in England and Ireland, such members | tained in § 7 of the act of 1897 (and of the workman's family specified in the which is also used in § 4, subsec. 4, in the fatal accidents act 1846, as were wholly act of 1906, with reference to compensaor in part dependent upon the earnings tion recoverable by servants of contracof the workman at the time of his death; tors), has been the subject of considerand (b) in Scotland, such of the per- able controversy. The words "on" and sons entitled according to the law of "in" are not difficult or ambiguous, but Scotland to sue the employer for dam- the word "about" adds an element which ages or solatium in respect of the death has caused a considerable difference of of the workman, as were wholly or in part dependent upon the earnings of the opinion. workman at the time of his death. (3) A workman employed in a factory which is a shipbuilding yard shall not be excluded from this act by reason only that the accident arose outside the yard in the course of his work upon a vessel in any dock, river, or tidal water near the yard. b Scope and effect of these provisions ir, general. From the provisions above set out it will be seen that the right of the servant to recover compensation under the act was made to depend, in the majority of instances, upon two distinct tests, viz: (1) physical contiguity with respect to the locality in which one or other of certain specified classes of business are carried on; and (2) the character of the operations in which the servant is engaged. In any case in which the former of these tests is controlling, the essential subject of inquiry is the import of the phrase "on or in or about." The applicability of the latter test is a question which hinges upon the connotation of the various terms used to designate the various kinds of business which fall within the purview of the act. It certainly enlarges the application of the act,87 and it has been spoken of as an "elastic word." 88 The phrase as a whole involves some idea of physical proximity,89 and has reference to an area.90 The limitation of the area is the point at issue in practically all of the cases in which the question has arisen. Although the same meaning attaches to the phrase "on or in or about," used in connection with a factory, or with any of the other terms used in the statute,91 it has nevertheless been deemed wise to group the cases construing this phrase according as they deal with a railroad, factory, or other place mentioned in the section. 2. On, in or about a "railroad," that no part of the premises of a rail- c. Meaning of the phrase "on or in or Scotland, a servant having been allowed about." 1. In general. The phrase "on or in or about," con87 In Powell v. Brown [1899] 1 Q. B. (Eng.) 157, 68 L. J. Q. B. N. S. 151, 47 Week. Rep. 145, 79 L. T. N. S. 631, 15 Times L. R. 65, it was held that the word "about" must be construed as enlarging the application of the statute over what it would have been had only the words "on or in" been used, and may embrace work done in close propinquity to the factory. 88 Fenn v. Miller [1900] 1 Q. B. (Eng.) 788, 69 L. J. Q. B. N. S. 439, 82 L. T. N. S. 284, 16 Times L. R. 265, 2 W. C. C. 55, 64 J. P. 356, 48 Week. Rep. 369. 89 Rogers v. Cardiff Corp. [1905] 2 K. B. (Eng.) 832, 75 L. J. K. B. N. S. 22, 93 L. T. N. S. 683, 22 Times L. R. 9, 8 W. C. C. 51, 54 Week. Rep. 35, 70 J. P. 9, 4 L. G. R. 1. to recover where the accident occurred in a city within the area of a yard where the horses used by a railroad company for collecting and delivering 90 Atkinson V. Lumb [1903] 1 K. B. (Eng.) 861, 72 L. J. K. B. N. S. 460, 88 L. T. N. S. 789, 19 Times L. R. 412, 5 W. C. C. 106, 67 J. P. 414, 51 Week. Rep. 516. 91 Pattison v. White (1904) 6 W. C. C. (Eng.) 61, 20 Times L. R. 775. In Back v. Dick [1906] A. C. (Eng.) 325, 8 W. C. C. 40, Lord Robertson said: "It was not in the end disputed at the bar that this is so in the case of a factory, and the other things mentioned side by side with factories and 'engineering work,' to which, in common with 'engineering work,' the prepositions of locality 'in, on, or about' are made to apply." 