Scottish Court of Session Decisions

This was an action raised in the Sheriff Court of Lanarkshire at Airdrie, at the instance of Mrs Christina Bird or Morrison, widow of Sylvester Morrison, concluding for £500 damages in respect of his death while in the employment of the defenders William Baird & Co., from injuries received when at his work in their Westfield Limestone Pit.

The pursuer averred—“(Cond. IV.) The whole work in the Westfield Pit is carried on under the control and supervision of a general manager, and a staff under him, appointed and paid by the defenders. Their general manager, Mr William Cameron, is non-resident, but comes to inspect and supervise the works once a-week or thereby. Under him John Campbell acts as underground manager, and is constantly in the pit. These managers and the staff employed by the defenders have the whole control and management of the works. They have the power to employ or dismiss any of the men in the pit, and to order any portion of the work to be done or to be stopped. The character of the working is very hazardous, chiefly owing to the great height and steep dip of the limestone seam. The men working on the benches [explained by a preceding article to mean plies or slabs of limestone separated by “beds” or natural splits] require chains fastened to the rock to enable them to hold on and keep a footing on the benches. It is the duty of those in charge of the works, and employed for the purpose by the defenders, to see that every possible precaution is taken for the safety of the men working in the pit. The mine is worked under ‘The Metalliferous Mines Act, 1872’. (Cond. V.) The defenders are in the habit of arranging with certain of their men to excavate one or more of the working faces of limestone in the pit, giving them a fixed rate for every ton of limestone produced at the bottom of the shaft, and authorising them to employ the necessary bossers, benchers, breakers, and drawers. Such arrangements are not made for any fixed period, and either party can bring them to an end whenever he pleases. In all cases the defenders retain to themselves the whole control and supervision of the working, and of its various parts, and of all the men in the mine, and all the workmen engaged in the mine form one organisation, and are subject to one general control exercised by the defenders or by those to whom their authority is delegated. (Cond. VI.) At the time when the accident hereinafter mentioned occurred, one of the working faces of the said pit was wrought by James M'Intyre, a miner residing in West Calder, under an arrangement with the defenders such as is above described. M'Intyre had under him the various classes of workmen required for taking out the stones. The said deceased Sylvester Morrison, who was not himself a practical miner, was for a fortnight prior to the said accident engaged under M'Intyre as a drawer. His work was to draw the limestone in the trucks from the working face to the pit shaft. On the forenoon of said 22d April 1881 he was requested by the said James M'Intyre to take his dinner an hour before the other miners took theirs, and to come while they were absent to assist him in removing stones from the place where the benchers were working, down to where the breakers were working, that they might thus clear the way for the benchers to resume work when they had taken their dinner. He did as he was ordered, and while he was engaged removing the stones a large mass of rock, weighing several tons, fell from the face of rock above them, crushing the said Sylvester Morrison, and jamming him against other stones which lay beside him, and inflicting serious internal and external injuries through which he died on or about 29th April 1881. M'Intyre also suffered injuries which prevented him resuming work for some weeks. (Cond. VII.) The mass of rock which fell down and caused the accident had been left by those in charge of the mine in a dangerous position, projecting over the face of the rock, almost detached from the rest of the rock, and almost without any support. The accident through which the said Sylvester Morrison lost his life occurred through the culpable negligence and fault of the defenders, or of the said William Cameron, John Campbell, or James M'Intyre, or one or more of them, or of others in the defenders' employment, in charge of the working of said pit, or at least of the said working face, or by reason of the defective and insufficient arrangements made by the defenders for carrying on the works. The said Sylvester Morrison did not know that the said mass of rock was insufficiently supported. He was ordered from his regular work of drawing trucks along the levels to the pit shaft to the place where he met the accident, without being told that he incurred any special risk. After the accident wooden supports were placed on the roof of the pit along the said sand gurry, to prevent more accidents arising from stones falling down on the men working below.”

The defenders denied fault. They averred that the work of excavation in their pit was done under contracts with limestone miners, who were paid at a certain rate per ton excavated, and that these

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contractors employed and paid their own “bossers,” “benchers,” and “drawers.” They denied that they had any power to dismiss the contractors' men. They averred that when Morrison was injured he was not their servant, but was employed and paid by M'Intyre, who was a contractor with them and not their servant.

The pursuer pleaded, inter alia:—“(1) The death of the said Sylvester Morrison having been caused by the negligence or faults of the defenders, or those for whom they are responsible, the pursuer is entitled to decree against them at common law in terms of the conclusion of the summons. (2) The accident in question having been caused by the negligence of persons in the service of the defenders who had superintendence entrusted to them, whilst in the exercise of such superintendence, the pursuer is entitled to decree in terms of the Employers Liability Act 1880.”

