Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Hamilton. The action was one brought by a workman against his employer, concluding for damages for personal injuries; and the question was, whether the injuries were sustained through the fault of the employer? It appeared that the pursuer was on 22d June 1868 engaged by the defender's orders in removing from the empty bed of the Monkland Canal certain stones and loose mason work which had formed part of the pier of a bridge recently taken down. There was a high clay embankment immediately behind the said pier, and which had previously rested on it, and it was at the foot of this embankment that the pursuer had been set to work. While the pursuer was at work on the day in question, a portion of this embankment fell upon him, and injured him so severely that his leg had to be amputated. The pursuer alleged that it was the defender's duty to have made provision for the safety of his workmen by having the embankment sloped back in such a way as to obviate the danger of its falling. The defender, on the other hand, alleged that the danger had been as obvious to the pursuer as to him, if there was danger, and maintained generally that the accident was due to the pursuer's own negligence.

The Sheriff-Substitute ( Veitch) found for the pursuer, and awarded him £25 damages. The Sheriff ( Bell) adhered, but increased the damages to £50.

The following is the interlocutor of the Sheriff:—

Having heard parties' procurators on their respective appeals, and considered the proof and whole process—Finds that at the time the pursuer sustained the injuries for which he seeks reparation he was engaged, by the defender's orders, in whose employment he was, in removing from the empty bed of the Monkland Canal certain stones and loose mason work which had formed part of the pier of a bridge recently taken down: Finds that there was a high clay embankment immediately behind the said pier, and which had previously rested on it, and it was at the foot of said embankment that the pursuer had been set to work: Finds that, the support of the pier being withdrawn, a part of the embankment gave way and fell on the pursuer, and injured him so severely that one of his legs had shortly thereafter to be amputated: Finds it proved that the embankment, as soon as the pier against which it rested was removed, became dangerous, and ought to have been cut down, or at all events duly sloped, before any one was allowed to work beneath it: Finds that it is not proved that it had been so cut down or sloped, and it is not proved that the plan, No. 9—prepared, not from actual observation, but from statements furnished by the defender—contains a correct representation of the embankment at the time of the accident: Finds, on the contrary, that the pursuer depones as a witness in causa—‘When the pier was removed the embankment was left exposed: it was nearly perpendicular, but rather inclined to the side of the canal where we were working. We were occupied in digging out a stone with picks. I was stooping down with my face towards the canal, and back towards the embankment. Some of the embankment came down upon me, and knocked me down into the bed of the canal:’ Finds that this evidence is expressly contradicted by that of the pursuer's two fellow-workmen, John Garretty and Owen Reilly, and is consistent with probability, whereas it is hardly possible that any debris, or any portion of the embankment, could have fallen on the pursuer had it been sloped back in the manner delineated in said plan: Finds that the rule of law is, that ‘while a servant is required to consider his liability to an injury by the carelessness of his fellow-workmen as one of the incidents of his employment, the risks of which he has aasumed in contracting with his employer, he is equally entitled to expect that the master, on his side, will do his duty towards him, by taking all

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proper measures to protect him, as far as possible, from unnecessary danger;’ and so the master has been held liable in damages for the want of lining or barring to the sides of a pit, in consequence of which some of the crumbling strata fell on the men working at the bottom (See Smith on Reparation, p. 56, and Marshall v. Stewart, 18th December 1851): Finds that the defender did not, in the present instance, fulfil his duty to the pursuer by taking proper precautionary measures for his protection: Therefore adheres to the interlocutor appealed against in as far as it repels the defences, and finds the defender liable in damages; but as regards the amount of damages found due (being only £25), sustains the pursuer's appeal, and so far alters the said interlocutor: Finds that, considering the injuries to the pursuer resulted in the loss of a leg. which was amputated above the knee, the minimum sum in which the defender falls to be held liable is £50: Decerns against said defender for that sum accordingly, and quoad ultra dismisses both appeals.”

The defender appealed.

Solicitor-General and Harper for him.

Pattison and Macdonald in answer.

The Court held unanimously that there was negligence on the part of the defender in not providing for the due sloping of the embankment; and that there was nothing to infer recklessness or negligence on the part of the pursuer, especially as the pursuer was not a skilled workman, but a common labourer; and the danger from the position of the embankment was one which required a certain amount of skill to appreciate.