Green v Britten and Gilson
[1904] 1 K.B. 350(Judgment by: Collins MR (including background))
Between: Green
And: Britten and Gilson
Judges:
Collins MRMathew LJ
Cozens-Hardy LJ
Subject References:
EMPLOYER AND WORKMAN
Compensation
Injury to Workman
Factory
Warehouse
Legislative References:
Workmen's Compensation Act, 1897 (60 & 61 Vict. c. 37) - s. 7, sub-s. 2
Case References:
Colvine v. Anderson, considered. - (1902) 5 F. 255
Judgment date: 15 December 1903
Judgment by:
Collins MR (including background)
A place used in connection with, or as ancillary to, a wholesale business, for the storage of goods in large quantities to be sold in the business, is a warehouse within the meaning of s. 7, sub-s. 2, of the Workmen's Compensation Act, 1897.
Colvine v. Anderson, (1902) 5 F. 255, considered.
Appeal from the decision of the judge of the Southwark County Court upon an application for compensation under the Workmen's Compensation Act, 1897. The applicant had sustained injury while engaged in moving heavy sheets of plate-glass, kept by the respondents in a railway arch, which formed part of their business premises.
The notes of the learned judge were prefaced by the following statement:
"The case turned on whether the 'plate arch' in which the respondents stored and polished their heavy glass was a warehouse within the meaning of the Act. The respondents carried on a large business as drysalters and dealers in glass in a large shop in Union Street, Southwark. It was in the plate arch that the applicant was injured. The business of the firm is conducted in the shop; no more glass is stored there than is necessary for the current business. The glass is either supplied to the shop for customers giving their orders there, or when orders arrive from travellers the firm's carts fetch the glass direct from the plate arch. I held that the place in which goods are so kept for such a purpose is not a warehouse within the meaning of the Workmen's Compensation Act. In so finding I assumed to follow the principles laid down by the Courts."
From the evidence it appeared that the respondents carried on business as oil and colour merchants, drysalters, and glass-dealers, and that the applicant had been in their employment for sixteen years, during the last five or six years of which he had been employed as warehouseman and occasionally as carman. The respondents' premises were in three parts. One part fronted Union Street, and was used for oil, colours, turpentine, and drysalters' goods; it was called by the witnesses the front shop; it was open to customers to come in and buy or order goods, and in it was the office for correspondence, & c. On the opposite side of a narrow street were some railway arches, two of which were occupied by the respondents; one was used as a lead and glazing shop, and was connected with the front shop by an underground way; the other, which was not so connected, was used for stacking cases and crates of glass, and was called the plate arch. On the day of the accident a foreman wanted a case from the back of this arch in order to load it for removal, and while the applicant was helping to shift some cases in order to get at it three of them fell on his leg, causing permanent injury to the knee. The arch was about 30 feet wide, 80 feet deep, and 15 feet high, and the cases stacked in it came from abroad and contained window-glass; there were sometimes as many as 400 or 500 cases in the arch. Customers did not go into the arch, and there was no buying or selling there. The front shop was open to any customers wishing to buy glass, and if the respondents had not there the glass required by or sold to customers, they sent to the arch for it. In the case of orders obtained by the respondents' travellers, the glass was sent to the customers direct from the arch.
It was contended on behalf of the respondents that the arch was not a warehouse within the meaning of s. 7, sub-s. 2, of the Workmen's Compensation Act, 1897, on the grounds, first, that it was used for the purpose of carrying on a business which was not that of warehousemen; and, secondly, that it was a workshop within the meaning of s. 149 of the Factory and Workshop Act, 1901, and was therefore not a warehouse. The finding of the county court judge was in the following terms:
"I find that the 'plate arch' was used as ancillary to the business carried on in Union Street, and only so used, as a storehouse from which the wholesale and retail customers giving their orders either in the shop or by customers' orders to the travellers were supplied; goods being daily delivered there and also delivered out, and so not a warehouse within the meaning of the Act."
He further found against the contention of the respondents that a workshop could not also be a warehouse. He therefore made an award in favour of the respondents.