Then followed certain other pleas, which like the second were founded on sec. 1 of the Employers Liability Act 1880.

The defenders pleaded, inter alia—“(1) The action is incompetent as laid;” and also—“The statements for pursuer are irrelevant.”

The record having been closed, the pursuer, in virtue of the provisions of sub-section 3 of section 6 of the Employers Liability Act 1880, lodged a note to have the process transmitted to the Court of Session.

Section 6 of the Employers Liability Act 1880 provides that “in Scotland any action under this Act may be removed to the Court of Session at the instance of either party, in the manner provided by, and subject to the conditions presented by, section 9 of the Sheriff Court (Scotland) Act 1877.” That section provides that if a defender of any action in a Sheriff Court “shall at any time before an interlocutor closing the record is pronounced in the action, or within sixty days after such interlocutor shall have been pronounced, lodge a note in the process in the following or similar terms, that is to say, ‘The defender prays that the process may be transmitted to the Court of Session,’ the Sheriff Clerk shall transmit the process forthwith to the Keeper of the Rolls of the First Division, who shall, under the directions of the Lord President, mark the Division and Lord Ordinary before whom it is to depend, and transmit it to the Clerk at the bar of such Lord Ordinary, and the process shall thereafter proceed as if it had been initiated in the Court of Session.”

The process having been marked to Lord Lee, his Lordship, on the motion of the defenders, allowed this additional plea-in-law for them, as proposed at the bar, to be added to the record—“(2) The removal of the action to the Court of Session under the Act of 1880 infers the abandonment thereof, so far as not founded on that Act; at all events, such removal cannot bring up the action except in so far as it is founded on the said Act, and quoad ultra it should be dismissed.” Thereafter he repelled their first plea, “The action is incompetent as laid,” and the additional plea just stated, and appointed issues to be adjusted for the trial of the cause.

“ Opinion.—In this case, as in a good many other cases, some of which have already gone to trial and been disposed of, I have, as a matter of course, given effect to the view of the recent statute which I understand to have been authoritatively expounded in the case of M'Avoy v. Young's Paraffin Oil Company (Nov. 5, 1881, 9 R. 100).

That view is that the Employers Liability Act was intended to operate, and operates, merely to exclude in certain cases a defence which but for its provisions would be pleadable by the employer against a claim of damages for personal injury suffered in his employment. The Act bears to be ‘An Act to extend and regulate the Liability of Employers.’ The leading enactment is framed upon this principle, and provides that in the specified cases the workman or his representatives ‘shall have the same right of compensation and remedies against the employer’ as if he had not been a workman in his service nor engaged in his work. The Lord Justice-Clerk accordingly stated that ‘that Act was only intended to clear up the law.’ And Lord Young explained even more fully ‘that the operation of the Act of 1880 is just to exclude a defence which theretofore would have been competent to the employer in the event of its appearing to the satisfaction of the jury that the defect or neglect which led to the accident was attributable to the carelessness or negligence of fellow-workmen.’

When that case came back to the Outer House for the adjustment of issues the point now pleaded was raised by the Lord Advocate, and fully discussed before me (19 Scot. Law Rep. 137). I thought that the ratio of the decision upon the question of procedure settled the point, and I so decided; and I am bound to say that in the trial of the cause upon an issue which left it open to the pursuer to maintain his claim, both on the common law alone and also on the law as amended by the statute, no difficulty arose either in ascertaining the verdict of the jury (which ultimately proceeded on the statute) or in submitting that verdict to the consideration of the Court upon a motion for a new trial.

In other cases the same course has been followed ( Moffat v. Lyall, tried 2d February 1882; Gordon v. Walker, Henderson, & Company, issues adjusted 26th May; Strachan v. Aitken & Mansell, issues adjusted 6th June; Hendry v. Cassels, issues adjusted 20th June).

It is now again pleaded, however, that the removal of the action to the Court of Session infers the abandonment of it so far as not founded on the statute, or, at all events, that such removal brings up only so much of the action as is founded on the statute; and it was stated to me that the Second Division of the Court, in the case last mentioned, had given effect to this plea in varying the issue then adjusted. As, however, it was admitted that no opinions were delivered, and that the plea had not been formally sustained in either of its branches, I think it right in the meantime to adhere to the view which I understood to be laid down in M'Avoy's case, and which appears to me irreconcileable with the contention that the pursuer of such an action is by the statute put to his election between a claim at common law alone and a claim under the Act.

The point is of such essential importance in the working of the Act that, even if I am mistaken in supposing that it was not decided in Hendry v. Cassels, I should think it desirable in the circumstances to avoid leaving any room for doubt on the subject.

In case the point should not have been decided

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in varying the issue in Hendry v. Cassels, I may again explain briefly the view upon which I have hitherto proceeded in these causes.

