The second point is this, that the purpose of the 104th section is to apply to docks, wharfs, quays, warehouses, &c., certain provisions of the Factory Act, viz., those relating to “Dangerous Machines,” “Accidents,” “Dangerous Trades,” “Powers of Inspection,” and “Fines in case of death or injury,” the enacting words being directed to making that application which is declared to operate “to the same effect as if such dock, wharf, quay, warehouse, &c., were included in the word “factory.” In other words the context of the section deals merely with docks, and premises and plant used in connection with docks.
It is perhaps a third observation that in the previous Act of 1895 the corresponding compartment or section is headed “Docks, &c.,” and that in the present Act—the consolidating Act of 1901—the expression is “Docks” without the “&c.”
In these circumstances if the word “warehouse,” occurring in a section or compartment so headed, and having such a context, is to be construed in the usual way and on ordinary principles, I confess to being quite unable to see how by any stretch of construction it can be read as covering a yard in the city of Perth “used for the storage of pipes, cement, and other material used in the making of roads,” and for the breaking of road metal and its storage in bings. It appears to me that if any effect is to be given to the heading of the section and to the context in which the word in question occurs, the reference must be held to be not to warehouses generally but to dock warehouses—warehouses used in connection with docks. And as to the effect of “headings” in Acts of Parliament (as distinguished from mere marginal notes), I have as yet heard nothing to displace or to qualify the doctrine laid down by the House of Lords in the case of Inglis v. Robertson & Baxter , 25 R (HL) 70 , and in the previous case of Brand v. Hammersmith Railway , L.R., E. & I. App. 203, and also by this Court in the case of Nelson v. M'Phee , October 17, 1889, 17 R. (J.C.) 1.
It is said that it has been held in England that the Compensation Act of 1897 may apply to a warehouse which has no connection with docks, and is not even ejusdem generis with dock warehouses, but so far as appears the effect to be given to the “heading” or “head line” of the 104th section of the Factory Act was not there raised or considered. Nor does it appear to have been pointed out that the word “&c.” used in the Act of 1895 had been, as I have said, dropped in the consolidating Act of 1901. In any case I cannot, speaking for myself, be a party to ignoring both the heading and the general tenor of the 104th section. Nor am I prepared upon any ground of policy to construe that section in a manner opposed, as it seems to me, to the
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It is not, however, necessary in this case to decide anything adverse to any previous decision or expression of judicial opinion. For supposing it to be held that the word “warehouse” falls to be read, without reference to heading or context and in its ordinary sense as used in common speech, I am still of the same opinion. I do not consider that the word “warehouse” in any proper or usual sense includes every store or depot in which persons public or private may store goods or materials which they are using from time to time or intend to use in the future. Farmers have such stores; owners of estates have them; public bodies have them; and it would, I think, be a very extreme conclusion that such stores or depots should be held as warehouses, and as such subject not only to the provisions of the Workmen's Compensation Act, but by consequence also to the whole provisions of the Factory and Workshop Act with respect to “inspection,” “fines in the case of death or injury,” and the other matters which I have mentioned. I consider that, taking the word “warehouse” in its widest sense as commonly used, it can only apply to premises wholly or mainly used for commercial purposes, and that it cannot therefore apply to the yard or depot in question.
I am therefore of opinion that the question of law stated by the Sheriff falls to be answered in the negative.
Lord Kincairney —This is a stated case under the Workmen's Compensation Act 1897. The respondent David M'Ewan was employed by the appellants the Magistrates of Perth to break stones, and while so engaged he suffered an injury to one of his eyes, and he now sues for compensation from his employers, and the Sheriff-Substitute has decided in his favour.
The appellants the Magistrates of Perth have raised only one question, and subject to that question they, as I understand, admit the respondent's right to compensation. But they maintain that he is not entitled to the benefit of the Act, because the place where the accident happened is not covered by its terms.
The place is distinctly described by the Sheriff-Substitute. It was, he says, a yard, 100 yards long by 15 wide. It was used for storage of materials employed in making and repairing drains and roads. It contained also the bings of stone which the respondent and other men were breaking. At the side of it was a large shed in which implements were kept, and which was used for men to work in wet weather. “No mechanical power was used in the yard.” The materials were used in the repair of roads, and in carrying out works ordered by the Corporation, “and which private individuals had elected to leave it to the Corporation to do and had to pay for, and also to a small extent in doing work by contract for private individuals.”
The Sheriff-Substitute has expressed the opinion “that ‘factory’ covers every warehouse,” and that “warehouse covers a place of deposit of goods as well as a place of sale, and therefore covered this yard.” His meaning is that the place which he describes and calls a place of deposit of goods is a warehouse in the sense of this Act, and that if it is a warehouse it is a factory. I think the latter proposition was not disputed, and the Sheriff expresses the question of law submitted thus—“Was this yard a warehouse, and therefore a factory within the meaning of the Act?”
The question depends primarily on the first part of the seventh section of the Act, under which section the respondent must bring his case, and which provides (section 7, sub-section 1) that “this Act shall apply only to employment by the undertakers as hereinafter defined on or in or about a railway, factory, mine, quarry, or engineering work.” The rest of the sub-section clearly does not apply, and it is unnecessary to quote it. The question is, whether this yard was a railway, factory, mine, quarry, or engineering work, and it would be absurd to suggest that the yard should be held to be described or covered by the words or terms railway, mine, quarry, or engineering work, the yard being certainly none of these. The only question is, whether it can be said to be a “factory” in the sense of the Act—that is a term which depends for its meaning almost entirely on the Workmen's Compensation Act and on the Factory Acts. Now, the 2nd sub-section of section 7 seems to profess to interpret the word “factory.” It does not, strictly speaking, do so, but refers for the interpretation to other statutes, viz., the Factory Acts, and it provides that “factory” has the same meaning as in the Factory and Workshop Acts 1878 to 1891, and “also that it includes any dock, wharf, quay, warehouse, machinery or plant to which any provision of the Factory Acts is applied by the Factory and Workshops Act 1895.