92 This doctrine was assumed to involve the consequence that no recovery could be had under the compensation act where goods were shod,93 and where the claimant was a carter whose business it was to deliver to consignees goods received at one of the stations of his employers, a railway company.94 Of these two theories, the latter would seem to be the proper one. The English decision ignores the plain and literal meaning of the words "on or in or about," and fastens on them a restricted significance which is not justified by any of the language employed in the act itself. An injury to a carter engaged in carting goods from a station, received when his horse bolted just outside the station, and dashed into a shop 315 yards away, did not occur "in or on or about" a railroad.95 Nor can any compensation be recovered under the act where the conductor of a freight train met with an accident about three quarters of a mile from the main line of a railway from which a private siding belonging to a trading company diverged.96 the accident occurred in a railway refreshment room, when the only entrance for the public was from the station platform. Milner v. Great Northern R. Co. [1900] 1 Q. B. (Eng.) 795, 82 L. T. N. S. 187, 69 L. J. Q. B. N. S. 427, 64 J. P. 291, 48 Week. Rep. 387, 16 Times L. R. 249. 93 Caledonian R. Co. v. Breslin (1900) 2 Sc. Sess. Cas. 5th series, 1158, 37 Scot. L. R. 873, 8 Scot. L. T. 125. 94 Devine v. Caledonian R. Co. (1899) 1 Sc. Sess. Cas. 5th series, 1105, 36 Scot. L. R. 877, 7 Scot. L. T. 99. 95 Bathgate v. Caledonian R. Co. (1901) 4 Sc. Sess. Cas. 5th series, 313, 39 Scot. L. R. 246, 9 Scot. L. T. 334. 96 Brodie v. North British R. Co. (1900) 3 Sc. Sess. Cas. 5th series, 75, 38 Scot. L. R. 38, 8 Scot. L. T. 248. With respect to this case it should be observed that the siding itself was not a "railway" for the purposes of the act, as it was not one to which the regulation of railways act 1873, referred to in § 7, subsec. 2, was applicable. 97 Recovery has been allowed where an employee was injured while loading a cart belonging to the owners of the factory, standing in a street close to the entrance to the factory yard, in a place where it was usually loaded. Powell v. Brown [1899] 1 Q. B. (Eng.) 157, 68 L. J. Q. B. N. S. 151, 79 L. T. N. S. 631, 47 Week. Rep. 145, 15 Times L. R. 65. And where a workman employed as a quay laborer at a wharf was injured on the street outside the wharf shed, while engaged in removing girders to the side of a steamer. Strain v. Sloan (1901) 3 Sc. Sess. Cas. 5th series, 663, 38 Scot. L. R. 475, 8 Scot. L. T. 498. In a case where a railway carter was injured while taking goods from a factory to a dray, in which they were to be conveyed to the station of a railway, it was 3. a "factory." in or about" a factory, although he is on A workman may be employed "on or the street adjoining the factory, if the work he is performing is a part of the factory business.97 And also where he was employed in a building adjoining the tance from it.98 But where a workman factory proper, although at some disengaged to cart material to or from a factory is injured while upon the road and at some distance from the factory, it has been held in several cases that he is not injured "in or on or about" the factory.99 And an employee in a factory, whose duty in part it was to take goods from the factory to a railroad station, is not employed "in or on or about" the factory while at the railroad station. Under the Nova Scotia act, the term "plant" includes teams which are used for the delivery of the output of the factory.2 An employee at work on a gas main held that the owners of the factory were "undertakers," and that the accident occurred while the carter was employed "in or about" the factory. McGovern v. Cooper (1901) 4 Sc. Sess. Cas. 5th series 249, 39 Scot. L. R. 102, 9 Scot. L. T. 270. 