Hoddinott v Newton Chambers & Co Ltd
[1901] A.C. 49(Decision by: Lord Brampton)
Between:Mary Jane Hoddinott (pauper) - Appellant
And: Newton Chambers & Co Ltd - Respondent
Judges:
Lord MacNaghten
Lord Morris
Lord Shand
Lord Davey
Lord BramptonLord 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 Brampton
My Lords, Benjamin Hoddinott, the late husband of the appellant, a riveter, being a workman in the employ of the respondents, ironwork contractors, was, on August 19, 1898, fatally injured whilst working for them at and in a building at Putney exceeding thirty feet in height, and occupied as stables by the General Omnibus Company. He died on the 22nd of the month, leaving the appellant surviving him, and it is not disputed that if any compensation is payable under the Workmen's Compensation Act, 1897, in respect of his death, she is the person to claim it.
The facts of the case are very loosely stated in the appendix, but are sufficiently supplemented in the judgment of A. L. Smith L.J. [F8] to enable me to form my opinion upon them. The building, a new one, especially designed for stables, was erected for the General Omnibus Company, according to a contract and specification, by a firm of builders, unconnected with the respondents, by means of ordinary builders' external scaffolding. It was roofed in and completed by the builders, so far as they were concerned, about six months before the time of the accident.
On the completion of the building the scaffolding was removed, and from that time the stables have been occupied by the horses of the omnibus company. A few months after such completion, and very shortly before the accident, it was considered by the engineer of the company that the building was deficient in stability and required to be stiffened in order to strengthen it and prevent its vibration by the wind, with possible danger to the whole structure. To remedy this it was determined to introduce iron stays (each weighing about one hundredweight), and by means of them to connect the iron girders over the stalls with the upright iron columns inside the building. The respondents were employed by the omnibus company, and they undertook to do this work, and the appellant's deceased husband was employed by them upon it.
At the time of the accident he was with a fellow-workman inside the stable, standing upon a platform erected solely for the purposes of this work. It was used by the workmen in the daytime, but was removed every evening to enable the horses to occupy their stalls for the night. No poles were used in its construction; it was formed by boards each twelve feet long, nine inches wide, and one and a half inches thick, resting on ledgers lashed to the iron columns, and, in order to make the structure more firm, trestles were placed under the middle of the scaffold boards to support them. The platform on which the deceased was standing was raised about eight feet above the ground. He was in the act of lifting one of the stays when he lost his balance and fell to the ground, the stay falling on him, and he died from the injuries thereby occasioned.
No question arises as to the regularity of the proceedings before the county court judge, who found as facts, first, that the building was of a height exceeding thirty feet, measured from the ridge of the roof, though the top of the parapet wall was only twenty-eight feet; secondly, that the work the deceased was employed upon was a work of "construction, alteration, or repair," and he held that the structure from which the deceased fell was "scaffolding" within the meaning of s. 7 of the Act, and awarded to the appellant, as widow of the deceased, 245l. 14s. as compensation.
I would here point out that there really was no finding to justify any award, for the county court judge only found that the deceased was engaged on one of three descriptions of work - construction, alteration, or repair. If it was "alteration," no claim would arise. The point, however, was not taken, and this House, I assume, will treat the finding as though the word "alteration" had been omitted.
The 7th section of the Act, sub-s. 1, enacts: "This Act shall apply only to employment by the undertakers 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."
In endeavouring to arrive at a satisfactory interpretation of this section, one labours under considerable difficulty. The whole statute is full of incongruities. In it, so many things are said which could not have been meant, and so many things which must have been meant are left unsaid, that one often has great hesitation in even forming a conjecture as to what may have been the views and intentions of its framers.
What, for instance, could be the object of debarring a workman from seeking compensation under the Act for any injury he might sustain during his employment in erecting a building intended to be of much greater height than that mentioned by means of a scaffold, until that building has been already actually erected to a height exceeding thirty feet, even though such injury is caused by something falling on him from the very scaffold which had been put up to a much greater height for the purposes of the building then in course of construction? Yet this was in substance ruled in the case of Billings v. Holloway [F9] by compulsion of the plain unambiguous language of the Act. The effect of this enactment would, in the case of a building intended to be thirty-one feet high, be to limit the liability of the employers to the period of time occupied in erecting the last foot.
I have neither heard nor read any satisfactory reason for the enactment. I am rather inclined to think it was taken and adopted without consideration from art. 2 of the schedule to the Notice of Accidents Act, 1894 (57 & 58 Vict. c. 28), defining the character of the accidents required to be notified to the Board of Trade - an article which is foreign to the objects of the Act I am now considering, and which article was repealed by 58 & 59 Vict. c. 37, s. 54, before the passing of the Workmen's Compensation Act. It is not disputed by any one that the Act applies to internal as well as to external scaffolding.
I pass on to consider now the only questions which this House is called upon to decide in the present case.
They are, first, whether the work upon which the deceased was employed when he met with his injury was a work either of construction or repair; secondly, whether the structure from which he fell was "a scaffolding" within the meaning of the 7th section, sub-s. 1.
