Scottish Court of Session Decisions

This was an action of damages in respect of the death of Michael M'Laughlan, the husband of the pursuer Mrs Helen M Laughlan. The defenders were Colin Dunlop & Co., ironmasters, and the individual partners of that firm, and James Galt, manager of the furnaces of the firm at Quarter, Hamilton. The pursuer averred that the death of her husband was caused by the fact that a clasp and chain used in the works of the defenders Colin Dunlop & Co., and the breaking of the latter of which caused the accident by which her husband was killed, were not of sufficient strength or efficiency for the purposes to which they were applied, or were otherwise defective in construction or material, and she alleged that the defenders, or one or other of them, or those for whom they were responsible, had culpably failed to supply good and sufficient machinery. The defenders denied fault, and averred that the action was a damnum fatale for which they were not responsible.

The death of the pursuer's husband occurred prior to the commencement of the Employers Liability Act 1880 (43 and 44 Vict. c. 42), which came into force on 1st January 1881, and which provides (sec. 1)—Where after the commencement of this Act personal injury is caused to a workman by reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the employer… the workman, or in case the injury results in death, the legal personal representatives of the workman, and any persons entitled in case of death, shall have the same right of compensation

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and remedies against the employer as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work. Section 2, sub-sec. (1), provides that the workman shall not be entitled to compensation under the Act unless the defects in the ways, works, &c., “arose from or had not been discovered or remedied owing to the negligence of some person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition.”

The material facts of the case as they appeared from the proof were these—The deceased was admittedly a steady and respectable man, and was quite sober at the time of the accident. The work in which he was engaged was that of charging a furnace at the works of the defenders Colin Dunlop & Co. In order to do this he had first to fill a barrow with the material for firing the furnace, from bings on the ground near the furnace, then to wheel the barrow on to a cage or platform, which was raised by an engine to the height required for emptying the material into the furnace. The duty of the deceased was to enter the cage with the barrow and ascend with it to this required height, and then empty it into the furnace. The cage was raised by means of a wire rope from which it depended. At the bottom of this rope was an iron clasp or hook, to which the cage was attached by a chain. On the 22d January 1880, immediately after the deceased had begun work, and while he was making his first ascent for that “shift,” the clasp gave way, and the cage containing him fell to the ground, with the result that he was almost instantaneously killed. On examination of the broken clasp it was discovered that there had been in it where it gave way a small fracture which appeared to be of some standing, and which some of the witnesses described as a “hairbreadth” crack. There was much conflict of opinion among witnesses of skill and experience as to whether this crack ought to have been discovered by the person in charge of the machinery, some witnesses being of opinion that neither by scraping nor rubbing the clasp could it have been seen, while there was a large body of evidence to the effect that it might have been discovered with due care. The defenders led evidence to show that even had the clasp been quite cut through at that point there was strength enough on the other side of it to have held a far greater weight than was ascending on the occasion in question. There was also found in the clasp another crack, about which it was not clear upon the evidence whether it was of old standing or not. The defenders maintained at the proof that the accident arose from sudden jerk or strain which had snapped the clasp, and might have been caused by the barrow not having been properly placed on the cage, with the result that it struck the uprights through which it had to ascend. The engineman who was in charge of the engine, however, deponed that had this been so he would have felt a jerk at the engine, and that he had not done so.

With regard to the liability of the defenders for the condition of the clasp, it was proved that it and the other machinery connected with the engine was in charge of the engineman, a witness named Brown. He had been seventeen years with Colin Dunlop & Co., but had been only eleven shifts in charge of this engine. His work had principally been in the coal pits of the firm, but he had been ten or eleven years engaged as odd man at a hoist there, and had been six months at a hoist similar to that at which the accident happened. He deponed that he had, according to his duty, examined the clasp carefully with the eye once in every twenty-four hours, and that he had also for several days before the accident tapped it with a hammer. No evidence was led to show that Brown was a careful or skilful person, the defenders relying on his experience and the number of years he had been in the employment of the firm. On the other hand there was no evidence led by the pursuer to show that he was incompetent for the work which he was engaged in doing, and no averment to that effect on record. The clasp had been in use for more than seven years at the time of the accident. A new wire rope had been fastened to it by the blacksmith shortly before the accident. It was proved that this would not tend to injure it, and that the blacksmith who had done the work was a careful workman, and that he had discovered no flaw then.