98 As where a car driver of a cable railway company was injured, while oiling his car in the car shed, 374 feet distant from a machine room adjoining the shed in which grips and other parts of the cars were repaired. Mooney v. Edinburgh & D. Tramways Co. (1901) 4 Sc. Sess. Cas. 5th series, 390, 38 Scot. L. R. 260, 9 Scot. L. T. 366. 99 Recovery has been disallowed where a carter, employed by the occupiers of a factory to cart goods to and from the factory, was injured when he was about a mile and a half distant from the factory. Lowth v. Ibbotson [1899] 1 Q. B. (Eng.) 1003, 80 L. T. N. S. 341, 68 L. J. Q. B. N. S. 465, 47 Week. Rep. 506, 15 Times L. R. 264. And where a cart used to carry timber from a factory upset about 2 miles away from the factory, and injured an employee. Bell v. Whitton (1899) 1 Sc. Sess. Cas. 5th series, 942, 36 Scot. L. R. 754, 7 Scot. L. T. 59. And where a laborer, whose duty it was to fetch water in a cart from a brook at some distance along the main road, for the use of a factory, was injured while returning with the cart, at a spot about 110 to 160 yards distant from the engine and mortar-mill, owing to the horse running away. Fenn v. Miller [1900] 1 Q. B. (Eng.) 788, 82 L. T. N. S. 284, 69 L. J. Q. B. N. S. 439, 64 J. P 356, 48 Week. Rep. 369, 16 Times L. R. 265. 1 Spencer v. Harrison (1908; C. C.) 1 B. W. C. C. (Eng.) 76. 2 In O'Toole V. Brandram-Henderson (1915) 48 N. S. 293, it was held that the dependents of a teamster who was killed while a quarter of a mile from the gas works | about" a mine where he, although not in is not at work "on or in or about a fac- the mine, is doing work connected theretory."3 with and only a short distance away.7 In one case it was expressly held that an accident did not occur in or on or about a mine, because it occurred three fourths of a mile from the mine. In another case, a distance of 400 yards was sufficient to take the workman out of the protection of the statute, where a portion of the property occupying such space did not belong to the mine own No compensation is recoverable where the workman was injured in the employment of a firm of ship repairers, while repairing a ship in a public dock at a distance from his employer's factory of 550 yards in a direct line, and about a mile by road.* A workman at work in a shed situated about half a mile from the defenders' works, and having no direct connection therewith by rail, and no steam, water, or other mechanical power being used therein, is not employed "on or in or about" the defenders' factory, and is not entitled to compensation for injuries while so engaged.5 The expression "employment by the undertakers on or in or about a . factory" has been held to mean employment by the undertakers on, in, or about their own factory.6 4. -a "mine." A workman is employed "in or on or drawing the product of a factory at some distance from the factory are entitled to compensation, since the team and truck which he was driving must be considered as a part of the employer's plant, and the fact that he was, at the time of the in- | jury, at a considerable distance away from the factory proper, does not deprive such dependents of the right to compensation. 3 Spacey v. Dowlais Gas & Coke Co. [1905] 2 K. B. (Eng.) 879, 75 L. J. K. B. N. S. 5, 93 L. T. N. S. 685, 22 Times L. R. 29, 54 Week. Rep. 138. 4 Barclay v. M'Kinnon (1901) 3 Sc. Sess. Cas. 5th series, 436, 38 Scot. L. R. 321, 8 Scot. L. T. 404, appeal dismissed on question of jurisdiction in [1901] A. C. (Eng.) 269, 85 L. T. N. S. 286, 4 W. C. C. 149. 5 Ferguson v. Barclay Sons & Coy (1902) 5 Sc. Sess. Cas. 5th series, 105, 40 Scot. L. R. 58, 10 Scot. L. T. 350. 6 A workman, therefore, who is sent by his employers on their business to the factory of a third person, and is there injured by accident, is not entitled to compensation under the act. Francis v. Turner Bros. [1900] 1 Q. B. (Eng.) 478, 69 L. J. Q. B. N. S. 182, 81 L. T. N. S. 770, 16 Times L. R. 105, 2 W. C. C. 61, 64 J. P. 53, 48 Week. Rep. 228; Wrigley v. Whittaker [1902] A. C. (Eng.) 299, 71 L. J. K. B. N. S. 600, 66 J. P. 420, 50 Week. Rep. 656, 86 L. T. N. S. 775, 18 Times L. R. 559. 