Hoddinott v Newton Chambers & Co Ltd
[1901] A.C. 49(Decision by: Lord MacNaghten (including background))
Between:Mary Jane Hoddinott (pauper) - Appellant
And: Newton Chambers & Co Ltd - Respondent
Judges:
Lord MacNaghtenLord Morris
Lord Shand
Lord 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
Decision by:
Lord MacNaghten (including background)
The Workmen's Compensation Act, 1897 (s. 7, sub-s. 1), applies only (inter alia) to employment on, in, or about any building which exceeds thirty feet in height "and is being constructed or repaired by means of a scaffolding."
These words do not confine the employment to the construction or repair of the building as a whole. "Construction" here includes a case where the building has been constructed and believed to be complete, but having been afterwards thought to be faulty and unstable is being strengthened by the addition of stays or supports.
"Scaffolding" may be external or internal and includes an internal staging arranged with planks and trestles and without poles.
The decision of the Court of Appeal reversed and the award of the county court judge restored ( [1899] 1 Q.B. 1018 ) by Lords Macnaghten, Morris, Davey, and Brampton, Lords Shand and Lindley dissenting.
The facts of this case are set forth in detail in the judgments of Lords Brampton and Lindley. They are summarised in the following statement, which is taken from the judgment of Lord Macnaghten.
The claim in this case as presented to the House is a claim under the Workmen's Compensation Act, 1897, for compensation in respect of an accident to a workman. It seems that about six months before the date of the accident the London General Omnibus Company took over a building which had been erected for them. They have used it as stables ever since. It may be assumed that the building was erected in accordance with the specifications prepared on behalf of the company, and that at the time when it was taken over nobody contemplated that anything further in the way of construction would be required.
However, when the stables came to be used, it was found that there was some vibration, and the company determined to have the building stiffened. Accordingly, they engaged the respondents, who are ironwork contractors, to put in some heavy iron stays, weighing about one hundredweight apiece, between the girders and the pillars which supported the building. The appellant's husband was employed by the respondents on the work. In the course of his employment he met with an accident. He slipped and fell off a temporary staging while helping another workman to lift one of these iron stays. The stay fell upon him and he was crushed to death. The county court judge dismissed an action which was brought by his widow against the respondents claiming damages for negligence, and then proceeded to assess compensation under the provisions of the Act of 1897. The Court of Appeal (A. L. Smith, Collins, and Romer L.JJ.) set aside his order, being of opinion that the Act did not apply to the employment in which the deceased was engaged. [F1]
The Workmen's Compensation Act is of limited application. Sect. 7, so far as material to the present question, is as follows:-
- "7(1.)
- This Act shall apply only .... to employment by the undertakers as hereinafter defined on, in, or about any building which exceeds thirty feet in height, and is either being constructed or repaired by means of a scaffolding or being demolished.
- "(2.)
- In this Act - ....
- "'Undertakers' .... in the case of a building means the persons undertaking the construction, repair, or demolition."
- "'Workman' includes every person who is engaged in an employment to which this Act applies ...."
Nov. 19. Ruegg, Q.C., and Moyses (Holland Biggs with them), for the appellant. The evidence shews that the building exceeded thirty feet in height and was being constructed or repaired by means of a scaffolding within s. 7, sub-s. 1. The Court of Appeal, without deciding the question of the scaffolding, held by a very narrow construction that the work in progress was neither construction nor repair. In one sense the building was completed; but it was found to need strengthening. The iron stays were added for stability, not ornament: without them the building was not safe. They formed part of the building and their addition was construction.
The building resembled the Act itself; when brought into use it was found to be faulty, unsound and dangerous. There is no evidence that the architect of the building was rash, ignorant, or incapable, but without requiring to be pulled down and rebuilt it needed structural alteration. The Act seems to need re-making. For this work the respondents were the contractors; they were not sub-contractors. They are therefore liable: see Mason v. A. R. Dean, Limited, [F2] where it was held that where there are separate contracts for different parts of the work, each contractor is an "undertaker" within the meaning of the statute. The deceased was doing his work by means of a "scaffolding."
There is no definition of the word in the Act, but the language of s. 7 seems to have been borrowed from the schedule to the Notice of Accidents Act, 1894 (c. 28), and the words are also found in the Factory Act, 1895, s. 23, sub-s. 2 (a). The decision in Wood v. Walsh & Sons, [F3] where a board, one end of which was tied to a rung of a ladder and the other rested on a sill, was held not to be a "scaffolding," even if it were correct, does not apply here, where the structure was more elaborate, the boards resting on ledgers and being supported in the middle by trestles. In Ferguson v. Green [F4] the Court of Appeal held that whether the arrangement was a "scaffolding" or not was a question of fact in each case, from which no appeal lay: see Sched. II., clause 4. But the meaning of an Act of Parliament is a matter either of pure law, or of mixed law and fact. The result of this view is that the Court of Appeal in Maude v. Brook [F5] have held that the structure was a scaffolding; and in a similar case, Ferguson v. Green, that it was not. An Act of such a construction tends to bring the law into disrepute.
