
The case set forth the following facts as admitted or proved:—“1. That the appellant was for some time employed by the respondents as a storeman in the wine cellars in the basement of the Central Station Hotel, Glasgow, and was on 27th October 1902 engaged in one of said cellars in corking a bottle of whisky. 2. That there is a corking machine in the cellar in which he was corking the bottle, but as there was only one bottle to be dealt with the appellant put the cork in with his hand, and that when about to strike the cork with the palm of his hand in order to force it in, the neck of the bottle suddenly broke, with the result that his hand came violently in contact with the broken glass and was severely cut. 3. That the wine and spirit stores connected with the hotel are of a very extensive character, and consist of ten or eleven cellars or compartments entering by one door and connecting with each other by a series of passages. 4. That in one of these cellars there are corking and capsuling machines all worked by hand, and in another a wooden tank in which bottles are washed. 5. That there are two small machines for washing the interiors of the bottles used in connection with this tank. These machines are placed at opposite corners of the tank, and have each a small brush attached, and on a tap being turned and the water thereby let into the machines, the machines are put into operation and the brushes revolve and clean the interiors of the bottles which are placed over them. 6. That storage is the primary object and purpose of these cellars and the various processes carried on therein—bottling, bottle-washing, corking, labelling, and where necessary capsuling—are all ancillary to that object. 7. That all these processes are part of means by which respondents' business of hotel-keeping is carried on, and are none of them of a manufacturing character.”
On these facts the Sheriff-Substitute held in law “that the said appellant was not at the time his hand was injured employed in or near a factory in the sense of the Workmen's Compensatiou Act 1897, and was not therefore entitled to compensation under said Act.”
Page: 813↓
The questions of law for the opinion of the Court were—“1. Whether the said stores or cellars belonging to the respondents, or any part thereof, are (1) a factory within the meaning of the Factory and Workshop Acts 1878 to 1891, or (2) a bottle-washing work, and consequently a factory within the meaning of the Factory and Workshop Act 1901? 2. Whether the appellant was engaged at the time his hand was injured in working in or about a factory within the meaning of the Workmen's Compensation Act 1897?”
The Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37), enacts (sec. 7 (1))—“This Act shall apply only to employment by the undertaker 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 1901 enacts (sec. 149(1))—“The expression ‘nontextile 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.”
Schedule 6, Part II., includes among nontextile factories—“(28) Dry-cleaning, carpet beating, and bottle-washing works.”
Argued for the appellant—This was a “bottle-washing work,” and therefore a factory within the meaning of the Factory and Workshop Act 1901 (quoted supra). The reference in section 7 of the Workmen's Compensation Act to the “Factory and Workshop Acts 1878 to 1891” must now be held to involve a reference to the Act of 1901— Stevens v. General Steam Navigation Co. [1903], 1 K.B. 890. [Counsel for the respondents intimated that they admitted that the Act of 1901 applied]. If so, this was a bottle-washing work in which waterpower was used, and it was therefore a factory— Petrie v. Weir, June 19, 1900, 2 F. 1041, 37 S.L.R. 795; Law v. Graham [1901], 2 K.B. 327—[The Lord President referred to Caledonian Railway Co. v. Paterson, Nov. 17, 1898, 1 F. (J.C.) 24, 36 S.L.R. 60, in which it was held that the laundry attached to the Central Hotel was not a factory]. That case was wrongly decided, and is in conflict with Petrie v. Weir. In the present case water-power was used for the purpose of adapting the bottles for sale. That was enough to make it a factory. It was not necessary that the machinery should be actually in use— Stuart v. Nixon & Bruce (1901), A.C. 79.
Counsel for the respondents were not called upon.
The facts of the case are simple. The appellant was employed as a storeman by the Railway Company in their wine cellars in the basement of the Central Station Hotel at Glasgow, and he was injured on 27th October 1902 while engaged in corking a bottle of whisky in one of the cellars. For this purpose he was using his hands alone; there was no mechanical power employed in the process. I do not say that this is conclusive against the appellant's claim, because it may be, and probably is the case, that an accidental injury occurring in a particular place may fall within the scope of the Act although the use of mechanical power did not conduce to the accident. We have therefore to inquire what is the nature and character of the place in which he received the injury, and upon that matter two questions are submitted for our opinion. The first question is divided into two sub-heads—whether the said stores or cellars or any part of them are (1) a factory within the meaning of the Factory and Workshop Acts 1878–1891, or (2) a bottle-washing work, and consequently a factory within the meaning of the Factory and Workshop Act 1901. As regards the first of these two heads no argument was submitted, and it is unnecessary to say more than this, that under these Acts mere “stores” are not a factory. Again as regards the second head, the Factory Act 1901 extends the scope of the provisions of the earlier Acts to places not previously within the scheme of factory legislation, places in which manufacturing processes are carried on by the aid of steam and other mechanical power, from which danger is found to arise to the persons employed. Amongst the additional nontextile factories and workshops enumerated in Schedule 6, part 2, there are included (28) dry-cleaning, carpet beating, and bottle-washing works. Accordingly the question we have to consider is whether the place in which the appellant received the injury is in any reasonable sense a bottle-washing work. I cannot think that such a place as this was within the contemplation of the schedule. The Legislature did not include every place in which bottles are washed, but only places where either the sole or principal business carried on is bottle-washing. The place here in question does not seem to me to answer this description at all. It is a hotel, and in its cellars there are two small bottle-washing machines, supplied with water power from a tap, and the argument for the appellant was that the presence of these machines converts the whole premises into a bottle-washing work. But it appears to me that the requisites of a bottle-washing work as mentioned in the Schedule to the Act of 1901 are absent. The business carried on in the building is not
Page: 814↓
I therefore think that we should answer the second question as well as the first in the negative.
The Court answered both questions in the negative.
Counsel for the Appellant— Hamilton. Agents— Oliphant & Murray, W.S.
Counsel for the Respondents— Guthrie, K.C.— King. Agents— Hope, Todd, & Kirk, W.S.