7 Recovery has been allowed where a servant was injured while engaged in blasting boulders, for the purpose of forming a road to be used in the operation of a mine which was being opened a few yards away. Ellison v. Longden (1901) 18 Times L. R. (Eng.) 48. And where a brakeman in the service of er.9 Where an injury was received by a workman who, after the conclusion of his day's work, was walking home along a private railway belonging to his employer, and was run over at a point about 230 yards from the place where he was working, compensation was denied.10 5. "engineering work." The phrase "engineering work" indicates locality the same as the other words used in the same connection,―raila colliery company was injured while coupling cars on a siding belonging to the company. Monaghan V. United Collieries (1900) 3 Sc. Sess. Cas. 5th series, 149, 38 Scot. L. R. 92, 8 Scot. L. T. 261. An employee engaged in screening tailings in a tailings area which was located about three-quarters of a mile from the mining lease is "employed in or about a mine." Taylor v. The Cecil Syndicate (1906) Queensl. St. Rep. 324. A drum-house and sidings on a private line of railroad which connects the mine with a main line of railroad is on or in or about a "mine," although located at a distance of 800 yards from the mine. Anderson v. Lochgelly Iron & Coal Co. (1904) 7 Sc. Sess. Cas. 5th series (Scot.) 187. 8 Recovery has been disallowed where an engine driver in the employ of colliery owners was killed about of a mile from the pit mouth of the colliery, while his engine was drawing a coal train to the depot where the coal was stored. Turnbull v. Lambton Collieries Co. (1900) 82 L. T. N. S. (Eng.) 589, 16 Times L. R. 369, 64 J. P. 404. 9 A workman employed as a carter at a coal mine, who sustained fatal injuries. while transferring timber to a colliery cart from a railway wagon at a railway siding belonging to and in the occupation of a railway company, at a distance of about 400 yards from the pit,-the distance being made up of (1) railway siding (123 yards), (2) the breadth of a public road, and (3) a private cart road leading to the pit (259yards) was not injured in the course of employment "on or in or about a mine." Coylton Coal Co. v. Davidson (1905) 7 Sc. Sess. Cas. 5th series (Scot.) 727. 10 Caton v. Summerlee & M. Iron & Coali Tod. Buildings being constructed or repaired or demolished by means of a scaffolding. way, factory, mine, and quarry. come within the statute, the workman must be, at the time of the accident, "on or in or about" the locality of the engineering work.12 A piece of vacant land adjoining a street, which was being used for preparing materials for constructing a street, is "on or in or about" the street.13 The driver of a tower wagon used to repair a tramway is on, in, or about engineering work while driving from a place where repairs had been made to another place where repairs were also wanted.14 6. —"premises on which principal has undertaken to execute the work." A workman employed by a subcontractor to cart away rubbish from where a street is being paved is not injured "on or in or about the premises on which the principal had undertaken to execute the work," where he falls from his cart 2 miles from the scene of the paving operation.15 Co. (1902) 4 Sc. Sess. Cas. 5th series, 989, 39 Scot. L. R. 762, 10 Scot. L. T. 204. 11 It is a thing which embraces a certain physical area. Atkinson v. Lumb [1903] 1 K. B. (Eng.) 861, 72 L. J. K. B. N. S. 460, 88 L. T. N. S. 789, 19 Times L. R. 412, 5 W. C. C. 108, 67 J. P. 414, 51 Week. Rep. 516. It has no structural boundary, but it has geographical boundary. Back V. Dick [1906] A. C. (Eng.) 325, 75 L. J. K. B. N. S. 569, 94 L. T. N. S. 802, 8 W. C. C. 40, 22 Times L. R. 548. 