Scottish Court of Session Decisions

This was an action of damages laid at £150, and raised by Alexander Fraser, labourer, Aberdeen, under the Employers Liability Act 1880, against William Fraser, baker there, on account of the death of his son Alexander Fraser, who was killed while working in the defender's employment by reason of a defect in the condition of the plant connected with the defender's business,

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which defect had not been discovered, he averred, owing to the negligence of the employer. As ground of action the pursuer made the following averments:—In August 1881 the defender built a brick chimney-stalk at his baking manufactory at Westfield, in the parish of Old Machar, Aberdeen. The chimney was 80 feet high. At this time the deceased Alexander Fraser was in the employment of Calder M. Greig, plumber, Short Loanings, as a journeyman workman to him, and both the deceased and his master were working in the employment of the defender. The defender supplied them with materials and plant. Towards the end of August the deceased got instructions from him to fix a lightning-rod and lightning-conductor to the said chimney-stalk, it being stipulated between the defender and Greig that the former was to supply the necessary tackling for the execution of the job. The arrangement was communicated to the deceased, who agreed to do the work, and the defender thus became responsible to the deceased as well as to his master for the sufficiency of the plant. The apparatus required for the fitting up of the lightning-rod and conductor consisted of a block and pulley attached to a wooden beam that was laid horizontally across the mouth of the chimney-stalk, secured thereto by lashings, and a rope fitted on to the block and pulley, from which rope a seat for the workman was suspended, and by which, with the help of a counterweight, the workman was hoisted up and lowered down the side of the stalk. The said apparatus was fitted on for the fixing of the said lightning-rod and conductor on 25th August 1881. On Saturday the 27th the deceased and another man were ordered to carry out the job. While the deceased was being hauled up the side of the stalk on the seat attached to the rope, having with him the coil of wire-rope and his tools, and when he was within a few feet of the top, the rope broke, and he fell and was killed. The pursuer believed and averred as matter of fact that the breaking of the rope was caused by some defect at the spot where the breakage took place, and that this defect was so gross that it must of necessity have been seen, and could have been seen, by the defender had he, or anyone entrusted by him with the duty, examined the rope before putting any workman to work upon it. The pursuer believed that it was cut by some sharp instrument while lying exposed at the foot of the stalk from Thursday the 25th till Saturday the 27th of August. It was the duty of the defender, both at common law and under the Employers Liability Act 1880, sections 1 and 2, to examine, or to cause some proper person to examine, the rope in question on the day when the deceased was killed, to see that it was in proper condition before using it for the purpose in question, and although he well knew that a breakage would result in loss of life, he neglected and failed to have it so inspected, and it was from the failure and neglect of the defender to examine the rope that its insufficient and dangerous condition at the point where it broke was not discovered.

The pursuer pleaded—“The pursuer's son, while working in the defender's employment, having been killed by reason of defect in the condition of the plant connected with or used in the defender's business, and which defect had not been discovered owing to the negligence of the employer, the pursuer is entitled to reparation at common law, and in terms of sections 1 and 2 of the Employers Liability Act 1880.”

The defender in reply made the following averments:—Owing to the failure on the part of the contractor who had undertaken the work, the defender had employed others to finish it, and he procured from James Willox the loan of a snatch block and strong rope, which was used for finishing the building of the stalk and taking up the coping, which consisted of eight cement blocks, each of which weighed two or three cwt. He then contracted with Greig that the latter should put up the lightning-rod and conductor at his own sight. Greig examined the rope and block, and satisfied himself as to their sufficieney. On the 25th August Greig set the deceased to commence the work, though the defender remonstrated with him for not seeing to the matter personally. The work was so badly done that he dismissed the deceased. The next day, however, the deceased came back and insisted on proceeding with the work, and stating that he would finish it, and be responsible for the consequences. On the Saturday, after Greig had been up the rope outside the stalk three or four different times, the deceased made the ascent, and then the accident happened which resulted in his death. The defender further averred that he had contracted with Greig to put up the lightning-rod and conductor personally; that the deceased was no party to the contract; that he was employed and paid by Greig as his journeyman; that the defender agreed to supply the lightning-rod and conductor but nothing else; and that Greig chose the said rope and block on his own responsibility. That as neither the defender nor Greig, nor any other person, saw any defect in the rope, and as the defender himself, as well as others, went up the rope on the outside of the stalk, the defender was not at common law or under the Employers Liability Act 1880, sections 1 and 2, and sub-section 1, liable to the pursuer in damages on account of the death of his son.

He pleaded—“(1) The pursuer's deceased son having been as a journeyman plumber not in the employment of the defender, but that of the said Greig, who superintended the work at the time that the accident happened which caused the deceased's death, the defender is not responsible for the accident either at common law or under the Employers Act 1880. (2) Even although the deceased had been in the defender's employment, as he the defender was not guilty of any negligence or omission in reference to the strength or sufficiency of said rope, which was tested by him, by the said Greig, and by others, he the defender is not at common law or under the said statute responsible for the accident that caused the deceased's death. (3) The deceased having in opposition to the defender's remonstrance persisted in working at fixing said lightning-rod and conductor on his own responsibility, the defender is not responsible for the consequences.”