In his judgment in the Court of Appeal, A. L. Smith L.J. said [F10] that it could not be construction, for that the building had already been constructed and completed, and was in actual use, and that which was done was only an addition to that which had originally been contemplated; and that an addition could not come under the head of repairs; and on that ground the appeal from the county court judge was allowed.
I cannot assent to this view of the case, my own opinion being that that which was being done to the building was a work of construction. It must be conceded that, so far as the original builder was concerned, his contract had been carried out according to the specification, and the external scaffolding had been removed six months before the accident, and it was then considered by all concerned that the building needed nothing more to make it fit for permanent use.
This concession, however, seems to me to be immaterial. We have nothing to do with the building contract. The question we have to deal with is, was the building in fact fully constructed, or was it faulty and deficient in its construction, for the purpose for which it was intended? If that which was being done when the accident occurred was needed for the proper strength of the building, and ought to have been done, but was omitted to be so when the builder had finished his work, then, whether such omission was attributable to the neglect or oversight of those who framed the specification, or to the builder failing to perform his obligations, the building was in fact deficiently constructed, and if the work done was simply to supply that deficiency and make the building what it ought to have been at the first, it was a work of construction. It may be that it was also an addition in the sense that it was an addition of something necessary to supply an omission, and give to this building that inherent strength which it ought to have had originally.
If the same stays which were in course of being fitted when the accident happened had been so fitted before the original building had been handed over by the builders to the company, they would clearly have formed a part of the building: why should they not become so when fitted to supply the omission of that which was deemed to be essential to its security? I fail to see any reason, and I therefore think the work was one of construction. Suppose the foundation of one of the walls had been found to be insecure, would not work done to make it safe be work of construction? Assuming I am right in the view I have expressed, what signifies it that the discovery of the defect was not made for a long time? That would not alter the fact.
Assuming, however, for a moment that when the builders' work was originally completed, it was in all respects apparently perfect, but that in the course of a few months it was from some undiscovered cause found to be deteriorated, and so unsteady that it was necessary to put in the stays or to do some other work to restore it to the condition it had been in when the builders left it: why that might not be treated as repair, I fail to see. No cases have yet been decided upon the subject of what is "construction" and what is "repair." In Wood v. Walsh [F11] A. L. Smith L.J. said, "Constructed or repaired means some work relating to the structure of the building."
I will now deal with the question whether the arrangement on which the deceased was working, and from which he fell, was a scaffolding within the meaning of s. 7, sub-s. 1, of the statute.
Hitherto the Court of Appeal seems to have treated this question as a matter of fact for the county court judge or the arbitrator, by whom the claim for compensation is heard, to determine, and upon which his finding is not open to review. In the last reported case on this subject, Ferguson v. Green, [F12] it was so expressly ruled by the Master of the Rolls (Sir A. L. Smith) and Collins and Stirling L.JJ., following previous decisions by the same Court, Wood v. Walsh [F11] and Maude v. Brook. [F13] With all respect for those judgments, I cannot concur in them.
I thoroughly agree that the arbitrator or county court judge is the proper tribunal to find every fact which is necessary for the determination of the question whether the arrangement in the particular case before it is or is not "scaffolding" within the meaning of the Act. Such, for instance, as the mode in which the arrangement is put together, the component parts of it, the materials used for its construction, the use to which it is applied, the place and the size of the place in which it is used, the dimensions of it, & c.; and his finding upon such facts is, according to the general rule, final; but whether upon the facts so found, the arrangement so constructed is a scaffolding sufficient to satisfy the requirements of s. 7 is, in my opinion, a question of law, which in the first instance must be adjudged by him to enable him to determine the case before him, his judgment on the question of law being open to review by the Court of Appeal. I think it is expedient that it should be so, for were it otherwise, considering the number of county court judges and arbitrators who are called upon to try such cases, there would probably be much diversity in their judgments upon the question, and the law would be very unsettled. Whereas by holding that the Court of Appeal has jurisdiction to review such finding, something like uniformity in the decisions as to what constitutes a scaffolding will very soon be established. This view is confirmed by the opinion of Collins L.J. in the case of Maude v. Brook, [F14] in which he expressly said: "Whether a particular arrangement is a scaffolding is not a question of pure fact, and therefore not merely a question for a jury without direction as to the law." Whether a bicycle was a carriage within the meaning of the Highway Act was treated as a question of law in Taylor v. Goodwin. [F15]
No definition is given in the Act as to what shall be deemed a scaffolding within the meaning of the 7th section. Nor do I think it would be possible to frame a satisfactory definition which would be universally applicable. Few people are unacquainted with that character of scaffold which has for certainly many generations been commonly used by builders, but nobody in these days would venture to assert that the meaning of the word "scaffolding" is confined to such arrangements as those; and I entirely agree with Rigby L.J., who, in his judgment in Maude v. Brook, [F16] says:
"In construing the Act we are not at liberty to confine the meaning of the word 'scaffolding' to that which is its most usual form; anything whether usual or unusual that can properly be called scaffolding is within the Act";
and a little later on he illustrates his meaning by expressing a clear opinion that, if a builder had the control of two walls, one on each side of the site where a scaffold was needed, he might, if he could do so, utilise them by laying planks across from one to the other, and that such a structure would be a scaffolding without the use of either poles or trestles; so in like manner in the present case, in my opinion, the iron columns already existing in the stables might equally be used - as they were - to form a scaffolding by lashing to them by ropes pieces of wood or metal to help in the support of the boards which were to form the platform on which the workmen were to do their work. No doubt for all external scaffolding wooden poles, boards, and planks, fastened together by ropes in the ordinary way, are commonly used, because they are found to be most convenient; but they are not essential to the formation of external scaffolding, while for internal scaffolding it would for the most part be impossible to use such scaffolding in houses or buildings divided into rooms.