12 No recovery is allowable in respect of an accident which occurred to a workman while he was engaged in unloading from a hopper, amount 1 miles out at sea, mud dredged from a harbor, notwithstanding that he was at times employed on the dredger. Chambers v. Whitehaven Harbour Comrs. [1899] 2 Q. B. (Eng.) 132, 68 L. J. Q. B. N. S. 740, 80 L. T. N. S. 586, 47 Week. Rep. 533, 15 Times L. R. 341, 1 W. C. C. 47. A workman employed by a subcontractor to cart sand for the construction of a railway, who was injured at a point 2 miles from the works, is not injured "on or in or about" engineering work. Pattison v. White (1904) 20 Times L. R. (Eng.) 775, 6 W. C. C. 61. No compensation can be recovered for an injury received in unloading and stacking rails in a yard which was 700 yards distant from the place where the old rails were being torn up and new ones laid. Back v. Dick (Eng.) supra. A workman engaged in the erection of gas engines for generating electricity for, among other purposes, a shipbuilding yard, at a distance of 150 yards from where docks were being constructed, was not engaged on, 1. What is a "building." A platform built to carry and support a steam train used in the erection of a permanent structure is a "building" within the act.16 The mere fact that a building is more than 30 feet in height and that more than 20 persons other than domestic servants are employed therein, does not make such a building a factory within the compensation act.17 2. Height of building. In an arbitration before the county court under this act, the question whether a building "exceeds 30 feet in height," within the meaning of this section, is a question of fact to be determined by the county court judge, having regard to the particular circumstances existing at the time of the accident to the workman.18 The conditions indicated by this phrase in, or about an engineering work. Rimmer v. Premier Gas Engine Co. (1907) 97 L. T. N. S. (Eng.) 226, 23 Times L. R. 610, 9 W. C. C. 56. Sir Gorell Barnes, P., said: "In my opinion it is impossible to hold that a place which was used to supply electrical energy for a multitude of purposes can be held to be part of a dock because one of those purposes was the supply of power for the dock." 13 Lord v. Turner (1902; C. C.) 114 L. T. Jo. (Eng.) 133, 5 W. C. C. 87. 14 Rogers v. Cardiff Corp. [1905] 2 K. B. (Eng.) 832, 75 L. J. K. B. N. S. 22, 93 L. T. N. S. 623, 22 Times L. R. 9, 8 W. C. C. 51, 54 Week. Rep. 35, 70 J. P. 9, 4 L. G. R. 1. 15 Andrews v. Andrews [1908] 2 K. B. (Eng.) 567, 77 L. J. K. B. N. S. 974, 99 L. T. N. S. 214, 24 Times L. R. 709. This case arose under § 4, subsec. 4, of the act of 1906. 16 Aylward v. Matthews [1905] 1 K. B. (Eng.) 343, 74 L. J. K. B. N. S. 336, 53 Week. Rep. 518, 88 L. T. N. S. 671, 19 Times L. R. 196. 17 Dyer v. Swift Cycle Co. [1904] 2 K. B. (Eng.) 36, 73 L. J. K. B. N. S. 566, 68 J. P. 394, 52 Week. Rep. 483, 90 L. T. N. S. 613, 20 Times L. R. 429 (building used for bicycle salesroom; no mechanical power of any kind used). 18 McGrath v. Neill [1902] 1 K. B. (Eng.) 211, 71 L. J. K. B. N. S. 58, 66 J. P. 180, 50 Week. Rep. 162, 18 Times L. R. 36, approving a finding that the building was over 30 feet in height, where the judge took the lowest part of the footings as the level from which to estimate the height, and there was no evidence to show that, at the time, anything more than the footings had been covered in. are satisfied where the height of the building, without including the foundation, is more than 30 feet.19 The distance from the ground to the top of the roof, and not the distance from the ground to the top of the walls, is to be considered in determining whether a building is more than 30 feet high, within the act.20 3. "Being constructed or repaired." The height of the building is immaterial where it is one "in which machinery Workmen on an addition to a build- driven by steam, water, or other mechaning which is over 30 feet high were with- ical power is being used for the purpose in the protection of the act, although the of the construction, repair, or demolition addition was not then of that height.2 21 thereof."25 So a finding that the employment of the workman was upon a building exceeding 30 feet in