The applicant appealed on the ground that the learned judge was wrong in law in holding that the place in which the accident happened was not a warehouse within the meaning of the Workmen's Compensation Act, 1897.
P. T. Blackwell (Martin O'Connor with him), for the applicant. The plate arch was a warehouse, and therefore a factory, within the meaning of s. 7, sub-s. 2, of the Workmen's Compensation Act, 1897. The reason given by the county court judge for holding it not to be a warehouse, namely, that it was ancillary to the business and only used as a storeroom, was in effect a misdirection upon a point of law. There is no definition of "warehouse" either in the Workmen's Compensation Act or in the Factory Act; it must, therefore, be construed in its ordinary and popular signification, as was done with the word "wharf" in Haddock v. Humphrey. [F1] The definition of "warehouse" in Johnson's Dictionary is "a storehouse for merchandise," and in the Century Dictionary "a house in which wares or goods are kept; a storehouse"; also, "a store for the sale of goods at wholesale; also, often, a large retail establishment." This plate arch comes within those definitions.
[COLLINS M.R. If the arch were merely used for goods that were all cleared away in the course of the day, it would not be a storehouse.]
That would not be so strong a case, but it would be a question of evidence; here the goods are stored until sold in the shop in the ordinary course of business. The present case falls within the principle of the decision in Willmott v. Paton, [F2] where it was held that a yard or depot five acres in extent and having sheds upon it, which was used for storing old iron and breaking it up for sale, was a "warehouse" within the meaning of the Act. The decision in Burr v. Whiteley [F3] is distinguishable; for in that case the part of the premises which it was sought to bring within the term "warehouse" was only used for storage of goods which were subsequently sold in the adjacent retail shop. The result of the authorities is that the question is a mixed question of law and fact, and the county court judge has misdirected himself in holding that this arch cannot in law be a warehouse. [He also cited Maude v. Brook; [F4] Hoddinott v. Newton, Chambers & Co. [F5] ]
Shakespeare, for the respondents. The county court judge was right in holding that this arch was not a warehouse. The business was in substance a business carried on in the shop, and it is immaterial that many of the orders were obtained through travellers, and that the goods were supplied from the store in the arch in execution of the orders given. The Act contemplates that, in order that a building may be a warehouse, warehousing must be the main business carried on. It is true that the Act contains no definition of "warehouse"; but it is apparent from s. 4 that that which is merely ancillary to the real trade or business of the undertakers is not within the Act; the criterion must be the nature of the business of the employer.
[COLLINS M.R. You draw a distinction between a man who merely stores his own goods and one who stores goods for hire.]
Yes. If the word "warehouse" is to be interpreted in its widest sense, it will bring every shop within the Act, for every shopkeeper must store goods for use in the business carried on there; and this arch is merely a storeroom for storing goods for the purpose of the business carried on in the shop. The case is indistinguishable from Burr v. Whiteley. [F3] [He also cited Colvine v. Anderson [F6] and Hunt v. Grantham Co-operative Society. [F7] ]
Blackwell, in reply.
Cur. adv. vult.
1903. Dec. 15. Judgment of Collins M.R. -
I am of opinion that this appeal must be allowed. The question for our determination arises in this way. The applicant met with an accident in what I may for the moment call a warehouse, the point in dispute being whether for the purposes of the Workmen's Compensation Act the place was a warehouse or not; it is difficult to describe it by a neutral term. The accident happened while he was unloading some heavy cases of glass, three of which fell on him and injured his leg. There were two railway arches in the occupation of the respondents, one of which was used for the storage of heavy glass goods, the other for lighter articles and various purposes. The respondents also occupied an office and shop in Union Street, and the arch in question, which I have called a warehouse, was used primarily for storing heavy glass goods in connection with the wholesale and retail business carried on in the shop. It seems that orders were sent by the respondents' travellers to the office or were given by customers in the shop, and the goods were supplied direct from this store or warehouse; as far as the wholesale trade was concerned, this arch fulfilled all the ordinary purposes of a warehouse, while the retail trade seems to have formed but an insignificant part of the business. The county court judge held that the arch was not a warehouse within the meaning of s. 7 of the Workmen's Compensation Act; and the question whether his decision was right is not an easy one to determine.