In the proof which was held in the case the following facts appeared:—It was agreed between the defender and. Greig that the former was to provide the necessary tackle for raising the lightning conductor. On Monday 22d August the rope was borrowed by the defender from Mr Willox, and used for finishing the building of the stalk, and for taking up the coping, which consisted

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of eight blocks each weighing two to three cwt. It was then left suspended inside the chimney till the Thursday following, when it was used for fixing up the rest of the tackle. It then remained lying on the ground, in the yard, till Saturday, when the ascent was made which resulted fatally to the deceased. No examination was made by the defender, or on his behalf, as to the sufficiency of the rope on the Saturday before the ascent was made. James Taylor, a ropemaker, deponed that if a hand-over-hand examination had been made of the rope, the nip in the rope, to which he attributed its failure, might soon have been discovered. There was some corroborative evidence by skilled persons that the rope must have been nipped, and that that might have been discovered by examination; but, on the other hand, other witnesses were of opinion that the condition of the rope rather indicated that it had been cut, while one witness of skill said the cause of the breakage was a mystery. Those that were of opinion that it had been nipped were not at all clear that such an injury would have been discovered by examination.

The Sheriff-Substitute ( Dove Wilson) found in fact “that the deceased Alexander Fraser was at the time of his death engaged as a workman in the employment of the defender; that his death was caused by a defect in a rope provided by the defender, and used in his business; that this defect was not discovered owing to the negligence of the defender; and that it was not proved that the deceased took upon himself responsibility for the condition of the rope: Found in law, that in terms of the Employers Liability Act 1880, section one, sub-section one, and section two, sub-section one, the defender was liable in damages: Modified the same at £150 sterling, and decerned against defender for that sum,”&c.

On appeal the Sheriff-Principal ( Guthrie Smith) dismissed the appeal, affirmed the interlocutor appealed against, and decerned.

He added this note:—“The defender was engaged last summer in erecting a bakery near Westfield, and the deceased was killed while putting a lightning-conductor on a lofty chimney-stalk, through the breaking of the rope to which he was suspended. The defender was his own architect, and was also his own superintendent of works. He took the entire charge of the operations. It is sworn, and is not disputed, that the deceased was bound to take his orders from the defender, who furnished the plant and material, and paid the plumber work at the rate of 7d. per hour. The relation so constituted was not that of contractor and employer, but master and workman, and one of the duties devolving on the defender in virtue of that relation was to take care that the rope used for hoisting the deceased was, so far as could be seen, good and sufficient. This obligation is not affected by the recent Act further than this. The duty of examining the rope to see that it was free from defect might have been performed either by the defender himself or someone for him. In the latter event, prior to the Act, any failure in the performance of his duty by the person to whom it was entrusted would have been the fault of a fellow-workman, for which the master is not responsible. Now, returning to the earlier and sounder view expressed by the Judges in Scotland, a master cannot get rid of the responsibility of attending to the duty of ‘seeing that the ways, works, machinery or plant are in proper condition’ by entrusting it to another. He may still, as before, hand it over to a deputy, but he is answerable for the deputy's negligence. In the present case there is no question as to anyone's negligence but that of the defender himself. We have not to deal with some subordinate who failed to discover the defect by making a hasty and insufficient examination. The negligence consists in there having been no examination at all. The rope was borrowed from Mr Willox, a mason. In appearance it is a stout, strong rope, about the thickness of the wrist. At the point where it snapped under the deceased's weight it looks as if it had been cut as clean as with a knife, and how it should have sustained an injury of this sort is a mystery. No one can account for it. It is quite clear that if it had been examined handover-hand by a man skilled in the handling of ropes, such a palpable flaw would have revealed itself, and a young life full of hope and strength would have been saved. It is desirable that no doubt should exist as to the ground of this judgment. It is because no such examination was made that the defender is condemned. He has much to say by way of excuse. To the eye it was strong, and it had been used for lifting the copestones a few days before. But as between master and workman it is a sound rule which requires all proper precautions to be taken by the master, or someone for him, to ensure the safety of a man sent aloft on a dangerous work of this kind. It is for the welfare of both parties that no doubt should exist as to what is proper to be done under circumstances similar to the present, and the consequences which will follow on the event of the duty being overlooked or forgotten.”

The defender appealed to the Second Division of Court of Session, and argued—In cases such as this, where an accident happened which ordinary care could have prevented, the onus is thrown on the employer and provider of what has proved defective machinery, and of showing that he took all possible precautions to guard against accident by previous examination of said machinery— Scott v. London Dock Company, Feb. 7, 1865, 34 L.J., Exch. 220; The Great Western Rwy. Coy. of Canada v. Braid and The Great Western Rwy. Coy. of Canada v. Fawcett, Feb. 6, 1863, 1 Moore's Privy Council Reports, N.S. 101; Murphy v. Phillips, April 28, 1876, 35 Law Times, Exch Div. 477; Macaulay v. Buist & Coy., Dec. 9, 1846, 9 D. 245. Then it was proved in point of fact that no such examination had been made—an examination all the more necessary in that the rope was left lying for several days on the ground in an open yard, where it might easily have sustained damage.

At advising—