Scottish Court of Session Decisions

Charles Rooney, quay labourer, Govan, raised this action against J. & A. Allan, shipowners, for £195, as damages for bodily injuries sustained through the fault of the defenders

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while working in their employment at the unloading of grain from their steamship “Manitoban.” The facts of the case as disclosed by the proof are fully given in the findings of the Sheriff-Substitute (Erskine Murray) as follow:—“Finds (1) that the steamship ‘Manitoban,’ belonging to defenders J. & A. Allan, was being unloaded at Plantation Quay on 3d March 1882; (2) that the lowest hold of the ‘Manitoban’ was filled with grain in bulk; (3) that a gang of twenty-two labourers, of whom pursuer Charles Rooney was one, were occupied there filling the grain into sacks, which were lifted to the deck by a wire rope in connection with a winch at the top, each lift consisting of five half-full bags, a weight of about 5 cwts; (4) that there may have been (though this is not quite clear) a slight list on the ship towards the quay, but that, if so, it was not of sufficient extent to be an appreciable cause of the accident that ensued; (5) that the lower hold at the bottom of the ship, below the orlop deck, is divided below the hatchways unequally by the tunnel containing the propeller shaft; (6) that as the grain was gradually removed, the tunnel became uncovered more at one end than the other, as the labourers were working at the end next the engine bulkhead, and had got to the floor at that point with a sloping face of grain up aft; (7) that while at that stage of the unloading it was quite possible for the men loading the bags to work under cover of the orlop deck, it seems that they were working in such a hurry that if they were to have the bags filled in time for each lift it was difficult to take that precaution; (8) that the cause of their working in such a hurry was that they were working by spells, one-half only working while the other half were resting; (9) that that system of working by spells was known to but not sanctioned by their employers; (10) that at that stage of the unloading, when a lift of bags was started from the bottom at one side of the tunnel, whenever it reached the top of the tunnel it naturally swung away to the other side; (11) that therefore, to prevent the lift catching under the orlop deck, it was necessary for the winchman to stop lifting for a minute when the lift had reached the top of the tunnel, to allow it time to steady itself, after which it could be pulled straight up; (12) that as the winchman could not see the lift, a labourer was stationed at the hatch-mouth to act as signalman, whose duty it was to tell the winchman when the bags had reached the top of the tunnel, that he might stop the winch; (13) that to lengthen the wire rope, a chain had been added at the lower end, to which the bags were hooked on; (14) that the evidence, taken altogether, shows that this chain as a whole was sufficient and suitable for the purpose for which it was used; (15) that as regards the particular link that broke, while the evidence is very contradictory, it is clear that it broke at the welding, and, on the whole, that the appearance of the break was not satisfactory, tending to show that the link in question must have been abnormally weak, though able to resist any usual and ordinary strain; (16) that it is not the practice to test such small chains at Lloyds; (17) that defenders’ storeman, M'Tavish, was in the habit of examining all such chains when they came in, and had examined the chain in question when it came in last; (18) that on the day in question a lift of five bags was being raised from the opposite side of the tunnel from that on which pursuer was working; but when it reached the top of the tunnel, the signalman on deck neglected to warn the winchman till it had swung under the orlop deck, and had in its ascent jammed under the orlop deck; (19) that the signal not being thus given till it was too late, a very severe strain was thrown upon the chain, which broke, and the lift fell down into the hold from a height of 7 or 8 feet, and struck pursuer, who was working straight below instead of being under shelter of the orlop deck, on the left shoulder, the left side of his neck, the left side of his chest, and the left side of his body; (20) that he was severely injured, his muscles having been much bruised, and he suffered severe pain and received a severe nervous shock; (21) that he was sent to the infirmary, was two weeks in bed, able to go about in six weeks, and six months may be allowed for his entire recovery; (22) that his wages at the time of the accident were about 25s. a week.”

The defenders denied fault on their part, and maintained that the snapping of the chain was due to the strain put upon it by the contact of the bags with the 'tween deck, which was caused by the negligence of a fellow-workman of the pursuer, viz., the man on the platform immediately above the hatchway, whose duty it was to steady the bags and tackle before they were drawn up, and who neglected to do so. They also maintained that the accident was caused by the fault of the pursuer in not having, as it was his duty to do, taken shelter under the orlop deck when the bags were ascending.

