Scottish Court of Session Decisions

Philip Maguire was employed by the Val de Travers Company, who had contracted with Messrs Wylie & Lochhead to lay with concrete some buildings in course of erection by them in Buchanan Street, Glasgow. Lewis Russell was contractor for the plumber and gasfitter work connected with the buildings. Maguire was injured, as he alleged, by being struck on the head by a hammer which was let fall from a skylight six storeys high by a man who was in Russell's employment. He raised this action of damages against Russell, on the averment that the accident was caused through the fault or negligence of one of his workmen, and pleaded—“The pursuer having suffered loss, injury, and damage through the fault or negligence of the defender, or of those for whom he is responsible, is entitled to reparation therefor.”

The defender pleaded—“(1) The pursuer not having been injured through any fault or negligence of the defender, or the fault of anyone for whom he is responsible, the defender is entitled to be assoilzied.”

The Sheriff-Substitute ( Lees) pronounced this interlocutor:—“Finds that the averments of the pursuer do not disclose a case under which the defender is liable to him for the injuries alleged by him: Therefore assoilzies the defender from the conclusions of the action, and decerns.

“ Note. —The case for the pursuer is that his employers, the Val de Travers Company, have a contract with Messrs Wylie & Lochhead for laying with concrete the buildings in course of erection by them in Buchanan Street. The defender,

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he says, is the contractor for the plumber and gasfitting work of these buildings, and he alleges that on 14th January last, whilst he was working for his employers at the buildings, he was injured by the negligence of a person who was working at the same buildings in the defender's service.

“The question thus is, assuming these averments to be true, is the defender liable in compensation to the pursuer? or, putting it more generally, where the execution of a work has been let out to contractors, have the workmen of one contractor recourse against another contractor for injuries caused by the fault of the latter's servants?

“The point at issue has not been the subject of judicial decision, so far as I can find, in the court of any country, but there is an immense body of decisions which bear more or less directly on it, and there are various dicta to be found closely in point in some of these decisions.

“The principle on which cases of this kind used to be decided was that of collaborateur, But as has been pointed out in the House of Lords and in the Court of Session, the doctrine of collaborateur is not the rule itself, but only an example of what is truly a wider and more intelligible principle. That principle has been enounced as being, that where a workman becomes one of many working in a common organisation towards a common end, he accepts all risks naturally incident thereto, and cannot enforce liability for injury except against the person who caused it. The most authoritative case on the point in recent years is that of Woodhead v. The Gartness Mineral Co., February 10, 1877, 4 R. 469, in which all the important cases prior thereto in Scottish and English legal annals are carefully considered. In that case the decision was pronounced by a Court of Seven Judges. One of these, the Lord Justice-Clerk, in a detailed resume of the law, dissented from the judgment, and his opinion is thought by Roberts and Wallace in their treatise on the Liability of Employers (p. 70) to be the correct view of the law. See also MacDonell's law of Master and Servant (p. 213) to the same effect. In the English Courts there are various cases, but in especial Turner v. The Great Eastern Railway Co., 33 Law Times 431, and Rourke v. the Whitemoss Colliery Co., 2 C.P.D. 205, which seem to imply that the English Courts do not adopt the view taken by the Court of Session. But it is my duty to follow the decision of the latter Court. And I have also to point out that the prior case of Gregory v. Hill, December 14, 1869, 8 Macph. 282, is expressly overruled by it, and that the Lord Justice-Clerk, who, as I have said, strongly dissented from the judgment to be pronounced, both at the close of the case and in the subsequent case of Wingate v. The Monkland Iron Co., 12 R. 91, has, while not conceding that the view he had stated was erroneous, acquiesced in the recognition of Woodhead's case as binding on Scotch lawyers. In Wingate's case the decision pronounced in that of Woodhead was accepted by Lords Young, Craighill, and Rutherfurd Clark, who did not take part in deciding it, and therefore the law laid down in the case of Woodhead may be said now to be held by ten of the Judges of the Supreme Court as the law to be enforced in Scotch cases.