Possibly some day a question may arise whether an arrangement suspended from the ceiling, such as is often used for the interior of cathedrals, & c., is a scaffold within the Act. Old dictionary definitions, written more than a century ago, on such a subject are but of little use in these modern days, except to inform us as to the general character and use of a scaffold or scaffolding. For that purpose only I refer to an old dictionary published in 1754, composed by Dyche and Pardon, in which a scaffold is described as "a place erected above the ground with poles for walls and supports, and boards laid loosely for floors, to serve a present occasion of workmen's standing safe and easily to repair or build a house, church, & c., or for spectators to see a show, & c.," and "scaffolding" is defined as "the poles, boards, & c., that are kept or made use of to build or erect scaffolds upon any occasion."
In Walker's Dictionary, "scaffolding" is defined as "a support for workmen." Now, when s. 7 speaks of "a building which is either being constructed or repaired by means of scaffolding," it obviously includes either external or internal work of construction or repair, and it contemplates a scaffolding being used for either, and it is noticeable that it speaks of workmen employed "on, in, or about" a building. The line between that which constitutes construction and that which constitutes repair is often a very fine one, and either may be needed either inside or outside a building. Brickwork may become defective, window or door sills may require to be taken down and replaced by new ones, beams supporting ceilings may give way, plastering may fall away from walls, & c., in any part of a building - for most of such works, whether of construction or repair, a scaffold of some kind is necessary. Outside the house, if the work to be done was high up, it might be most convenient to use a tall substantial one; inside, in rooms, a much smaller one would be all that was required, and that might be constructed in a variety of ways, and of any material or combination of materials suitable for the purposes. The size, height, and mechanism of it would, as a matter of fact, of course, depend upon the position in the building of the place needing construction, reconstruction, or repair, and a variety of circumstances impossible to anticipate, and which, therefore, I will not attempt to describe. A reference to decided cases will give some idea of what might and what could not satisfy the term "scaffolding." I will merely mention the most recent of them: Wood v. Walsh; [F17] Maude v. Brook; [F18] Hoddinott v. Newton, Chambers & Co. [F19]
In my opinion the structure in the case now before us may well be described as a scaffold within the meaning of s. 7. I know that Collins L.J. expressed a different opinion both in Hoddinott v. Newton, Chambers & Co. [F19] and in Maude v. Brook. [F18] In the latter case that learned judge summarises his opinion thus: [F20]
"The word 'scaffolding' as used in this Act indicates that there must be one system of scaffolding for the whole building which is capable of being used for its construction or repair as a whole."
I cannot agree in this, for, were it so, it would be impossible to introduce into an ordinary room undergoing repair and requiring the use of a scaffold, one adapted for the construction or repair of the whole building. I think the meaning of the Legislature was that from time to time, when work of construction or repair required the aid of a scaffold, any scaffold suitable for that particular purpose would be within the meaning of s. 7. The scaffold used in the construction of the building as a whole had no connection with the accident in this case; it had ceased to exist months before the work on which the deceased was employed was even contemplated, and even had it been in existence, it would have been useless as regarded that work. Had there been no scaffold used in the construction of the original building I should have thought it immaterial to the present case, though it might have protected the employer against compensation for accidents happening during the construction of the original building. This scaffolding pointed to in s. 7 must and could only reasonably apply to one used for the particular work in the course of being carried out when the accident occurred. In construing this section it must be remembered that the Act was only passed in 1897 (about three years ago), when an indefinite number of buildings exceeding thirty feet in height were in existence - some unsafe and requiring demolition, others badly constructed at first and requiring work of reconstruction; others from one cause or another falling into a state of deterioration and needing repairs to make them fit for future occupation. All these conditions must have been in the contemplation of the Legislature in framing the Act. When I realize to myself that the necessity for such works of construction or repair may occur in all or any parts or part of the building, whether high up near the top or low down even to the foundations, and that such defects will in course of time inevitably make their appearance in the now newest buildings, and that such works, reconstruction, or repair will, when the defects cannot be reached by a man standing on the ground, require the assistance of a scaffold, I feel driven to the conclusion that the Act, with all its faults, in using the word "scaffolding" meant scaffolding suitable for the occasion, and could not have intended to confine it to such a scaffold as was capable of being used for the construction or repair of the building as a whole, which in a large majority of cases would be so inconvenient and costly as to be absurd.
For the reasons I have given, I think that this appeal should he allowed with the usual costs.