height, being demolished, is justified where the evidence shows that, although the building had been reduced to less than 30 feet, the party wall between the building and the adjoining one remained intact at the time of the accident, and was more than 30 feet in height.2 But a workman engaged in demolishing a building less than 30 feet in height is not within the statute, although it adjoins and is connected with 22 A depression or sunken bed 6 feet deep in which a condenser is to stand, connected by pipes to a boiler house, the chimney to which is 70 feet high, is a part of a building over 30 feet in height. McGregor v. Wright (1901; C. C.) 3 W. C. C. (Eng.) 121. In Silvester v. Cude (1899) 15 Times L. R. (Eng.) 434, 1 W. C. C. 120, the action of the county court judge in refusing to permit the respondent to offer evidence to show that the building was not 30 feet in height was sustained upon the ground that he had failed to answer. 19 Halstead v. Thomson (1901) 3 Sc. Sess. Cas. 5th series, 668, 38 Scot. L. R. 473. 20 Hoddinott v. Newton [1899] 1 Q. B. (Eng.) 1018, 68 L. J. Q. B. N. S. 495, 47 Week. Rep. 499, 80 L. T. N. S. 558, 15 Times L. R. 299, affirmed as to this point in [1901] A. C. 49, 70 L. J. Q. B. N. S. 150, 49 Week. Rep. 380, 84 L. T. N. S. 1, 17 Times L. R. 134. 21 Hartley v. Quick [1905] 1 K. B. (Eng.) 359, 74 L. J. K. B. N. S. 257, 92 L. T. N. S. 191, 21 Times L. R. 207. 22 Knight v. Cubitt [1902] 1 K. B. (Eng.) 31, 71 L. J. K. B. N. S. 65, 50 Week. Rep. 113, 18 Times L. R. 26, 66 J. P. 52, 85 L. T. N. S. 526. 23 Internal communication between a building over 30 feet high and an adjoining building less than that height, coupled with the fact that the same business is carried on in both buildings, is not evidence to justify a finding that the lower building is a part of the higher, and that a workman injured while engaged in demolishing the lower building is employed on the demolition of a building exceeding 30 feet in height. Rixsom v. Pritchard [1900] | 1 Q. B. (Eng.) 800, 82 L. T. N. S. 186, 69 These words do not confine the employment to the construction or repair of the building as a whole. "Construction" here includes a case where the building has been constructed and believed to be complete, but, having been afterwards thought to be faulty and unstable, is being strengthened by the addition of stays or supports.26 The word "repair" includes painting, whitewashing, and dubbing the ceiling L. J. Q. B. N. S. 494, 16 Times L. R. 250. 24 An accident to a workman employed on, in, or about a building in the course of construction, which does not at the time exceed 30 feet in height, although it is intended that when completed it shall exceed such height, is not within the act. Billings v. Halloway [1899] 1 Q. B. (Eng.) 70, 68 L. J. Q. B. N. S. 16, 79 L. T. N. S. 396, 47 Week. Rep. 105, 15 Times L. R. 53. 25 Mellor v. Tomkinson [1899] 1 Q. B. (Eng.) 374, 68 L. J. Q. B. N. S. 214, 79 L. T. N. S. 715, 63 J. P. 55, 47 Week. Rep. 240, 15 Times L. R. 142; Murnin v. Calderwood (1899) 1 Sc. Sess. Cas. 5th series, 862, 36 Scot. L. R. 648, 7 Scot. L. T. 16. 26 In Hoddinott v. Newton [1901] A. C. (Eng.) 49, reversing [1899] 1 Q. B. 1018, 68 L. J. Q. B. N. S. 495, 47 Week. Rep. 499, 80 L. T. N. S. 558, 15 Times L. R. 299, Lord Macnaghten said: "Construction, repair, demolition,--these three operations cover, I think, every varying phase in the life of a building, from its beginning to its end." Lord Morris said: "In my opinion, when you realize what the entity called the building is, all operations on it must be either constructing, or repairing, or demolishing, alteration in its construction is, in my opinion, constructing. ion, whether completed or not completed, if work of the nature of construction goes on, that is constructing, and if work in the nature of repair, that is repairing; and there is no room for any third operation of so-called alteration as distinct from constructing or repairing." Lords Shand and Lindley dissented from the judgment of the majority. In my opin |