Short v Henderson
| Jurisdiction | Scotland |
| Docket Number | No. 18. |
| Year | 1945 |
| Date | 1945 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Workmen's CompensationAct 1925 (15 and 16 Geo V, cap. 84), sec. 3(1)"Workman"Dockers assigned to cargoes in rotation by union secretaryLump sum payment by cargo owners based on tonnageSum divided among dockers working cargoWhether injured docker under contract of service with cargo owners.
"Workman" is defined by the Workmen's Compensation Act, 1925, sec. 3 (1), as "any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, is oral or in writing."
The task of discharging ships at a port was in the hands of dockers belonging to a trade union, the men being assigned in rotation to the ships as they arrived by the secretary of the union. The work was paid for on a tonnage basis, the sum payable for any ship being paid in a lump sum to one of the men working on her, who divided it equally, irrespective of the work done by each man. Over a long period of years no control of, or interference with, the method of work had ever been exercised on behalf of a ship or the owners of a cargo, and no one had ever asserted a right to discharge or suspend a docker. A docker who had suffered injury by accident arising out of and in the course of the work of discharging a ship in the port claimed compensation from the cargo owners as his employers. None of the gear required for unloading had been supplied by them, but their agents had made the lump sum payment.
Held that the onus was on the workman to bring himself within the ambit of the Act by establishing a contract of service between the cargo owners and himself, and that he had failed to discharge that onus.
Observations upon the indicia distinctive of a contract of service.
Archibald Short, a docker, claimed compensation under the Workmen's Compensation Acts, 1925 to 1943,1 for injury by accident arising out of and in the course of his employment from J. & W. Henderson, Limited. In an arbitration in the Sheriff Court at Campbeltown, the Sheriff-substitute (Borland), as arbitrator, awarded him compensation and, at the request of J. & W. Henderson, Limited, stated a case for appeal to the Court of Session.
The stated case set forth that the following facts were proved:"(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 secretary who sees to the working of the group, and since 1935 he has been A. M'Millan, 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 applied 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 Co. Ltd. for re-sale to Messrs Sunley & Co., contractors, Campbeltown, under which contract The Cement Marketing Co. Ltd. were responsible for the transit in ships chartered by them. By the terms of the charter-parties and the said contract The Cement Marketing Co. Ltd. were responsible for the discharge on 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...
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