facts is, by the Act, final. The case discloses evidence, so far, on which I think he could find both those facts in favour of the appellant, but in fairness, seeing that his mind was not sharply directed to these points, he might desire to give both parties an opportunity of supplementing their case by further evidence, in which case he may do so. A considerable sum is involved, as the maximum compensation for a total incapacity is claimed, which may amount to £400. It is therefore desirable that the evidence should be thorough and complete, and especially as to the extent of the incapacity, which is not as clear as I think it might be and could be.

66

66

The Police Magistrate must find whether the work in question was hazardous," and whether it was an investment with a view to profit." As to the latter point, so far as giving a legal construction to the phrase is concerned, I should say that laying out money in a building, either to use the building for his business or to let it to others, is an investment with a view, certainly, to gain, therefore to profit.

The answer to the question is "No."

The appeal is allowed, and the decision of the Police Magistrate reversed. The case will be remitted to him for determination in accordance with this opinion, and the respondent must pay the appellant's costs.

From this judgment Mellick appealed to the Full Court, asking that it be set aside on the grounds (a) That s. 3, subsec. 3 of The Workers' Compensation Act of 1905 did not apply to the facts of the case; and (b) that in ordering the respondent Mellick to pay the costs of the appeal, the learned Judge did not exercise his discretion on the point whether the respondent should pay costs for the neglect of Newman's solicitor in failing to direct the attention of the Police Magistrate to the subsection of the Act bearing on the question.

Macleod, for the appellant: Under The Workers' Compensation Act of 1905 the employer is liable quite apart from default or negligence. Its provisions make an innovation, and impose new rights and obligations, and should be strictly construed. Cooper and Crane v. Wright (1). The application of the Act (1) [1902] A.C. 302, at p. 310.

F. C. NEWMAN V. MELLICK.

Chubb J.

F. C.

NEWMAN V.
MELLICK.
Chubb J.

extends only to the classes of employment mentioned in s. 3. In the New Zealand Act building work is placed in the section dealing with hazardous work, but the Queensland Legislature has classed it under subsec. 1 with industrial, commercial, and manufacturing work (1), and for the reason that it was not considered hazardous. Under our Act an employer is only liable in the event of a workman being injured while engaged in building work, if that building work is directly part of the employer's trade or business, or a process in that business. If the building work is undertaken with a view to profit or as a speculation outside the employer's business, he is not liable. Cf. s. 10, which supports this construction. Subsec. 3 is intended to exclude the class of employment specified in subsec. 1. Blair on Worker's Compensation, pp. 23, 25-29-30, Morris v. Williams (2), Whiting v. Gillies (3). The worker in this case was not engaged on hazardous work under s. 3, subsec. 3. The chance of risk was not all against him. Crabbe's English Synonyms, Ex parte Salaman (4), In re Heyn (5), Bunning v. Omundsen (6). The word "hazardous" in s. 3, subsec. 3, must be read ejusdem "in generis with the preceding words. R. v. Edmundson (7), R. v. Payne (8), Wright v. Dunedin Drainage Board (9), Skinner & Co. v. Shew & Co. (10). Even if the work is hazardous, it is "carried on ; it is only an individual and isolated case. Stroud's Judicial Dictionary, p. 263, Smith v. Anderson (11), In re Mutton (12), In re Griffin (13). And it is not a case where profit results from the building work. The contemplated profit is in the use of the completed structure for purposes of trade. The words in s. 3, subsec. 3, with a view to profit," mean for the

not

66

(1) 5 Edw. VII., No. 36, s. 3, so far as is material, is as follows: This Act shall apply only to employment by the employer on, in, or about (1) any industrial, commercial, manufac turing, or building work carried on by or on behalf of the employer as part of his trade or business; or (2) any agricultural, horticultural, or pastoral work carried on by or on behalf of the employer as part of his trade or business; or (3) any mining, quarrying, engineering, or hazardous work carried on by or on behalf of the employer as part of his trade or busi

(2) 1901, 3 D.C.A (N.Z.) 78.
(3) 1903, 5 D.C A. (N.Z.) 27.
(4) 1885, 14 Q.B.D. 936.
(5) 1867, L.R 2 Ch. 650.

(6) 1902, 1 D. C. A. (N.Z.) 24; 4 Gaz. L.R. (N.Z.) 258.

(7) 1859, 2 El. & El. 77 at p. 83.
(8) 1866, 1 C. C.R. 27.

(9) 1906, 8 Gaz. L.R. (N.Z.) 574.
(10) [1893] 1 Ch. 413.
(11) 1880, 15 Ch.D. 247.
(12) 1887, 19 Q.B.D. 102.
(13) 1890, 60 L.J. Q.B. 235.

purposes of direct gain. Stroud's Judicial Dictionary, Vol. III., p. 2189, Southerby v. Auckland Hospital Board (1), Nash v. Hollinshead (2), Curtis v. Shinner (3), Smith v. Anderson (4), Wigfield v. Potter (5), Caledonian Railway Co. v. Paterson (6). On the question of costs, the learned Judge merely followed a rule, but did not exercise any discretion.

