Harpur v Nunn

CourtSupreme Court
Judgment Date30 March 1944
Date30 March 1944

Supreme Court.

Harpur v. Nunn.
JOSHUA L. NUNN (Trading as W. B. NUNN & CO.), Respondent and STEPHEN MAHONEY, Respondent (1)

Workmen's Compensation - Compensation - Sub-contracting - Claim brought against principal - Principal a maltster - Special coal used by him for malting imported in ships chartered by him - Stevedore employed by him to unload the ships - Applicant employed by stevedore - Injured while unloading coal - Whether the work of unloading coal was "work undertaken by the principal" - Workmen's Compensation Act, 1934 (No. 9 of 1934), s. 19,sub-s. 1.

Appeal by the respondent, Joshua L. Nunn (trading as W. B. Nunn & Co.), from an order of the Circuit Court

Judge (Judge Fawsitt) ordering him to pay compensation to the applicant, Patrick Harpur.

The facts have been summarised in the head note and are set out in the judgment of the Court.

Sect. 19, sub-s. 1, of the Workmen's Compensation Act, 1934, enacts:—

"Subject to the provisions of this section, where any person (in this section referred to as the principal) in the course of or for the purpose of his trade or business, contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of such work any compensation under this Act which he would have been liable to pay if such workman had been immediately employed by him."

A maltster, who required a special smokeless coal used for drying barley and malt, was accustomed to import such coal from time to time as required in vessels which were chartered by him for that purpose. He invariably contracted with a stevedore for the discharge of the coal on to the quay at a fixed price per ton. One of the men employed by the stevedore was injured while working at unloading one of the vessels and he instituted proceedings under the Workmen's Compensation Act, 1934, against the maltster, alleging that at the time of the accident he was directly employed under him.

The Circuit Court Judge held that the workman's employer was the stevedore, not the maltster; that the work which the stevedore had contracted to do was "work undertaken" by the maltster, and accordingly that the maltster was liable, by virtue of s. 19 of the said Act, to pay the compensation awarded to the workman. He also held that the maltster was entitled to be indemnified against his liability to the workman by the stevedore, and he directed that the stevedore should pay to the maltster the sums payable by the latter under the award.

On appeal by the maltster to the Supreme Court it was admitted on behalf of the workman that his employer was the stevedore; it was admitted by the maltster that he had contracted with the stevedore, but he contended that the work which the stevedore had contracted to do was not work "undertaken"by him (the maltster) and therefore that s. 19 did not apply.

Held by the Supreme Court that the operation of sub-s. 1 of s. 19 of the Act was not limited to cases of sub-contracting; that the words "work undertaken by the principal" mean work of the class which it is the business of the principal to undertake; that there was no evidence to support the Circuit Court Judge's finding that the unloading of the vessel was work of the class which it was the maltster's business to undertake, and accordingly that the appeal must be allowed and the Circuit Court Judge's order set aside.

Walsh v. Hayes, 43 I. L. T. R. 114, dissented from; Hayes v. Thompson & Co., 6 B. W. C. C. 130, Hockley v. West London Timber & Joinery Co., [1914] 3 K. B. 1013, and Bobbey v. Crosbie, 8 B. W. C. C. 236, applied.

Cur. adv. vult.

Murnaghan J. :—

The judgment of the Chief Justice which I am about to read has been written by him and read over by the other members of the Court (including myself) and approved by them. The judgment is as follows:—

This is an appeal by Joshua Nunn, trading as W. B. Nunn and Company, from the order made in this matter by the Judge of the Circuit Court of the Eastern Circuit on the 13th July, 1943, awarding compensation under the Workmen's Compensation Act, 1934, to Patrick Harpur in respect of personal injuries by accident caused to him on the 12th April, 1943, while in the employment of the appellant.

The grounds stated in the notice of appeal are:—

(1) that the learned Judge misdirected himself and was wrong in law in applying s. 19 of that Act to these proceedings, and holding that the appellant was liable thereunder to pay compensation to Patrick Harpur;

(2) that there is no evidence to support the said finding; and

(3) that the said finding is against the evidence and the weight of evidence.

The accident happened on the motor-vessel "Goldfinder,"then lying alongside the Custom House Quay, Wexford, and having on board a cargo of coal consigned to W. B. Nunn & Co. Patrick Harpur was one...

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