Between:Mary Jane Hoddinott (pauper) - Appellant
And: Newton Chambers & Co Ltd - Respondent

Judges: Lord MacNaghten
Lord 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

Judgment by:
Lord Lindley

My Lords, this is an appeal from a decision of the Court of Appeal against an award made under the provisions of the Workmen's Compensation Act, 1897.

The facts of the case are not in all respects so clear as might be desired; but admissions were made by counsel on both sides, both before the Court of Appeal and at your Lordships' bar, and with the assistance of those admissions the facts may be stated as follows.

Some time before the accident which gave rise to the claim for compensation, the London General Omnibus Company had employed some builders to erect some large stables for them in Putney. Those stables had been erected and completed, according to the original design and specification, some five or six months before the time of the accident, and had been taken over and used by the omnibus company for stabling their horses.

The stables were constructed partly of brickwork and partly of iron. The ironwork consisted of upright pillars carrying transverse girders. There were two storeys, and the horses were stabled both on the ground floor and on the first floor. The height of this erection was twenty-eight feet from the ground to the top of the walls, and thirty-six feet to the ridge of the roof. None of the scaffolding used in the erection of the stables was standing when the accident happened. The defendants, Newton, Chambers & Co., had not been employed in the erection of these stables.

After they had thus been completed and had been in use for stables, it was thought desirable to put in some iron stays in order to prevent vibration, and the defendants, Newton, Chambers & Co., were employed by the omnibus company to do this work. The stays were T angle iron bars twelve or fourteen feet long and about one hundredweight in weight. These were to be fastened by one end to the upright pillars on the ground floor, and to the transverse girders carrying the first floor. The stays were put diagonally across the angles made by the pillars and girders, and they met, or nearly met, at the top. They thus stiffened the ironwork and stopped the vibration. The extent of the vibration is not proved; the cause of it is not proved; why it was desirable to stop it was not proved. There is no evidence whatever to shew that the building was unsafe. It was stated before the coroner that the stays were put in "to stay the building so that the wind might not vibrate it." The evidence before the coroner was used by consent before the judge of the county court, and also before the Court of Appeal. But this is all that can now be ascertained as to the reason for putting in the stays. The inquiry is only important with reference to the question whether the building was being constructed when the accident happened. To this question I will return presently.

The stays were put up in the daytime, when there were few, if any, horses in the stables. The stays had to be lifted up into their proper places and held there for a short time whilst the places at which rivet-holes were to be made were marked. To enable the workmen to raise the stays to their places and to hold them there, platforms had to be constructed about eight feet above the ground floor; and in order to stable the horses at night these platforms had to be daily constructed when the stables were empty, and to be removed before the horses came in for the night. These platforms were made by placing ordinary loose planks carried by trestles and by ledgers laid across poles lashed to the pillars. These platforms are called scaffolds by all the witnesses who speak of them, and by the county court judge and by the members of the Court of Appeal. I so regard them; I do not know how better to describe them. I will consider presently whether they come within the meaning of a scaffolding as used in the Workmen's Compensation Act.

The husband of the plaintiff was on one end of these scaffolds lifting one end of a stay, whilst another man was lifting the other end. The plaintiff's husband overbalanced himself, or was overbalanced, and he fell from the scaffold and died shortly afterwards.

The plaintiff brought an action for damages against the defendants on the ground of negligence and defect in the scaffold; but the county court judge-decided that the scaffold was not insufficient, and that the accident was not caused by insufficient scaffolding. Thereupon an application was made for compensation under s. 1, clause 4, of the Workmen's Compensation Act, 1897, and the county court judge heard such application, and decided that the defendants were "undertaking the construction, alteration, or repair of the stables." He further decided that the building exceeded thirty feet in height, and he awarded the plaintiff compensation to the amount of 245l. 14s., from which, however, part of the defendants' costs of the action were to be deducted. From this award the defendants appealed, and the Court of Appeal set aside the decision of the county court judge. From this decision the plaintiff has obtained leave to appeal in formapauperis to this House, and the appeal has been fully argued at your Lordships' bar.

The case turns on ss. 1, 7, clauses 1, 2, of the Workmen's Compensation Act, 1897, and on the language there used with reference to buildings. The putting in of the stays was not an engineering work as defined in s. 7. This observation is important, because in the case of an engineering work undertakers are defined to mean "the person undertaking the construction, alteration, or repair"; whilst in the case of a building, undertakers are defined to mean "the persons undertaking the construction, repair, or demolition," the word alteration being omitted.

Confining ourselves to buildings, and interpolating the definition of undertakers of buildings, s. 7, clause 1, makes the Act applicable, but only applicable, to employment by persons undertaking the construction, repair, or demolition of any building of any person on, in, or about any building which exceeds thirty feet in height, and is being constructed or repaired by means of a scaffolding, or being demolished. Now, I cannot bring myself to say that the defendants were persons undertaking the construction, repair, or demolition of these stables. Demolition may be disregarded: nothing was being demolished. Repair may also be disregarded: nothing was out of repair. Construction alone remains; but can it be fairly said that the defendants, who had nothing whatever to do with the erection of the stables, undertook the "construction" of them when they undertook to stop or diminish the vibration of which their owners complained? It is true that the stays were additions to portions of the structure of the stables, and in that way were additions to the stables.