It was proved that the defenders supplied their workmen with all needful materials and machinery, and that if the engineman asked that any repairs should be done they were done at once.

It was also proved that the kind of clasp used at the time of the accident was in common though not universal use in similar works, and that a new and heavier clasp was introduced after the accident. Mr Dunlop, one of the partners of the firm, was a witness, and stated that he took a general supervision of the works. The defender Galt deponed that he had superintendence over the plant, and that he had instructed the engineman to give this piece of machinery, as well as the rest of the machinery in his charge, a close inspection with the eye once in twenty-four hours, but not to scrape off the rust or tap or rub the clasp in order to look for flaws and cracks. He thought tapping would be useless for the purpose, having regard to the position of this clasp and the kind of iron of which it was made.

The Sheriff-Substitute ( Birnie) pronounced this interlocutor:—“Finds in fact that the deceased Michael M'Laughlan was in the employment of the defenders as a furnace filler at their furnaces at Quarter: Finds that he was thirty-two years of age, and that his wages as a standing filler were about £3, 12s. 7d. per fortnight: Finds that on 22d January 1880 he was killed by a fall of the cage in which he was standing while ascending the lift: Finds that said cage fell by the breaking of the clasp by which it hung: Finds that there was previous to said breakage a crack of from one-sixteenth to one-fourth of an inch in depth in said clasp at the point of breakage: Finds that this crack ought to have been seen by the defenders, or those for whom they are responsible, but that the breakage did not arise from said crack: Finds that the breakage arose from causes which the defenders were unable to foresee: Finds, further, that the furnaces were under the management of Mr Galt, that the clasp was heated and rivetted by the head blacksmith, and that it was the duty of the engineman and of the deceased to examine it: Finds in law that the deceased was not killed through the fault of the defenders: Assoilzies them from the conclusions of the action: Finds them entitled to expenses,” &c.

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The Sheriff ( Clark) on appeal recalled the interlocutor of the Sheriff-Substitute, found that the death of Michael M'Laughlan was caused through the fault of the defenders, or those for whom they were responsible, and decerned in favour of the pursuer, with expenses, assessing the damages at £150.