“It seems to me that several of the cases referred to as either antagonistic to it or as being exceptions from it, are easily explained on the view that in them there was no common organisation for a common object on behalf of some person. I mean such cases as Wyllie's and Adam's, and several of the English cases, where the party injured and the party injuring came only casually in contact. And, on the other hand, there are cases such as those of Morgan v. The Vale of Leith Railway Co., L.R., 1 Q.B. 149; and Lovell v. Howell, 1 C.P.D. 161—where the English Courts incline to the more salutary and intelligible principle laid down by the Court of Session.

“Now, the principle to be deduced from Woodhead's case is that the maxim respondeat superior does not obtain, not merely where persons are collaborateurs, but also where the injuries received are from risks naturally incident in the common organisation for the common object for which the injured person was working. I had intended to quote from the opinions of the Judges as showing that this is the doctrine on which their decision was based, but the passages to which I proposed to refer parties will be found printed at p. 95 of the twelfth volume of Rettie's reports, in the note to Mr Sheriff Birnie's decision in Wingate's case. It will therefore probably be more convenient that I should simply refer parties to the sentences there quoted, and I do so the more readily that the admirable judgment of the Sheriff-Substitute elicited the cordial approval of Lord Young when the case came before the Supreme Court.

“The principle of the decision in Woodhead's case seems to me to rule the judgment that must be pronounced in the present case. I am quite aware that Lord Bramwell in 1877, in his evidence before the Committee of the House of Commons (quoted at p. 210 of Fraser on Master and Servant), stated a view directly adverse to that which I am presently taking. But as against it I may refer to the dicta of Lords Gifford and Shand in Woodhead's case. The former Judge points out (at p. 503) that it is possible that persons may be fellow-servants or collaborateurs in the same work without being servants of the same master. And the latter, in a judgment which is perhaps the more valuable, as based to a large extent on reasoning from principle, expresses an opinion which seems to me conclusive of the present case. His Lordship says at p. 512—“It appears to me that where a number of persons are engaged, though in different capacities and departments in the common work of building a house or a ship, or in any similar undertaking, where from the very nature of the work they have duties to each other, although the employment is only indirectly from the same source, the particular class of workmen having their direct and immediate employment from their own master, there is yet such a bond of union among all of them as makes them one family or establishment, and precludes one of them, if injured, from imposing responsibility on the master of another workman, as a stranger if injured might do.” If it is not presumptuous of me to say so, I think the doctrine laid down by his Lordship, and which seems to me legitimately to flow from the principle on which the decision in Woodhead's case was based, is alike broader, fairer, and more practicable

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than that which is urged on the pursuer's behalf. In large undertakings, as, for example, the construction of bridges, and of tunnels, of ships, of prisons, of railway stations, and other public buildings, economy, rapidity, and thoroughness of workmanship alike recommend the distribution of the work amongst many contractors; and if any one of these was to be liable for injury by one of his workmen to any of the numerous persons who come to the same work daily, not as strangers, but as workmen for a common object, and whose natural interest and duty are to aid one another, and to work into one another's hands as much as possible, I doubt if the result would be either fair or in the end beneficial.

“The greater the piece of work, the more reluctant a contractor would be to run the risks to which he would then be exposed. And so far from the work being carried on mutually and simultaneously, either each contractor would want that he should be the only employer whose workmen were engaged at the time, or else the undertaking would be split up into separate and almost hostile camps, in which each workman would, for his master's sake, be averse to giving any aid, or doing any work which might possibly result, even with the best care, in injury to the workmen of some other contractor. I cannot think that with such a question common control has anything to do; and, as I read the opinions of most of the Judges who decided the cases of Woodhead and Wingate, this element, though it may strengthen an employer's case, is not essential to the soundness of his defence. I therefore answer in the negative the question which is raised by this case.”

The pursuer appealed, and argued—The case did not fall to be decided by Wingate v. The Monkland Iron Company, November 8, 1884, 12 R. 91, inasmuch as there was here no common organisation embracing the injurer and injured. It rather fell to be decided in accordance with Wyllie v. Caledonian Railway Company, January 27, 1871, 9 Macph. 463, in which, as here, there was only a casual relation between the injured man and the man in fault.

The defender in reply relied on the case of Wingate as following Woodhead v. The Gartness Mineral Company, February 10, 1877, 4 R. 469, in support of his contention that the averments disclosed a case of common employment, and that the action was therefore irrelevant.

At advising—