But constructing a building is one thing; improving it after it is constructed, even by making additions to its structure, is quite a different thing. I quite admit it may be very difficult to draw the line sharply in all cases between constructing a building and adding to its structure; but in this particular case I see no difficulty at all in coming to the conclusion that the defendants did not undertake to construct this building, and were not undertakers within the meaning of the Act. I cannot bring them within the words of the definition. The fact that the word "alteration," which enters into the definition of undertakers of engineering works, is omitted from the definition of undertakers of buildings, is not to be overlooked, and it supports the conclusion at which I have arrived. If the omission were designed, it would support such conclusion very strongly. But the act is very badly drawn, and it is scarcely safe to rely on the contrast between the two definitions. It is safer to rely on the fact that in the definition of undertakers of buildings nothing is said about additions, improvements, or alterations; and unless they can fairly be regarded as works of construction, repair, or demolition, the persons who undertake them are not undertakers as defined in s. 7.

The learned county court judge evidently failed to appreciate the difficulty created by the definition clause; for he introduced the word "alteration," and found that the defendants were undertaking the "construction, alteration, or repair." This finding was clearly insufficient to make them liable under the Act.

I pass now from the builders to the building itself. The Act does not apply to all buildings, but only to those which exceed thirty feet in height and are being constructed or repaired by means of a scaffolding, or being demolished, or on which machinery driven by steam, water, or other mechanical power is being used for the purpose of the construction, repair, or demolition thereof. These words relating to the use of machinery have no application to the present case, and I therefore say nothing about them. The provisions relating to height and to the use of scaffolding refer to the time of the accident, and not to any time before or afterwards. The use of the present tense "which exceeds thirty feet," and "is either being constructed or repaired," & c., shews this; and the Court of Appeal so decided in Billings v. Holloway. ^[F21] Why thirty feet should have been adopted as the minimum height is not apparent, but that limit is adopted, and the only question is how the measurement is to be made. The county court judge and the Court of Appeal have both held that the height of the roof must be reckoned, and be added to the height of the walls, and this appears to me obviously correct.

The reference to scaffolding creates great difficulty. Sects. 1 and 7 of the Act clearly extend to accidents which are not caused by defective scaffolding, and which are not in any way attributable to the use of scaffolding. If a house is thirty feet high, and is being constructed or repaired by means of a scaffolding, and any workman is injured to the extent mentioned in s. 1, clause 2 (a), by any accident arising out of and in the course of his employment on, in, or about such building, he is entitled to compensation, whatever the cause of such accident may have been, unless it arose from his own serious and wilful misconduct (see s. 1, clause 2 (c)). This seems plain from the language of ss. 1 and 7, and has also been decided by the Court of Appeal in Maude v. Brook. ^[F22]

But the use of a scaffolding is essential to bring a building being constructed or repaired within the Act where no machinery is employed to construct or repair it. What is meant by a scaffolding? Is any scaffolding meant? Is there any difference material to the present question between a scaffolding and a scaffold? My Lords, there is nothing in the Act which requires the scaffolding to be of any particular description or dimensions, or to be in any particular place or of any particular height. I cannot help thinking that to make any distinction between one scaffolding and another, or between a scaffolding and a scaffold, would be to introduce a subtlety not required by the Act, and one far too fine for practical work. In my opinion, anything which can fairly be called a scaffold is a scaffolding within the meaning of s. 7 if used as mentioned in the Act. This I understand to be the view adopted by the present Master of the Rolls and by Rigby L.J. ^[F23]

But a more restricted meaning is put on the word scaffolding by Collins L.J. ^[F24] He thinks that boards on trestles inside a room are not, in point of law, a scaffolding within the meaning of the Act, and he did not consider the platforms in this case to be such a scaffolding. He thinks that nothing can be a scaffolding within the Act except "one system of scaffolding for the whole building, which is capable of being used for its construction or repair as a whole." ^[25] My Lords, I cannot go so far. I cannot say that boards on trestles, even inside a room, may not be a scaffolding, and still less can I say that the platforms in question in this case could not be so regarded if used as mentioned in the Act. This question of scaffolding is one of such importance, and it was so much discussed at your Lordships' bar, that I have thought it desirable to allude to it, and to express my own opinion upon it.

But although I think the platform in this case might have been a scaffolding within the meaning of s. 7, and that the stables were a building more than thirty feet high, yet, for reasons already stated, I cannot come to the conclusion that the building was being constructed or repaired when the accident happened.

The Act, therefore, has no application to this case: it does not apply either to the defendants or to the building at the time of the accident.

The appeal ought, in my judgment, to be dismissed.

Order of the Court of Appeal reversed and award of the county court judge restored: the respondents to pay the appellant her costs in the Courts below and in this House, costs in this House to be taxed in the manner usual when the appellant sues in formapauperis. Cause remitted to the county court.

Lords' Journals, December 10, 1900.