“ Note.—That the pursuer's husband met his death in consequence of the fall of the cage in the defenders' work admits of no doubt. The question is, whether in the circumstances of the case the defenders are liable therefor? Now, the defenders were bound to have supplied proper machinery for the raising and lowering of the cage while it was being used by the pursuer's husband. It appears from the evidence that the proximate cause of the fall of the cage was a fracture of the clasp by which it was attached to the rope worked by the engine. On this clasp there was a crack to the extent of half the depth or thickness of the clasp on one of its sides. It is now proved beyond all doubt that the defenders, or those for whom they are responsible, ought to have noticed this defect before the accident occurred. Whether or not this defect was the actual cause of the fracture of the clasp is the question really involved. If there were no evidence in the case beyond the mere facts themselves, the presumption would be that the crack was the real operative cause. And that is the pursuer's case. Against this it is maintained for the defenders that, notwithstanding the existence of that crack, what remained sound of the clasp had strength sufficient to support the weight of the cage and its contents without excessive strain. I do not think the evidence sufficient to warrant that conclusion. It depends mainly on the opinions of three witnesses for the defence, and they were certainly wrong (as the additional evidence now shows) in maintaining that the crack was of such a nature that it could not have been seen before the accident occurred by the use of ordinary means. Now, if they were wrong on this important point, considerable doubt is thrown on their judgment in other respects. When asked how, if the crack was not the cause of the breakage, the fact is to be accounted for, they suggest that it might have arisen from a sudden jerk suffered by the clasp through the cage having come in contact with the sides of the tower in which it worked, or by a ‘kank’ in the chain producing a similar jerk. These are mere theories, and there does not seem any reliable evidence in support of them. It is clearly proved that if a sudden jerk of this kind had taken place the man working the engine above must have been conscious of it, and yet he distinctly swears that nothing of the kind occurred to attract his attention, but that the first intimation of the accident was the crash at the bottom. It is also observable that if the cage had come in contact with the sides or any part of the tower, the jerk so caused must have left some mark on the materials with which it came in contact. There is no evidence of this, and it cannot be doubted that if such had been the fact it would have been clearly brought out by the defenders. It is further remarkable that if a thing of this kind had really occurred it would almost certainly have occurred on some occasions at least before. Yet there is no evidence to show that such an occurrence ever took place. In these circumstances it seems to me that in a case of this kind a jury would hold that the defenders have entirely failed to give any reasonable explanation of the cause of the accident other than the existence of the crack, the non-discovery of which, and the continued use of the clasp after such crack is proved to have existed, form a serious fault on the part of the defenders. I may add that the pursuer was willing to have tendered additional evidence, if that were thought necessary, as to the cause of the accident suggested by the defenders being insufficient. I do not think it, however, necessary to involve them in this further expense, as there seemed to me sufficient materials in the proof to fix fault on the defenders on any reasonable construction.

As to the amount of damages, I have endeavoured to fix these having regard to the age of the pursuer's husband and the amount of his earnings for some time before the accident occurred. It is always difficult to gauge matters of this kind, but it seems to me that £150 is a sufficient and yet not excessive amount to award.”

The defenders appealed to the Court of Session.

Argued for them—The evidence showed that there was no fault. Even if there were fault, it was the fault of the engineman, a fellow-servant of the deceased, for whom the defenders were not responsible. The defenders were guilty of no personal negligence—indeed it was proved that the engineman was supplied with all the tackle he needed, and that any repairs he required to be done were done at once. The case fell under the rule of Wilson v. Merry & Cunningham, May 29, 1868, 6 Macph. (H. of L.) 84, 40 Jur. 486; Reid v. Bartonshill Coal Company, June 17, 1858, 20 D. (H. of L.) 13. The pursuer had not shown the person in fault to be unfit for the duty to which he was appointed.

Argued for pursuer—This was a case in which the defenders' machinery had entirely broken down while being used for the purpose for which they supplied it, and it lay upon them to explain the breakdown. They had to discharge the onus of showing they were not in fault— M'Aulay v. Buist & Co., December 9, 1846, 9 D. 245; Scott v. London Dock Company, 1865, 3 Hurl. & Col.596; Fraser v. Fraser, June 6, 1882, 9 R. 896; Walker v. Olsen, June 15, 1882, 9 R. 946. (2) On the question whether the fault was that of a fellow-servant for whom defenders were not responsible, the case was distinguishable from that of Wilson and others cited. In these cases the defenders had recognised their obligation to show that the person whose act had caused the mischief was a fit person for the work to which he had been put. Here the defenders had entirely avoided leading any proof to that effect. The onus was on them to do that when the pursuer showed, as had been done, that the accident had been caused by his negligence in not discovering the bad state of the clasp. A pursuer could be expected to show nothing more or better to prove incompetency than the fact that the person had caused the accident, and it then lay on the other party, and was eminently in a master's power, to show that the person was competent— M'Aulay v. Brownlie, March 9, 1860, 22 D. 975 (Lord Curriehill's opinion). The defenders were at least liable for the negligent system of inspection in their works, which had been proved. (3) In any

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event the defender Galt was liable. He was responsible for a thorough examination of the machinery, and for a careful examination into the conduct of those who had charge of any part of it. If he had discharged himself of this liability the accident would not have happened.

At advising—