the present case. It seems to me that the work of measuring up the plumbing work in this case was as much ancillary to the main work of plumbing as the removal of the scaffolding was to the work of building in those cases. It was a piece of work which, as being a part of the plumbing work, which was admittedly part of the work of construction, came within the same category as did the removal of the scaffolding, as being part of the building work. If that be so, it disposes of the main point raised by this appeal. Another point was raised before us. It was said that the scaffolding which existed at the time of the accident was put up, not by the respondents for the purpose of the plumbing work, nor by the undertakers who contracted for the building work for the purposes of their work, but by the persons who had contracted for the putting up of the steam-pipes, which, it is contended, formed no part of the construction of the factory. I do not think that this point was really raised before the county court judge. The case seems to me to have been dealt with by him all through on the assumption that the scaffolding was being used for the construction of the building. From what he said, he appears to me clearly to have treated it as being used at the time of the accident for the purpose of completing the building, and I do not think the point now sought to be raised was ever brought to his mind. The terms of his judgment seem to me plainly to import that he was dealing with the case solely on the footing that the scaffolding, as regards its use for the purpose of fitting the steam-pipes, was being used for a necessary part of the process of constructing the building, in which case it would not matter by whom it was erected. Under these circumstances I do not think that the point now raised is open to the respondents. For these reasons I think the appeal must be dismissed. MATHEW L.J. I am of the same opinion. The first question is whether the measuring up of the plumbing work is to be regarded as part of the work of constructing the building. In my judgment it must be so regarded, it being manifest that, under the contract, it was intended that the work, when VOL. I. 1905. 2 C 2 C. A. 1905 PLANT บ. WRIGHT & Co. Collins M.R. C. A. 1905 PLANT v. WRIGHT & Co. finished, should be measured up by the respondents before the contract price was paid. That being so, I agree that the principle of the cases to which the Master of the Rolls has alluded is applicable. From a business point of view, the measuring up is in such cases an essential part of the process Mathew L.J. of doing the work. With regard to the other point, I do not think the attention of the judge was ever really called to it; and he seems to have treated the case entirely on the basis that the scaffolding was, at the time of the accident, being used for the purpose of completing the construction of the building. I agree, therefore, that the appeal must be dismissed. COZENS-HARDY L.J. I am of the same opinion. I entirely agree with the conclusion arrived at by the county court judge, and the reasons given by him for that conclusion. Appeal dismissed. Solicitors for applicant: Judge & Priestley, for P. Baker, Birmingham. Solicitors for respondents: Ward, Bowie & Co., for T. W. Walthall, Birmingham. E. L. [IN THE COURT OF APPEAL.] Employer and Workman-Workmen's Compensation-Building which exceeds The employer of a workman entered into a contract for the construction of a building by way of addition to an existing building, which exceeded thirty feet in height. The new building, when completed, was to form one building with the existing building, to be used as a station for generating electrical power; and for that purpose it was intended that the walls of the new building should be built into the end wall of the existing building, and that alterations should be made in that building. At the time when the after-mentioned accident happened, the new building was being constructed by means of a scaffolding, but no part of it had reached the height of thirty feet. Its walls had not been connected with that of the old building, but some of the footings for the walls were in actual contact with that building. The workman, while engaged in the building operations on the new building, sustained injuries from an accident arising out of and in the course of his employment, in respect of which he claimed compensation under the Workmen's Compensation Act, 1897 :— Held, that, the case being one of a new building by way of an extension of the old building, which involved alteration of that building, the workman might be regarded as having been employed about a building which exceeded thirty feet in height, and, therefore, was entitled to compensation. APPEAL against the award of the judge of the Portsmouth County Court upon a claim for compensation under the Workmen's Compensation Act, 1897. The applicant for compensation was a workman, who had been in the employ of the respondent, a builder and contractor. The respondent had contracted with the corporation of Portsmouth to erect a building on land belonging to them by way of addition to an existing building used by them as a station for generating electric power, which exceeded thirty feet in height. It was intended that the new building should, when complete, form one building with the old, and that the whole should be used as a station for generating electricity. The applicant, C. A. 1905 Jan. 20. C. A. 1905 HARTLEY V. QUICK. while working on the new building, which was being con- C. A. 1905 or to form two buildings to which an existing wall would be common, absolute physical attachment of the one building to the other was not necessary, so long as the building operations HARTLEY were being carried on in connection with both buildings; and he therefore awarded compensation to the applicant. Danckwerts, K.C., and Minton-Senhouse, for the employer. This case does not come within the decision in Knight v. Cubitt & Co. (1) That was the case of a party wall, a wall, which exceeded thirty feet in height, having formed the wall both of the building that was to be left standing and of the building that was being pulled down; and therefore it might be said that a part of the latter building which exceeded thirty feet in height still remained standing. The present case is one in which an altogether new building was being erected. At the time of the accident, the old building had not been really interfered with, nor had the walls of the new building been connected with it. The mere intention to interfere with it, or to use its wall for the new building, cannot be treated as constituting that building, at the time when the workman was employed upon it, a building which exceeded thirty feet in height, when in point of fact no part of it had reached that height. Whatever may have been the ultimate intention, the old and new buildings were in fact two buildings and not one building at the time of the accident. The county court judge. speaks of them as two distinct buildings in his judgment. The county court judge was wrong in supposing that there was any conflict between the decision in Rixsom v. Pritchard (2) and that in Knight v. Cubitt & Co. (1) In Rixsom v. Pritchard (2) the buildings were independent buildings, and the party wall between them had only formed the wall of the building that was being demolished to a height of less than thirty feet. In Knight v. Cubitt & Co. (1) the party wall formed the wall of both buildings to a height of more than thirty feet. This case is really governed by the decision in Rixsom v. Pritchard. (2) Ruegg, K.C., and J. O'Connor, for the workman. It is true that the learned county court judge did to some extent deal (1) [1902] 1 K. B. 31. (2) [1900] 1 Q. B. 800. v. QUICK. |