Hoddinott v Newton Chambers & Co Ltd
[1901] A.C. 49(Judgment by: Lord Shand)
Between:Mary Jane Hoddinott (pauper) - Appellant
And: Newton Chambers & Co Ltd - Respondent
Judges:
Lord MacNaghten
Lord Morris
Lord ShandLord Davey
Lord Brampton
Lord Lindley
Subject References:
EMPLOYER AND WORKMAN
COMPENSATION
Height of Building
Construction or Repair
Scaffolding
Legislative References:
Workmen's Compensation Act, 1897 (c. 37) - s. 7, sub-s. 1
Judgment date: 10 December 1900
Judgment by:
Lord Shand
My Lords, the question for the decision of the House in this appeal is whether, when the deceased Benjamin Hoddinott lost his life, the respondents were engaged in the construction or repair of the building in which the accident occurred, or whether the work then being done was of the nature of an addition or alteration of a building, the construction of which had been completed about six months previously, the addition or alteration not being construction or repair as referred to in s. 7 of the Workmen's Compensation Act, 1897. That the question is one of difficulty sufficiently appears from the division of opinion in your Lordships' House. I have come to the conclusion that the judgment of the Court of Appeal is right and ought to be affirmed.
The statute in its 7th section draws a marked distinction between employment in engineering work and in the construction of a building, and in construing the statute the distinction is of importance to the decision of the case. In the opening part of that section the Act is declared to apply to "engineering work," and also to employment about any building which exceeds thirty feet in height, and is either "being constructed or repaired by means of a scaffolding or being demolished." In the same section engineering work is defined or described to mean "any work of construction or alteration or repair of a railroad, harbour, dock, canal, or sewer," or the other works there enumerated. Again, under the description of undertakers in the case of an engineering work, the term means "the persons undertaking the construction, alteration, or repair," and in the case of a building means the persons undertaking the construction, repair, or demolition.
Within the provisions of s. 7 of the statute, on the meaning of which the whole question in dispute turns, in three different passages engineering work is thus defined to include, not only construction or repair, but "addition," while in contrast with this, in the case of a building, the definition twice repeated includes construction or repair only. The work by way of "addition" is not included. It must, in my opinion, especially having in view the juxtaposition of the provisions, be taken to have been designedly intended to create a distinction between the two classes of work.
It is more than doubtful whether the question really in dispute, as it has been argued in the Court of Appeal and again in this House, was clearly before the learned judge of the county court. The claim which was made under the Employers' Liability Act of 1880, which failed, suddenly became before him a claim under the Workmen's Compensation Act of 1897, under which he came to act as arbitrator. It is recorded by him in his notes that the Court holds:
"The defendants were undertaking the construction, alteration, or repair."
If the case was one of alteration only of an existing construction, it does not follow that the circumstances would create the liability insisted on, because that word is not in the statute applied to a building. The finding seems to shew that the learned arbitrator could not hold the case as one in which there was "construction," which inferred liability under the statute.
As to the question of repair, I lay it out of consideration, for, whatever was being done at the building, there was no repair going on. None of the completed work had gone wrong or given way so as to require any repair, or setting right in itself; and what was done was, therefore, no act of repairing, but something entirely new. The question remains, and it seems to me the only question in the case, Was the building in the course of construction?
There was little, if any, evidence given as to the facts bearing on that question, apparently because the appellant's case was really presented as one, under the Employers' Liability Act, of fault or negligence on the employer's part from alleged defective scaffolding. The evidence taken before the coroner seems to have been put in, and there the witness Nicholson said that the alteration to the building was to stay the building, "so that the wind may not vibrate it." Accordingly the facts beyond this statement must be taken from the admissions made before the Court of Appeal. These admissions are really part of the appellants' case, for they are necessary to raise the question of liability as well as to give the grounds on which the Court of Appeal proceeded in holding that the statute did not apply; and Mr. Ruegg, in his able argument, candidly admitted the facts on which the Court of Appeal in their judgment proceeded. These facts are -
- (1.)
- that the building had been completed and in use for somewhere about six months before the accident occurred;
- (2.)
- that the work then being carried on was not contemplated when the building was constructed;
- (3.)
- that the iron stays were being put in to strengthen or stay the building and prevent vibration; and
- (4.)
- that the deceased who had not been employed in the construction of the building, was employed in putting in the stays.
In this state of the facts, I am of opinion, with the Court of Appeal, that the case is not within the provisions of the 7th section of the statute, as the building was not "being constructed by means of a scaffolding." It was a building which had been so constructed months before, and had been in use as a completed building, and on which an improvement, or an addition only, was being made. What is the distinction which the statute has drawn between engineering work and buildings? As I have said, the former includes construction, alteration, or repair; the latter, only construction and repair; and, repair being out of the case, "construction," which seems to me equivalent in meaning to "erection," only remains. If the word erection had been used, the appellant's argument would have been the same, that the placing of stays was erection in part, as it is now said to be construction of a part of the building.
This was a constructed building, long in use, on which it was thought desirable to make an improvement, or addition, to make it more secure or more comfortable. Is it to be said that every such improvement or addition, where scaffolding is in use in the building, is "construction" of a building within the meaning of the statute? I cannot give to the term "construction" so wide, I might say so loose, a signification. The work might be the putting in of one or more windows in order to light the building better, or it might be the making of commodious presses, internal presses or closets, or the making of closet or lavatory arrangements by internal work. It appears to me that such additions, alterations, or improvements in a building cannot be regarded as "construction," and I say the same in regard to stays put in in order to prevent vibration.
The erection of a new or additional storey to a building might be represented as construction, because in that case a new building, including an outside structural wall, is really made or constructed; but that entirely differs from such internal operations as occurred in the present case, and the character of the addition, improvement, or alteration, in my opinion, makes all the difference.
The argument of the appellant disregards the distinction which the statute has drawn between engineering work and work on a building. It has been observed that the word "alteration" may have been omitted designedly, because it is impossible to conceive any alteration in a building which does not involve construction. The observation would, it appears to me, apply with the same force to a "railroad, harbour, dock, canal, or sewer" in which engineering work may be employed. The use of the term construction was not deemed sufficient to include in that case work of the nature of an addition, and accordingly that term was added, and I am unable to construe the term construction in a wider sense when it is used as applied to a building, so as to include everything of the nature of an improvement or addition, than the proper sense in which it is used as applicable to engineering works in the same sentence.
It was argued for the appellant that if a case of repair, and it might be of comparatively small repair, is sufficient to bring the building within the statute, why should not an improvement or addition also have the same effect? The answer to that observation is that the statute in its terms has drawn and enacted a distinction between the two cases. For my part I agree in thinking the distinction ought to be done away with, and cases of alteration should be put on the same footing as those of repair; but this must be done by amending legislation, and not by straining the language used so as to include cases which it may seem desirable to include, though the terms used will not, according to their ordinary and proper interpretation, do so.
I agree in thinking that the staging from which the deceased fell was a scaffold or scaffolding within the ordinary meaning of these words, and that it was so seems to be simply a question of fact. I further agree with my noble and learned friend Lord Macnaghten that, as a matter of law, the erection and use of a scaffold or scaffolding "capable of being used for the construction or repair of the building as a whole" is not required in order to bring the building under the provisions of the 7th section of the statute.