Scottish Court of Session Decisions

The Unemployed Workmen Act 1905 (5 Edw. VII, c. 18), sec. 1, enacts—“ Organisation for London—(1) For the purposes of this Act there shall be established by order of the Local Government Board under this Act a distress committee of the council of every metropolitan borough in London, … and a central body for the whole of the administrative county of London. … (3) If the distress committee are satisfied that any such applicant is honestly desirous of obtaining work, but is temporarily unable to do so from exceptional causes over which he has no control,… they may endeavour to obtain work for the applicant, … but the distress committee shall have no power to provide or contribute towards the provision of work for any unemployed person. (5) The central body may … in the case of an unemployed person referred to them by a distress committee, assist that person by … providing or contributing towards the provision of temporary work in such manner as they think best calculated to put him in a position to obtain regular work or other means of supporting himself.”

Section 2 (as applied to Scotland by section 5 of the Act) enacts—“ Organisation Outside London—(1) There shall be established by order of the Local Government Board [for Scotland] for each [royal, parliamentary, or police burgh] with a population … of not less than fifty thousand … a distress committee of the council for the purposes of this Act, with a similar constitution to that of a distress committee in London, and the distress committee so established shall, as regards their [burgh], have the same duties and powers, so far as applicable, as are given by this Act to the distress committees and central body in London.”

Section 4 (as applied to Scotland by section 5) enacts—“ Local Government Board Orders and Regulations.… (3) The Local Government Board for Scotland may make regula-. tions for carrying into effect this Act, and may by those regulations … provide—( a) for regulating, subject to the provisions of this Act, the conditions under which any application may be entertained by a distress committee under this Act.…”

[For the regulations issued by the Local Government Board for Scotland for carrying into effect the provisions of the Act, see Statutory Rules and Orders for 1905, p. 1401, et seq.]

The Workmen's Compensation Act 1906 (6 Edw. VII, c. 58) enacts—First Schedule, sec. (3)—“In fixing the amount of the weekly payment, regard shall be had to any payment, allowance, or benefit which the workman may receive from the employer during the period of his incapacity, and in the case of partial incapacity the weekly payment shall in no case exceed the difference between the amount of the average weekly earnings of the workman before the accident and the average weekly amount which he is earning, or is able to earn, in some suitable employment or business after the accident, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper.”

John Gilroy, 4A St Andrew's Wynd, Leith, claimed compensation under the Workmen's Compensation Act 1906 from the Distress Committee of the Burgh of

Page: 326↓

Leith in respect of injuries sustained by him while engaged on work provided by them.

The Sheriff-Substitute ( Guy) having assoilzied the defenders, a case for appeal was stated.

The case stated—“This is an arbitration in which John Gilroy, the appellant, claimed compensation in terms of the Workmen's Compensation Act 1906 to the amount of one-half his weekly wage of seventeen shillings in respect of an injury sustained to his right eye while engaged in the employment of the respondents at Seafield, at breaking stones, on Thursday, the 2nd day of April 1908, and he therefore craved the Court to grant a decree against the respondents, ordaining them, as the Distress Committee 1907–1908, representing the Corporation of the Burgh of Leith ana community thereof, to pay to him the sum of eight shillings and sixpence weekly commencing on the 9th day of April 1908 for the week preceding, and so forth weekly thereafter, with interest as craved.

“The following facts were admitted by the parties, viz.—(1) That the respondents, under the powers conferred upon them by the Unemployed Workmen Act 1905, provided temporary work for the appellant, being an unemployed person within the meaning of that Act, at stonebreaking, between 24th January and 2nd April 1908. (2) That the discharge of the respondents' duties is regulated (1st) by the Unemployed Workmen Act 1905; and (2nd) by Statutory Rules, Orders, and Regulations issued by the Local Government Board under the power conferred on them by the said Act, dated respectively 17th October and 14th November 1905. (3) That on 2nd April 1908 the appellant received an injury to his right eye by a piece of stone flying off his hammer and striking his eye while he was engaged in breaking stones. (4) That the said injury totally incapacitated the appellant for work until 12th June 1908, when his incapacity for work ceased. (5) That the appellant's average weekly earnings from the said work were 10s. 9d. (6) That during his incapacity he received outdoor relief from the Parish Council of Leith at the rate of 10s. per week, and (7) That the said accident arose out of and in course of the said work.

