Short v Henderson
| Jurisdiction | UK Non-devolved |
| Judge | Lord Thankerton,Lord Simonds,Lord Uthwatt |
| Judgment Date | 29 March 1946 |
| Judgment citation (vLex) | [1946] UKHL J0329-4 |
| Court | House of Lords |
| Docket Number | No. 3. |
| Date | 29 March 1946 |
[1946] UKHL J0329-4
Lord Thankerton
Lord Macmillan
Lord Wright
Lord Simonds
Lord Uthwatt
House of Lords
After hearing Counsel as well on Thursday the 28th day of February last, as on Friday the 1st day of this instant March, upon the Petition and Appeal of Archibald Short, 53 Longrow, Campbeltown, Argyllshire, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the Second Division, of the 12th of January 1945, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of J. & W. Henderson, Limited, lodged in answer to the said Appeal and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor, of the 12th day of January 1945, complained of in the said Appeal, be, and the same is hereby Recalled, and that the Question of Law in the Stated Case be answered in the Affirmative; And it is further Ordered, That the Cause be, and the same is hereby, remitted back to the Court of Session in Scotland with a Direction that the Case be remitted to the Sheriff-Substitute as Arbitrator to proceed as accords, and to do therein as shall be just and consistent with this Judgment; And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the costs of the Action in the Court of Session including the costs of the Remit made on the 16th of June 1944, and also the costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned costs to be certified by the Clerk of the Parliaments; And it is also further Ordered, That unless the costs, certified as aforesaid, shall be paid to the party entitled to the same within One Calendar Month from the date of the certificate thereof, the Court of Session in Scotland, or the Judge acting as Vacation Judge, shall issue such Summary Process or Diligence for the recovery of such costs as shall be lawful and necessary.
My Lords,
The Appellant is a dock labourer at Campbeltown, and, on 9th September, 1941, he sustained injuries by accident while engaged with other dock labourers in the discharge on to the quay of a cargo of cement in bags from the motor vessel Fredanja, for which discharge the Respondents were liable under their contract for sale of the cement to a firm of contractors at Campbeltown. Two of the dock labourers working along with the Appellant were also injured, and all three raised arbitration proceedings against the Respondents for compensation under the Workmen's Compensation Acts. The other two applications were sisted by the arbitrator to await the decision in the Appellant's application.
After enquiry, the arbitrator sustained the Appellant's claim, and made an award in his favour. On the requisition of the present Respondents, the arbitrator stated a case for the opinion of the Court of Session. After a remit for the finding of further facts, the appeal was heard by the Second Division of the Court of Session, who, by interlocutor dated 12th January, 1945, allowed the question of law to be amended as asked for by the parties—so as to read, "Was I entitled to hold that the claimant was a workman of the Appellants entitled to an award of compensation in terms of the Workmen's Compensation Acts?"; thereafter the Court answered the question as amended in the negative, sustained the appeal; recalled the determination of the Sheriff-Substitute as arbitrator, and remitted the case back to him to proceed as accords. The Appellant now appeals against that interlocutor.
The only matter of dispute in the case has been whether the Appellant, at the time of the accident, was working under a contract of service with the Respondents, by way of manual labour, within the terms of the definition of "workman" in section 3 (1) of the Act of 1925. If he was so working, it is conceded that the accident arose out of and in the course of the employment, and the award is not in dispute. On the other hand, if he was not so working, he has no claim to compensation under the Workmen's Compensation Acts.
The only opinion delivered in the Second Division was that of the Lord Justice-Clerk, in which the other two learned Judges concurred. The Lord Justice-Clerk justifies the recall of the award of the arbitrator on four grounds—( a) that the arbitrator has required the present Respondents to negative the Appellant's claim, instead of requiring the Appellant to establish his claim; ( b) that the arbitrator has misdirected himself in relying on the National Health Insurance payments referred to in finding 18, and ( c) that the arbitrator has misdirected himself as to the distinguishing criteria of a contract of service, or ( d) that he has proceeded upon material insufficient in law to support the conclusion which he drew, or has done both these things.
