Scottish Court of Session Decisions

This was an action of damages by the widow and children of a man who was killed by the falling of the roof of a shed in course of erection by the defenders. The pursuers averred that the shed fell through the fault of the defenders, and that the deceased was at the time “at work below the roof which fell, being then engaged in laying a line of rails through the shed.” The defence was (1) a denial of fault, and (2) that the deceased had no business to be where he was when the shed fell.

The pursuers proposed an issue for trial, simply putting the question whether the deceased was killed through the fault of the defenders. The defenders objected to the proposed issue that it did not embrace the question whether the deceased, who was not in the defenders' employment, was at the time lawfully within the premises. They maintained that this ought to be put in issue, because, even assuming fault on their part to be proved, there was no obligation on them to pay damages to the pursuers unless it was also proved that the deceased was lawfully on the premises; and without this averment the action would not have been relevant. They referred to Teasdale v. Monklands Railway Company—Sc. Law Rep., ii, 6.