This application seems made by section 23 of the Factory Act of 1895, which provided (but it is itself repealed) that certain sections and provisions of the Factory Acts enumerated “shall have effect as if” (in this action) “every work, wharf, quay, and warehouse were included in the word ‘factory’”. From which it follows undoubtedly that the term “factory” as used in the 7th section of the Workmen's Compensation Act includes a warehouse (that is the point of importance), for it does not signify to this case whether docks, wharfs, and quays should be factories, since it is certain that the yard in question cannot possibly be held to be either a dock or a wharf or quay. But it is said that it may be described as a warehouse, which is an unlikely but not an impossible interpretation, so that the matter seems to stand thus—The Act applies to factories, and a warehouse is a factory. Hence the Act applies to warehouses. Now that a warehouse is a factory is a result arrived at by an interpretation of the words of the Act, and there is no doubt about it. But that conclusion cannot avail the respondent unless he can go a step further and show that the yard in question is
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Now this latter is a question to the solution of which the Act gives very little assistance. The Act has not a very copious interpretation clause, but it does give interpretations of various terms. But there is no interpretation of the word warehouse, probably because it was thought that none was required, and that seems to indicate that the Legislature intended that the word should receive its ordinary and, so to speak, popular and colloquial meaning, and I think the question is whether the word warehouse used in its ordinary meaning, since it has no statutory meaning, can be properly applied to the yard as described in the stated case. It seems to me that cannot be done without a very strained and artificial interpretation, and I think that this case may be most simply solved by saying that no one would speak of this open yard, the chief purpose of which is to serve as a place of storage for materials and stones used in repairing the roads and drains of the town, as a warehouse, or as a place to any extent of the nature of a warehouse. The materials were not stored for sale but merely heaped together for sake of convenience. That was the use to which the yard was ordinarily put. As I read the case, none of the materials were sold, but it may be that some profit was made if the burgh with their materials performed the work which they had ordered to be done by others. But that was not the general use or purpose of the yard. It was not a house, and it was not used for the storage of wares, so that it is at least very difficult to see the propriety of calling it a warehouse.
If such a gathering of stones and road materials were held to be a warehouse, which I think in the ordinary sense it is not, it is difficult to see where such methods of interpretation would stop. Every stack-yard in the country would, for as strong or stronger reasons, be converted into a warehouse and a factory, and so, so far as I can see, would every heap of metal collected by a roadside to be broken and laid on the road. I think the Act has never been so interpreted, and that such an interpretation would be absurd.
I do not think that there are any special grounds derived from the terms of the Act which can be urged in favour of the view which the Sheriff-Substitute has taken. There are considerations the other way. It has been argued for the appellants that the term warehouse as used in the Act should be read with a restricted meaning, and as confined to such warehouses only as were contiguous to the sea, and were naturally collocated with docks, wharfs, and quays, and signified only such warehouses as are usually found at docks, and harbours, and ports—such, for example, as bonded warehouses, and that the Act would not apply to inland warehouses. This was argued on account of the manner in which the word is collocated with docks, wharfs, and quays throughout the Act, and also on account of the headings of the different sections of the Factory and Workshops Acts 1895 and 1901, particularly the headings of “Docks, &c.” in the Act of 1895 before section 23, and the heading of “Docks” being the fifth division of the Act of 1901. It was maintained that these headings, unlike the side headings, formed parts of the statute, and that they had the effect of limiting the meaning of the word warehouses to warehouses at or near a dock or quay, or at least to warehouses of the same kind as those usually found at docks and quays. Assuming that these headings in the Factories Act are to be read as parts of the statute, I do not differ from the conclusion derived from that argument in this case, but I confess I feel some doubt as to the legitimacy of the argument. I feel some hesitation in accepting the view that these headings could have the effect of striking out of the statute all warehouses which were not contiguous to the sea. My view of the case does not necessitate such a sweeping conclusion, and I reach the same result by what I conceive to be an easier route, and I would prefer to reserve my opinion on these questions. Further, it is settled in the English courts that contiguity to the sea is not essential to premises being designated as a warehouse, although apparently it may be a consideration which may bear on the question— Wilmott v. Paton , 1902, 1 K.B. 237; Green v. Britten , December 12, 1903, 1 K.B. 350.
Reference was made in the argument to the fact that this yard was uncovered. It seems to have been settled in England that premises might be a warehouse though uncovered; still I think that that is a circumstance which might add to the difficulty of holding such premises to be so when the word warehouse is used in its ordinary meaning.
I am for recalling the judgment of the Sheriff-Substitute and finding that the yard was not a warehouse or falling within the meaning of the Act.
Lord Young was absent.
The Court answered the question of law in the negative.
Counsel for the Defenders and Appellants— Guthrie, K.C.— Constable. Agents— Bonar, Hunter, & Johnstone, W.S.
Counsel for the Pursuer and Respondent— Chisholm, K.C.— R. D. Melville. Agents— Campbell Irons & Co., S.S.C.