They pleaded—(1) that the accident was caused by the fault of a fellow-workman of the pursuer's; (2) contributory negligence on the part of the pursuer.

The Sheriff-Substitute found, in addition to the findings of fact quoted supra, “that the main cause of the accident was the neglect of a collaborateur of pursuer's, the signalman, to warn the winchman in time that the lift was at the top of the tunnel, in consequence of which it caught under the orlop deck; that, on the whole, another cause of the accident must be held to have been the abnormal, though not very excessive, weakness of the link that broke through a latent defect in the welding; that another direct cause of the accident was the contributory negligence of pursuer in working in the open space under the hatch when the lift was going up, when he could have been, if he chose, in shelter under the orlop deck; that therefore in law the defenders are not responsible in damages to pursuer for the result of the accident: Therefore assoilzies defenders from the craving of the petition,” &c.

“ Note.—It is so clear that the main cause of the accident was the neglect of the signalman, and that the signalman was a collaborateur of defenders, in such a subordinate position that the ‘Employers Liability Act’ no way affects the legal position of parties, that nothing more need be said on this head.

But the question of defenders' liability in respect of the condition of the link that broke is a much more difficult matter. The evidence is exceedingly contradictory. The Sheriff-Substitute might have, on the whole, been unable to find that any liability in respect thereof attached to defenders, had it not been for the fact that a

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proper examination of the link has been rendered impossible by the act of defenders' superintendent stevedore, who flung it into the Clyde. This very indiscreet act shifts the onus of proving its condition upon the defenders, whose chief official thus excluded the possibility of a scientific examination. The Sheriff-Substitute therefore, on this footing, is obliged to hold that on this point the result of the evidence is adverse to the defenders.

But the fact that the pursuer was guilty of contributory negligence is patent. There was plenty room at the time for him to have been in shelter under the orlop deck, and if he chose, whether from individual recklessness, or from the result of a system adopted by him and the other labourers and not sanctioned by their employers, to give themselves the solace of a rest and a pipe between spells of work—to work needlessly in a position of danger—he is responsible for the consequences. The pursuer also tried to prove that defenders were in fault because, there being a slight list, they had no man at the orlop deck to guide off the bags, but the evidence shows that the list, if any, was very slight, and the diagrams show that it would not have brought the bags under the orlop deck. In such circumstances, no such man at the orlop deck was necessary.”

On appeal the Sheriff (Clark) adhered, for the reasons assigned by the Sheriff-Substitute, and under reference to the following note.

Note.—According to the view I take of this case, it is not necessary to inquire what was the actual strength of the chain in question, for the real cause of the accident was the fault of the signalman, who so acted as to cause a strain to the chain which it could not and was never intended to bear. It is perfectly clear that no chain of the ordinary kind would have resisted the strain thrown upon it by the bags being swung under the deck. It may indeed be said that a chain cable of sufficent strength to hold an anchor would not have given way under the strain in question; but apart from there being no obligation on the part of the defenders to provide a chain of this kind, and the obvious inconvenience which would arise from the use of such a chain, it seems clear that if such a chain had been used, it would, instead of breaking, have torn up the deck under which the bags had swung, and in such circumstances would have produced equally serious results to those engaged below. The real cause therefore of the accident seems to have been the fault of the signalman. But if that be so, I see no ground, either at common law or under the recent Act, to subject the defenders in liability. The signalman was not their superintendent, but was a co-workman engaged with the others who was acting as signalman only for the time, and was in the habit of taking his turn with the rest as occasion required. Such a person is not a superintendent under the Act, nor is he a person placed in authority whom the other workmen were bound to obey.”

The pursuer appealed to the Court of Session, and argued—The onus of proving the sufficiency of his tackle was on the master, which the defenders here had failed to discharge— Walker v. Olsen, June 15, 1882, 9 R. 946. If the master himself be in fault, he cannot excuse himself by saying that another servant was in fault also— Fraser v. Fraser, June 6, 1882, 9 R. 896; Ward on Master and Servant, 781.

The defenders replied—It was only when tackle gave way in the ordinary course of work that the presumption was against the employer. Here there was more than that. — Walker v. Olsen, supra.

At advising—