I hold it to be a question of construction whether the words of the 6th section, ‘any action under this Act,’ include an action under the common law of Scotland as amended by the Act. And I am of opinion that on a sound construction of the statute they do. I think that an action which relevantly libels a claim at common law, and also pleads the statute to meet the possible case of the facts disclosing a defence at common law which may be met by the provisions of the Act, is an action under this Act,’ and none the less so that it is in one view laid upon the common law alone.

This view, I think, was necessarily involved in the doctrine of M'Avoy's case, and the contrary view appears to me to be inconsistent with the professed object of the statute.

To hold that the statute in its 6th section was not intended to enable either party to remove such an action as a whole to the Court of Session it is necessary to suppose that the ground of action under the statute is entirely distinct from and exclusive of an action at common law. I think, according to the true meaning of the statute, the ground of action is in every case fault; and that the statute is only required and pleaded to the effect of meeting a defence that in certain cases the employer is not responsible for the fault. That appears to me to be the doctrine which was expounded in M'Avoy's case.

Again, to hold that the effect of the statute was to put the pursuer to his election between libelling a case under the statute and libelling a case at common law, independently of the statute, would be to suggest that the Legislature, while professing to amend the law in favour of the workman, did so in a manner which would practically defeat that object. I apprehend that the intention of the Legislature presumably was to enable both parties to obtain a judgment according to the law as amended, and upon the facts as these should be ascertained. The notion that it should be impossible under the law as amended to try a cause of this kind either before the Sheriff or before a jury without limiting the Court beforehand to one or other of the two alternatives—of liability at common law alone, or liability by reason of the statute—is one which I cannot reconcile either with the statute itself or with the doctrine of the case of M'Avoy.

Once more, it appears to me that such an action as the present was undoubtedly competent in both aspects in the Sheriff Court. Suppose that the defender desired to remove it to the Court of Session, could it be said that he could only remove it under the 6th section in so far as founded on the statute. I confess myself entirely unable to arrive at that conclusion. I think that the statute enabled him to remove it as a whole, and did not require or allow him to remove it in part only, leaving the other branch in the Sheriff Court. The process would certainly be removed in its entirety. There would be nothing left for the Sheriff to write upon; and it would be a strange conclusion that the defender should have it in his power, by removing one aspect of the cause to the Court of Session, to extinguish the pursuer's claim at common law.

If a defender was intended to have it in his power to remove such an action as a whole to the Court of Session in the manner provided by section 6, I think it follows that the pursuer has the same power.

On the whole, although the statute may be awkwardly framed, I think that it admits of a construction which is consistent with its professed object, and that it is unnecessary to create a difficulty, which should not exist, by holding that the form of process introduced by the 40th section of the Judicature Act is alone applicable to the action so far as laid on the common law. Even if the double form of process could be applied at the same time to effect the removal of the cause, I should hesitate to find it necessary to resort to so cumbrous a procedure; for I do not think that the statute suggests the necessity of a double process of removing. But as the case stands, it appears to me still more difficult to adopt a construction which would lead to that result. The time allowed for removal under the recent Act is different from that allowed under the Act of George IV. for appeal for jury trial. But I think that the difference is not intended to disable the pursuer in such a case from having all the remedies to which according to the amended law he is entitled. The more natural construction of the 6th section is, in my opinion, to regard it as applicable generally to all actions under the statute, although also pleading the common law liability of employers.”

The defenders, having obtained leave, reclaimed, and argued—The action as laid is incompetent. The Employers Liability Act 1880 prescribes the mode for bringing the case from the Sheriff Court to the Court of Session. This mode is only appropriate to actions brought under the Act. Actions at common law cannot so be brought. The action must either be at common law or under this statute, or the claim must be restricted to what this statute allows. Further, the action is irrelevant (1) at common law—it is covered by the case of Woodhead v. Gartness Mineral Co., Feb. 10, 1877, 4 R. 469; (2) under the statute, the operation of which is limited to certain definite cases, and particularly to cases where there is a contract of service between the “employer” and the “workman.” Here the pursuer's own averments were that the deceased was not in the defenders' service, but in the service of a person who was working in the mine as an independent contractor.

The pursuer on the question of procedure supported the interlocutor of the Lord Ordinary. On the question of relevancy the pursuer submitted that the relevancy of the averments fell to be discussed at a later stage, when the issue was adjusted.

During the argument the defenders proposed, and were allowed, to add the following plea to the record:—“The action cannot be maintained under the Employers Liability Act, because on the averment of the pursuer the said Sylvester Morrison was not a servant of the defenders.”

Authority— Woodhead v. The Gartness Mineral Company, Feb. 10, 1877, 4 R. 469.