Bray, Q.C., and Spencer Bower, for the respondents. The words of the Act must be taken in their collocation. The state of things contemplated by the Legislature is that of a building of an important character which requires for safety the erection of what builders would recognise as a "scaffolding." Thus Collins L.J. has laid this down as the standard of danger. Though the words "dangerous employment" are not in the Act, that was the point of view in fixing a minimum height of thirty feet. In any case this was not a scaffolding, but a mere temporary makeshift; what the Act meant was a firm structure. Further, the building was not thirty feet high - the parapet being only twenty-eight feet. What was done was not "construction," as the building was already complete. It was not "repair," for nothing was defective or worn out. The work might best be described as an improvement. It is an alteration, and in the section there is a careful avoidance of the words "alteration" or "addition." The words must be read strictly because among the definitions in s. 7, sub-s. 2, the word "alteration" is found twice but only in connection with "engineering work."
Ruegg, Q.C., in reply.
The House took time for consideration.
Dec. 10. Lord MacNaghten (after stating the facts given above, and the parts of the Act relevant to the question). My Lords, the learned judges of the Court of Appeal agreed with the county court judge in holding that the building exceeded thirty feet in height. They were not agreed on the question whether the staging erected for the purpose of the work in hand was a "scaffolding" within the meaning of the Act. A. L. Smith L.J., without expressing any opinion of his own, thought there was evidence sufficient to justify the finding of the county court judge to that effect.
Collins L.J. took a different view. Romer L.J. did not attempt to determine the point. All the learned judges, however, concurred in holding that the building in which the accident happened was not at the time being constructed or being repaired, and that the respondents were not undertakers within the meaning of the Act. The ground of their decision is stated very clearly by A. L. Smith L.J.:
"Were the iron-founders,"
he asks,
"who put in these stays constructing the building? That cannot be,"
says his Lordship,
"for it had already been constructed, and what was then done was only an addition to that which it had originally been contemplated would be wanted. How can it be said that the deceased was employed in a building which was being constructed? The construction was at an end, but some strengthening was afterwards needed to be done."
Collins L.J., as it seems to me, went rather further, following out the views expressed by the other members of the Court to their logical conclusion. He thought that the only work contemplated by the Act in the case of a building besides demolition was construction or repair of the building "as a whole."
The argument addressed to your Lordships by the learned counsel for the respondents followed the same lines. The building, they said, when it was handed over, was complete according to the original design. Construction, therefore, necessarily was at an end. What was done afterwards, whether it was the result of caprice on the part of the company's engineer, as they suggested, or a bonafide attempt to make the building more suitable for the purpose for which it was intended, was only an alteration, or at the most an addition, and perhaps an improvement. It was not either construction or repair.
My Lords, I do not think it advances the argument to call the work an alteration, or an addition, or an improvement. I should suppose that any one of those terms might be applied to it properly enough. The question, as it seems to me, is this: Was the work - the thing that was actually being done - a work of construction or a work of repair, or something which was neither the one nor the other, neither construction nor repair? It seems a strong thing to say that when a building is once completed according to the original design you cannot have anything further in the way of construction unless the work be of such a character as to make the building practically a new building. That, however, was the argument. But the Act, it will be observed, uses the word "construction," not the word "erection." It speaks of a building "being constructed," not of a building "being erected." And it couples "construction" with "repair." Now repair, as the word is commonly understood, is repair whether much is done or little. Repair for the most part is occasional and partial. A man does not usually wait to repair his house until it is altogether ruinous and on the point of falling to pieces. Why may not construction be partial just as repair is partial?
Many cases were put in argument, and many others may be suggested. Is a man who adds a storey or a new room to a house constructing a building? Is a man constructing a building if he strips off a coating of stucco and faces his house with red brick or cut stone? In one sense he is; in another sense he is not. It depends upon what is meant by "constructing," and whether reference is made to the building as it was, or to the building as it will be when the proposed alteration is complete. My Lords, these and such-like questions may be very interesting puzzles, but I do not think they help one much.