It is exceedingly difficult, having regard to the various decisions, to draw the line between what is a warehouse and what is not. The decisions of this Court have gone a long way, and have excluded certain lines of definition. It cannot now be contended that the word "warehouse" is limited to a place which is physically connected with a dock or with water, nor to a place where the public have a right to have their goods stored upon payment of rent; the word has been applied to places used by a particular owner for the storage of his own goods only and having no connection with water or with water transit. In a recent case we adopted the distinction drawn by his Honour Judge Wightman Wood in Hunt v. Grantham Co-operative Society, [F8] who distinguished places where goods were kept for the purposes of a retail business carried on in a shop from a warehouse, and held that where the store was merely ancillary to the business carried on in a retail shop it was not a warehouse within s. 7, as neither shops nor shopkeepers are within the Act. This principle we followed in Burr v. Whiteley, [F9] where we held that a large receptacle used for the storage of goods intended for sale in a very large retail shop was not a warehouse within the meaning of the Workmen's Compensation Act.
In the present case the business of the respondents savours both of a wholesale and of a retail nature, for while a wholesale business is carried on, there is a certain amount of retail business carried on in the shop, and goods are kept in this arch for sale by retail. In the main, however, looking at all the facts, the arch was substantially used for the storage of goods for the purposes of the wholesale trade. This being so, the learned judge misdirected himself to this extent: he assumed that the store was merely ancillary to the business carried on in the shop, and was therefore not a warehouse within the principle of the decisions. But that result does not necessarily follow, for one must look at the nature of the business carried on by the respondents, and if it is substantially a wholesale business the place where the goods are stored may be, and I incline to think as a matter of law must be, a warehouse within the meaning of the Act.
It is suggested that there is a difficulty in holding that a store which is ancillary to a retail business is not, and that one which is ancillary to a wholesale business is, a warehouse; but the two are obviously very different; and in my judgment, if this arch is ancillary to the wholesale business, it is a warehouse; if it is ancillary to the retail business, it is not. I think, therefore, that in deciding a mixed question of fact and law, the county court judge misdirected himself in point of law. The facts present no difficulty, and it seems to me that substantially this was a wholesale business, and the goods were stored in the arch for the purposes of that business. The reason which actuated the Legislature in introducing the word "warehouse" into the Act was no doubt the danger incident to the handling of goods on a large scale, as in a wholesale business, and that danger is as likely to be present whether the goods are handled in a place which is ancillary to the place in which the sale of the goods by wholesale actually takes place, or whether they are handled solely at the place of sale.
Reference has been made to the Scottish case of Colvine v. Anderson, [F10] which is said to be an authority against the view which I have taken; but I cannot see that the two cases are inconsistent with each other. I adopt the language of the Lord President when he says: [F11]
"Upon these facts, I am of opinion that the respondents' premises are not a 'warehouse' within the meaning of the Workmen's Compensation Act, 1897. There is no definition of 'warehouse' in the Act of 1897, and we know that the term is used in a variety of senses; but I think that, as used in that Act, it does not include a retail shop, which the respondents' premises practically are, otherwise every such shop would come under the provisions of the Factory Acts, which have not hitherto, so far as I am aware, been held applicable to them.
While it may be difficult to define 'warehouse,' I am of opinion that, as used in the Act of 1897, it involves the idea of a place normally of considerable size, mainly used for the storage of goods in bulk or in large quantities, and in which consequently the dangers incident to the handling of goods in bulk or in large quantities might naturally arise."
That passage expresses as accurately as possible, in my judgment, the meaning of the word "warehouse" as used in this Act, and all the conditions suggested by the Lord President are fulfilled in the present case. I think that the county court judge was too strict in his direction to himself as to the limits within which he ought to find that this store was ancillary to the retail trade; on the true facts, I am clearly of opinion that the arch was used for a purpose ancillary to the wholesale business, and was, therefore, a warehouse within the meaning of s. 7 of the Act.