Lilley, for the respondent: The case falls within s. 3, subsec. I. In erecting this building, even though the only one he might ever erect, the employer was carrying on а business, and more particularly SO as he intended to use that building in his ordinary trade. The Act should be given a liberal interpretation and in favour of the worker. Ruegg on Employers' Liability, 7th Ed., pp. 91 and 93, Carter v. Clarke (7), Knight v. Cubitt (8), Reid v. Anchor Line (9), Griffin v. Houlder Line, Limited (10), Wicks v. Dowell & Co. (11), Challis v. London and South-Western Railway Co. (12). In any event, the case clearly falls within s. 3, subsec. 3. It is hazardous work carried "Carried on on as part of the employer's business. refers to work, and in this case work was being carried on at the time when the accident happened. The appellant's argument is based on Nash v. Hollinshead (2) and on Curtis v. Shinner (3), but those cases were decided on a section very differently worded, and afford no guide.

Macleod, in reply.

REAL J. The appellant in this case was erecting a building by day labour on his own land. The respondent Newman was one of his workmen, and, whilst working on the building, fell from a scaffolding and was injured. He claimed to be entitled, under the provisions of The Workers' Compensation Act of 1905, to receive compensation from the employer. The employer set up as defences (1) That the employment was not an employment to which the Act applied; (2) that the injury was not caused by an accident arising out of and in the course of his employment ;

(1) 1902, 5 Gaz., L R. (N.Z.) 142.

(2) [1901] 1 K.B. 700.

(3) 1906, 95 L T. 31.

(4) 1880, 15 Ch D. 247.

(5) 1882, 45 L.T. 612.

(6) 1898, 1 F. 5th Series (C.J.) 24.

(7) 1898, 14 T.L.R. 172.

(8) [1902] 1 K. B. 31

(9) 1903, 5 Fraser, 5th Series, 435.
(10) [1904] 1 K.B. 510.

(11) [1905] 2 K.B. 225.

(12) [1905] 2 K.B. 154.

F. C.

NEWMAN V.
MELLICK.

Chubb J.

Real J.

.F. C.

NEWMAN U.
MELLICK.
Real J.

and (3) that the injury was attributable to the serious and wilful misconduct of the applicant. The matter was heard before the Police Magistrate at Geraldton, who found that the accident did not happen in any employment which was part of the employer's trade or business. That seems to have been the sole question to which the parties directed their attention when before the Police Magistrate, and he having so found, without finding any further fact, gave judgment as follows:-" Application dismissed on the ground that the employment is not one to which The Workers' Compensation Act of 1905 applies." From that decision the workman appealed, and the matter came before Mr. Justice Chubb. He, though agreeing with the Police Magistrate as to the fact found by him, on an examination of the evidence came to the conclusion that the finding did not determine the case and entitle the employer to have the application dismissed, holding that there was evidence which made it the duty of the Magistrate, before dismissing the application, to enquire whether or not the case came within subsec. 3 of s. 3-that is to say, was the work hazardous and carried on as an investment with a view to profitthe only point decided by the Magistrate being that the work was not carried on by the employer as part of his trade or business, a matter arising under subsec. 1. Subsec. 3 provides that the work may be "any mining, quarrying, engineering, or hazardous work carried on by or on behalf of the employer as part of his trade or business or as an investment with a view to profit." The employer was a draper carrying on business at Geraldton, and had been continuously so carrying on for the previous five years, and during that time had not been engaged in any other business, trade, or occupation. Shortly before the accident, he purchased an allotment of land, and commenced to erect a building thereon. There was evidence that, when erected, he intended to carry on business therein as a draper, but there was no evidence that he ever erected any other building or intended to erect any other building. On behalf of the worker, it was contended before the Magistrate, before Mr. Justice Chubb, and before this Court, that the mere fact of erecting a building in which the employer intended to carry on his business as a draper was conclusive that the work came within the provisions of s. 1,

was

subsec. 3, as building work carried on as part of his trade or
business. I cannot agree with that proposition. I agree both
with the finding of the Magistrate and with the view taken by
Mr. Justice Chubb. To hold otherwise would, it seems to me,
render idle the last qualifying clause in subsec. 1-" on behalf
of the employer as part of his trade or business." Subsec. 1
includes only such work as is carried on as part of the trade or
business of the employer. If everything a man did was, by
the mere fact of his doing it, part of his trade or business, the
addition of those words would be idle, and therefore, as I have
already pointed out, I am of opinion that the mere fact that an
employer carried on building work is not conclusive that building
work was part of his trade or business. Mr. Justice Chubb ordered
a new trial, on the ground that the Magistrate did not direct
his attention to the question of whether this work
"hazardous," or whether it was "an investment "by the employer
with a view to profit." It has been contended before us that
the word 66
building being inserted in subsec. 1, and not
inserted in subsec. 3, took building work out of the category
of the work referred to in subsec. 3. It appears to me that
that contention cannot be sustained. Subsec. 3 expressly
provides that as to the classes of work therein mentioned,
the work carried on need not form part of the employer's trade
or business. It is sufficient that such work is carried on as
an investment with a view to profit. One of the classes of
work mentioned in subsec. 3 is ' hazardous work, and if
the work is hazardous, it is not excluded from subsec. 3 by the
mere fact that it may be "industrial, commercial, manufacturing,
or building work." The principal and primary object of the
Act seems to me to be that the cost of producing an article to be
offered for sale to the public shall be taken to include
compensation to workmen engaged in the work of production for
personal injury arising out of the ordinary risk attendant upon
the work of producing the article. The work carried on is treated
as producing a commodity to be offered to the public, and the
public have, as purchasers, to bear the expense, not merely of the
labour conferred upon it, but also of the risks which are attendant
upon its production. It is not the employer, but the persons

66

.F. C. NEWMAN V. MELLICK.

Real J.