The question, after all, must be what is construction and what is repair in this Act of Parliament, where construction and repair are associated together. I do not think that "construction" can be limited to the original construction. That would be in effect substituting "erection" for "construction." Nor do I think that "construction" and "repair" can be limited to the construction and repair of a building "as a whole." Neither the word "original," which the learned counsel for the respondents so continually interpolated, nor the words "as a whole," which Collins L.J. would introduce, are to be found in the Act. They are glosses, and I think misleading. It seems to me that whenever new material is put into a building so that it becomes an integral part of the structure, you have something in the nature of construction; and that a building which is being so treated is being constructed within the meaning of the Act. You are putting together the old materials and the new.
Now, if this be "construction," I do not think it can matter in the least whether the work is taken in hand immediately after the erection of the building, or not commenced until months or even years later. Nor do I think it is of importance to inquire why the work has been undertaken. It cannot, as it seems to me, make any difference whether the person who gave the order for it was moved by a reasonable apprehension of danger or prompted by some idle fancy. What has to be looked to is the thing done, not the motive for doing it or the relative dates of the erection of the building and its subsequent alteration. Construction, repair, demolition - these three operations cover, I think, every varying phase in the life of a building from its beginning to its end.
I prefer to rest my judgment on this broad ground. But I cannot help thinking that something narrower would lead to the same result in the present case. May one not say with the strictest propriety that a building is in course of construction when it is being reconstructed in order to make it what it was intended to be - a firm and substantial structure, capable of resisting the action of the wind? Reconstruction is but construction over again.
The learned counsel for the respondents sought to draw an inference in their favour from the circumstance that the word "alteration" occurs in connection with engineering work, but not in connection with buildings. I should suppose that in the latter case it was omitted designedly, because it is impossible to conceive any alteration in a building - that is, of course, any substantial alteration - which does not involve construction. In the case of an engineering work as defined in the Act it is very different. To take one instance by way of example, "alteration" in the case of "a railroad" would include shifting or reversal of rails, alteration of points, change of levels, and many other things which no one would ordinarily call either construction or repair.
There was one point made by the learned counsel for the respondents which ought, I think, to be noticed. The learned counsel did not contend that the arrangement of boards and ledgers and trestles, which for want of a better word I have called a staging, was not a scaffolding in the common acceptation of the word. Everybody called it a scaffolding. But they argued that it was not such a scaffolding as was contemplated by the Act. Taking the view which commended itself to Collins L.J. both in the present case and in Maude v. Brook, [F6] they said that the scaffolding "must have some relation to the height of the building." And when pressed to submit a more definite proposition they proceeded to contend that it must be a scaffolding adequate for the construction or repair of a building exceeding thirty feet in height "as a whole," or, to use the language of the Lord Justice in Maude v. Brook, [F7]
"One system of scaffolding for the whole building which is capable of being used for its construction or repair as a whole."
That might have been a reasonable provision if the accidents to which the Act applies had been confined to accidents in some way connected with the use of the scaffolding. But it is not suggested that anything of the sort is to be found in the Act. All that the Act requires is that there should be a building exceeding thirty feet in height which is being constructed or repaired by means of a scaffolding. It says nothing about the height or position or extent of the scaffolding. It is not, I think, for the Court to lay down conditions which Parliament has not thought fit to impose.
I ought perhaps to add that I agree with my noble and learned friend, Lord Brampton, and with Collins L.J. in thinking that the question whether a temporary staging is a scaffolding within the meaning of the Act is not a mere question of fact on which the finding of the county court judge is final. It is a mixed question of fact and law. When the facts are ascertained it is a question of law on which the Court of Appeal is entitled, and I think bound, to express an opinion.
The provision as to the height of the building, and the provision with reference to a scaffolding, serve roughly to draw a line of demarcation between employments with which the Act is not concerned and those to which it is intended to apply. They were intended to exempt a certain class of buildings, and perhaps a certain class of builders of the humbler sort, from the operation of the Act. They are obviously copied from the Factory and Workshop Act, 1895, where the same provisions serve a somewhat similar purpose. I do not think they throw any light on the construction of the Act.
I agree that the only way to construe the Act is to read it fairly, taking the words in their common and ordinary signification, and that the Court ought not to strain the language in order to bring in or to exclude any particular case, however arbitrary or unscientific the line of demarcation drawn by the Act may seem to be. But I think that in the present case the learned judges of the Court of Appeal have taken too narrow a view. If you construe the words of the Act so narrowly as to exclude one of the commonest operations of the builder, the alteration of buildings once completed, and so debar workmen engaged in that operation from all benefit of the Act, you are, I venture to think, violating the letter as well as the spirit of the enactment.
I think that the appeal ought to be allowed with costs in the Court of Appeal, and with such costs in this House as are allowed in pauper cases, and that the order of the county court judge ought to be restored. And I move your Lordships accordingly.