Having in view the provisions of section 1 and sub-sections 3 and 5 of the Unemployed Workmen Act 1905, and the fact that any sums paid to workmen in respect of the provision to them of temporary work are necessarily paid out of voluntary contributions and not out of the rate provided by the Act—

I found in law that the appellant was not a workman within the meaning of the Workmen's Compensation Act 1906, as defined by sub-section 13 thereof, in respect that he had not entered into or worked under a contract of service or apprenticeship with the respondents.

I further found in law that, assuming I was wrong in the above construction of the statutes, the amount received by the appellant subsequent to his accident by way of relief from the poor law authorities did not fall to be computed in discharge of any compensation to which he might be entitled under the Workmen's Compensation Act 1906. Therefore I assoilzied the respondents,”

The questions of law were—“(1) Whether the appellant was a workman in the employment of the respondents within the meaning of the Workmen's Compensation Act 1906? (2) Whether the amount received by the appellant subsequent to his accident, by way of relief from the poor law authorities, falls to be computed in discharge of compensation under the Workmen's Compensation Act 1906, assuming such compensation to be payable?”

Argued for appellant—(1) The respondents were a public authority—Unemployed Workmen's Act 1905 (5 Edward VII, cap. 18), sec. 2 (1), and the exercise of its powers and duties by such an authority, was for the purposes of the Workmen's Compensation Act, to be regarded as the “trade or business” of such authority—Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 13. The constitution of the respondents was defined by the Burgh Distress Committees (Unemployed Workmen) (Scotland) Order 1905—[see Statutory Rules and Orders for 1905, pp. 1367 and 1399]. Article 5 of the said regulations prescribed the conditions on which the applicants were to be “employed,” and the conditions satisfied all the ordinary criteria of “employment”— e.g., selection, payment, supervision, and dismissal. These were the recognised tests of employment — Cairns v. Clyde Trustees, June 17, 1898, 25 R. 1021, per Lord Trayner at p. 1024, 25 S.L.R. 808. The source of the funds from which compensation was payable was immaterial— Virtue v. Alloa Police Commissioners, December 12, 1873, 1 R. 285, 11 S.L.R. 140. Applicants for relief were in a different position from paupers and prisoners, who were compelled to work, and no analogy could be drawn between their case and that of the appellant, who had voluntarily applied for employment. It had been held in England that persons in the position of the respondents were liable to pay compensation under the Workmen's Compensation Act— Porton v. The Central Unemployed Body of London, 1908, 25 T.L.R. 102. (2) Esto that compensation was due, the relief received from the poor law authorities could not be taken into account, for neither the body paying nor the fund out of which payment was made was the same.

Argued for respondents—It would not be readily presumed that the provision of temporary work was to create a contract of ordinary employment. There was no contract of service or apprenticeship in the sense of section 13 of the Workmen's Compensation Act 1906. The regulations ( supra) carefully avoided using the term “employment,” and spoke of the provision of “temporary work.” The usual incidents of employment were absent, for the service was temporary, and could be left at any

Page: 327↓

time; no proper wages were paid, and the committee had control over the sums paid even after payment. The relationship was not contractual but statutory, and the relief given was not payment for work, but charity in return for work done. There were no data for calculating compensation, for there were no “earnings” in the sense of the Act, for ex hypothesi the appellant was not earning anything. The only fund out of which the respondents could provide relief were moneys subscribed by the charitable. The case of Porton ( supra) relied on by the appellant was not binding, and in any event was wrongly decided. No compensation was payable by poor law or prison authorities— Tozeland v. West Ham, Union, [1906] 1 KB 538, rev. [1907] 1 KB 920, per Farwell, L. J., at p. 932. Reference was also made to Dunbar v. Ardee Guardians, [1895] 2 I.R. 76. (2) Esto that compensation was due, the Sheriff-Substitute should have had regard to the payments which the appellant received from the poor law authorities—Workmen's Compensation Act 1906, Schedule I, sec. 3; Bryson v. Dunn & Stephen, Limited, December 14, 1905, 8 F. 226, per Lord President at p. 230, 43 S.L.R. 236. If that were not done, the appellant would get more as compensation than he was getting before the accident.