My Lords, while it may well be that the learned arbitrator has not done full justice to himself in his statement of the case, I rather think that the learned Lord Justice-Clerk may have done less than full justice to the arbitrator. It will be necessary to recapitulate somewhat fully the findings of fact in the stated case and the supplementary findings made under the remit. The findings in the case are as follows:
"1. In Campbeltown Harbour for many years the discharge of ships has been in the hands of dockers who are members of a trade union.
2. These men work on what is known as a group system.
3. Under the group system the names of all the members of the union are entered and numbered on a list kept in the Union office in Campbeltown.
4. When a ship arrives the first 4, 8, 12 or 20 on the list, or whatever number she requires to discharge her, take on the work, and the shipowner (or other person interested in having the cargo discharged) has to take these men.
5. When the next ship arrives her complement of dockers begins with the first number not employed on the previous ship, and so on.
6. Under the system all get a turn of the work, and no man gets a second turn until all in the group have had one.
7. The union have a part time local group secretary who sees to the working of the group, and since 1935 he has been A. McMillan whose duties qua union secretary are, inter alia, to adjust union wages and working conditions for the members of his union in Campbeltown.
8. He is a working docker the same as all the others, with a number in the group like the rest.
9. The members of the group work entirely on a tonnage rate and never on a time rate.
10. The tonnage rate is divided equally among the men doing the work, irrespective of which part of the work each does. This applies to the secretary equally with the others and unless he is working he gets no share. He never gets a payment of any kind from the other members of the group.
11. In or about September, 1940, the Appellants entered into a contract for the purchase of cement in bags from the Cement Marketing Company, Limited, for resale to Messrs. Sunley & Company, Contractors, Campbeltown, under which contract the Cement Marketing Company, Limited, were responsible for the transit in ships chartered by them. By the terms of the charterparties and the said contract, the Cement Marketing Company, Limited, were responsible for the discharge on to the quay at Campbeltown.
12. Since June, 1941, the Appellants had been responsible for the discharge of the cement which they were shipping to Campbeltown.
13. When the Appellants' first ship arrived no arrangements had been made by them for her discharge, and the next men on the group list discharged her.
14. These men through their said union secretary obtained payment of the tonnage rate for this class of goods from Messrs. McEachran & Company, steamship brokers, Longrow, Campbeltown, on an agreement that if they were paid direct, and Messrs. McEachran were not employed, they would repay Messrs. McEachran.
15. Messrs. McEachran were in July, 1941, employed by the Appellants to attend to the discharge of vessels arriving in Campbeltown with cement for the Appellants.
16. Thereafter Messrs. McEachran, as they had always been in the habit of doing, advised the group of the expected arrival of each ship for the Appellants, and each was discharged in accord with the custom of the group.
17. Messrs. McEachran paid the lump sum based on the tonnage rate for the discharge to whichever member of those engaged on the ship was sent for the money. This lump sum was divided by the men according to Finding 10.
18. If any member working on a ship, discharging cement for the Appellants, was thereby employed for the first time in that week, Messrs. McEachran stamped his National Health and Unemployment Insurance cards, deducted the man's proportion of the contribution from their payment and received the employers' portion from the Appellants, without question.
19. The m.v. Fredanja arrived with a cargo of cement for the Appellants at Campbeltown on 8th September, 1941.
20. Mr. McEachran advised the group of her expected arrival and the claimant as a member of the group was one of the dockers engaged discharging her until his accident on 9th September, 1941."
The arbitrator then stated his inference of fact and his conclusion in law as follows:
"21. The claimant was employed by the appellants on the discharge of the m.v. Fredanja.
22 While so engaged he was a workman of the appellants within the meaning of the Workmen's Compensation Acts."
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