Scottish Court of Session Decisions

This action was raised by Mrs Shaw, widow of the deceased John Shaw, miner, Gavieside Oil Works, West Calder, and Elizabeth, Catherine, and Thomas Shaw, their three surviving children, against the West Calder Oil Co., and also against Robert Boyd, contractor, West Calder, concluding that the defenders, or one or other of them, should be decerned and ordained to pay to the pursuers certain sums in name of compensation, damages, and solatium for the death of their husband and father John Shaw senior, and also for that of their son and brother John Shaw junior, who had been killed at the pit at Gavieside through the fault and negligence, as alleged, of the defenders, or one or other of them.

The West Calder Oil Co. were the lessees of the pit at Gavieside aforesaid, and Robert Boyd had contracted with them to work the seam of shale therein, under an agreement, the terms of which will appear from the opinion of the Lord President. The deceased John Shaw senior and John Shaw junior, who were engaged as miners working in said pit, were killed through the breaking of the wire rope which was used in raising and lowering the case to and from the pit mouth. The defender Robert Boyd had since the accident left the country, and his affairs were believed to be in a state of insolvency. The action was therefore insisted in against the defenders the West Calder Oil Co. only, who contended that the deceased having been in the service of their contractor Mr Boyd, and not in their own, they were not liable for their deaths, or for the negligence of their said contractor.

It was pleaded by the pursuers—“(1) The death of the said John Shaw senior and John Shaw junior having been caused by the fault and culpable negligence of the defenders, the said West Calder Oil Company, and the said individual partners thereof, as partners or as individuals, or by the fault and culpable negligence of the said Robert Boyd, or by the fault and culpable negligence of those for whom in law they are responsible, the said defenders, or one or other of them, are liable to make reparation to the pursuers for the loss, injury, and damage thereby sustained. (2) The defenders being bound to exercise due care, in order to have their tackle and machinery in a safe and proper condition, so as to protect their servants against unnecessary risks, and having by their failure to do so occasioned the deaths of the said John Shaw senior and John Shaw junior, are liable in reparation and solatium, as concluded for.”

The case went to trial upon the following issue:—

“Whether, on or about the 16th day of January 1871, the shale-pit No. 2, at Gavieside, West Calder, was held on lease by the defenders, the

Page: 255↓

West Calder Oil Company, and worked by them; and whether, on or about said date, the said John Shaw senior and John Shaw junior were employed by the said defenders as miners, and were, while acting in said employment, precipitated to the bottom of said pit, and killed, in consequence of breaking of the rope used for raising and lowering the workers in said pit, through the fault of the said defenders, to the loss, injury, and damage of the pursuers?”

In charging the jury, the presiding Judge ( Lord Ormidale) gave the following direction:—“If the jury were satisfied on the evidence that, at the time the accident in question happened, the pit referred to in the issue, and fittings connected therewith, including ropes, were in the occupation and charge of Robert Boyd, and worked by him as a contractor under and in terms of the agreement No. 19 of process, and that the deceased John Shaw senior and John Shaw junior were, when they were killed, acting in the employment of Robert Boyd, then in law it cannot be held that it was through the fault of the defenders that the Shaws were killed.”

Against this direction the counsel for the pursuers excepted, and asked his Lordship to give the following directions instead:—“(1) That the West Calder Oil Company having power under their lease to work the minerals in the lands of Gavieside, and to carry on manufactures of such minerals on said lands, and employed Boyd to assist them in a subordinate part of said trading operations, by putting out the shale for payment at a certain specified rate per quantity, Boyd is not to be considered an independent contractor, but a servant of said company. (2) That if the jury are satisfied upon the evidence that the machinery in use at the time of the accident was the property of the West Calder Oil Company, and that the miners employed in the pit in which the accident occurred were not made aware of the terms of the contract between the Company and Boyd, and were not made aware that the contract placed any obligation on Boyd as to the providing or maintaining of the machinery for raising and lowering the miners working in the pit, but were only made aware that he had contracted to work the shale, Boyd is to be held to be the servant of the company, engaged to work by the piece, and the miners working under him to be in the service of the company, and entitled to rely upon the company providing safe and sufficient machinery for raising and lowering them while workers at that pit.”

On his Lordship refusing to give the said directions, the pursuers' counsel again excepted.

The jury thereafter brought in a verdict for the defenders on the said issue, and stated the following as their reasons for arriving at the said verdict:—“That the jury are of opinion that the deceased Shaws met their deaths in consequence of the defective and faulty state of the rope, which had long been subjected to atmospheric and other influences—all tending to make it utterly unfitted for the risk of human life at the time of the accident; and had it not been for the legal interpretation put upon the contract by the Judge, they should, by a majority, have given their verdict in favour of the pursuers. But as the law recognises the binding nature of the contract between the company and Boyd, they are necessarily obliged to give their verdict for the defenders, in accordance with the Judge's direction on the points of law relating to the said contract.”

A bill of exceptions was presented by the pursuers to the First Division, founded on the two exceptions above mentioned.

Macdonald and Hunter were heard in support of the bill of exceptions.

Authorities— Rankine v. Dixon, Mar. 19, 1847, 9 D. 1048; Maclean v. Russell, Macnee & Co., Mar. 13, 1849, 11 D. 1035, and Mar. 9, 1850, 12 D. 887; Nisbett v. Dixon, July 8, 1852, 14 D. 973; Marshall v. Stewart, Mar. 3, 1852, 24 Jur. 298, see also 14 D. 596; Stone v. Cartwright, 1795, 6 Durn and East, 411; Rendlestone v. Murray, 5 Ad. and Ellis, 109.

Watson and Maclean, for the defender, were not called upon.

At advising—