Scottish Court of Session Decisions

The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), sec. 7, enacts—“(2) In this Act” … ‘Undertakers’ in the case of a factory, quarry, or laundry means the occupier thereof within the meaning of the Factory and Workshops Acts 1878 to 1895. ‘Workman’ includes every person who is engaged in an employment to which this Act applies, whether by way of manual labour or otherwise, and whether his agreement is one of service or apprenticeship or otherwise, and is expressed or implied, is oral or in writing.…”

In an arbitration under the Workmen's Compensation Act 1897 in the Sheriff Court at Lanark between James Paterson, quarryman, residing at Roadmeetings, Carluke, claimant, and Sir Simon Macdonald Lockhart, Bart., Lee Castle, Lanarkshire, respondent, the claimant craved decree for 15s. a-week in respect of permanent disablement due to an accident which occurred to him on 9th May 1904 while working at a quarry on the respondent's estate.

The Sheriff-Substitute ( Scott-Moncrieff) decided in favour of the respondent, finding in law (1) that the place in which the accident occurred was a quarry within the meaning of the Quarries Act 1894 and the Workmen's Compensation Act; but (2) that at the time of the accident the claimant was a contractor and not a servant or workman of the respondent in the sense of the Act.

A case for appeal was stated. The facts found proved were as follows:—That the appellant has done work for the respondent on various occasions in both quarrying and draining operations, and it was admitted that he, at so much the chain or rood, did the draining work by contract, employing at times other men, but denied that he ever contracted for the quarrying work. That in February 1904 he was engaged by the respondent's factor to quarry a certain number of stone blocks for wire fences, and thereafter stones for farm buildings, in such quantities as the said factor should direct; that for this work he was to be paid at the rate of 5s. per day, and that the appellant was not paid daily. That, if he desired it, he might employ assistants to he paid for through him at that rate, and that he so employed his son on the first eight days at 5s. per day, appellant's name alone appearing in the estate books; that for this work he got a pick, shovel, barrow, and four boring irons from the estate, otherwise he provided his own tools and materials, but charged and was paid for the sharpening of the tools, and for blasting powder. That the respondent's forester visited the quarry and kept a note of the days on which the appellant worked. That the appellant was entitled to exercise his own judgment as to where the excavation in the quarry was to be made. That the usual way quarrying is contracted for is sb much per stone, or so much per cubic yard. That the place at which appellant worked was on the respondent's estate, and that the quarrying was

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done to meet estate requirements. That said place was of a crescent shape, the deepest part of the face or bank from which stone could be taken being over 20 feet in height, but that at either side of the deepest part the height was less, and at the spot where the accident to the appellant occurred it was only about 14 feet. That previous to working in the above place he was instructed to take stones from other places, the stones from which, on examination by the respondent, his factor, and forester, were condemned, and he was sent to the place before stated (where the accident happened). That he started work about the end of March 1904; that at the time of the accident and for four weeks before he was working alone. That the accident, which was caused by an explosion, severely injured the appellant. That after the injury the respondent's factor called at the appellant's house, and requested the appellant's two sons to quarry on the same terms as to time and payment as the appellant, and that on the second day they were stopped, as the stone was not satisfactory to the respondent.”

The question of law was—“Was the appellant at the time of the accident a servant or workman of the respondent in the sense of the Workmen's Compensation Act?”

Argued for the appellant—The appellant was a worker in the sense of the Act, not a contractor. He was paid wages as a worker by his employer. The definition of workman given in the Act was a wide one. The criteria in determining the question were (1) that he should work; (2) that he should be subject to the orders of his employer; and (3) that he should be paid wages at a fixed rate. The claimant fulfilled these three conditions. He never got more nor less than 5s. a-day. In these circumstances he was a workman in the sense of the Act— M'Cready v. Dunlop & Company, June 16, 1900, 2 F. 1027, 37 S.L.R. 779; Evans v. Penwyllt Dinas Silica Brick Company, November 13, 1901, 18 T.L.R. 58.

Argued for the respondent—The Act did not apply to sub contractors, and the Sheriff-Substitute had found that the claimant was a sub-contractor. The claimant was not bound to give personal service. His contract was to do the whole job, and he could not have been stopped and sent to another piece of work till his contract was finished. Moreover, he was the person in the occupation of the quarry, and was therefore an undertaker and not a “workman”— M'Gregor v. Dansken, February 3, 1899, 1 F. 536, 36 S.L.R. 393; Hayden v. Dick, November 26, 1902, 5 F. 150, 40 S.L.R. 95; Vamplew v. Parkgate Iron and Steel Company, Limited, [1903] 1 KB 851.