Scottish Court of Session Decisions

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Cite as: [1885] ScotLR 22_708, [1885] SLR 22_708

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House Second Division.

[Sheriff of Lanarkshire.

Wednesday, June 10. 1885.

22 SLR 708

Gorman

v.

Morrison & Son.

Subject_1Reparation
Subject_2Master and Servant
Subject_3Common Employment.
Facts:

A labourer employed by a railway company in packing sleepers in a goods-sheds brought an action of damages against a firm of slaters who had contracted to roof the shed, in respect of injuries through the alleged negligence of the slaters' servant in letting a number of slates fall upon him. Held that these allegations did not disclose a case of common employment, and that the action was therefore relevant.

Headnote:

James Gorman, a labourer in the employment of the Caledonian Railway Company, was engaged in packing sleepers at a goods-shed at Spring-burn, and John Morrison & Son were at the same time roofing the shed under a contract with the railway company. The slates for the roof were pulled up by means of a rope and laid on a plank, and thence taken to the slaters by a labourer in the employment of the contractors. Gorman was injured by the fall on him of some slates which were being raised. He raised this action against Morrison & Son, alleging that the fall was owing to the carelessness of their men. He concluded for £250.

The defenders pleaded, inter alia—“The pursuer having been injured through the fault of a person or persons in a common employment with him, is not entitled to damages.”

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 injuries alleged by him: Therefore assoilzies the defender from the conclusions of the action as laid.

“ Note.—The case for the pursuer is that while he was working as a labourer in the service of the Caledonian Railway Company, at their goods-shed in Springburn, on 14th October last, he was injured by the fault of a person who was working in execution of a contract that the defenders had for the roofing of shed. The case is in principle so similar to that of Maguire v. Russell [reported supra], presently pending in this Court, that I ordered the two cases to be argued together; and if the decision I have given in that case be correct, the reasoning is sufficient for exonerating the defenders in
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the present case. But I may further point out that if the argument for the pursuer be sound, it would lead to this anomalous result—that if he had injured the slater, as well as the slater injured him, he would have a remedy against the slater's master, while the slater would have none against his. That, it seems to me, would not be a rational result; and I therefore think that in this case, even more conclusively than in that of Maguire, the principles to be deduced from the decision in Woodhead's case are adverse to the contention urged for the pursuer.”

The pursuer appealed, and argued that this case fell to be distinguished from the case of Woodhead v. The Gartness Mineral Co., 10th Feb. 1877, 4 R. 469. The injurer and injured were here strangers. There was no common organisation between them. The Sheriff-Substitute's judgment, then, must be recalled.

At advising—

Judgment:

Lord Craighill.—I have listened to the arguments adduced for both parties in this case, and I am not inclined to adhere to the judgment which the Sheriff-Substitute has pronounced. While pursuer was engaged in packing sleepers at a goods-shed belonging to the Caledonian Railway Company he was severely injured by the falling on him of a number of slates which were being carried to the roof of the shed by the defenders, who had a contract with the railway company to roof the shed. The question then under these facts is—Is the pursuer to be considered as connected with the organisation which was engaged in the roofing of the shed? If he is, then the Sheriff-Substitute is right in holding that the case falls to be ruled by the case of Woodhead. His views are thus stated in the note to the previous case—( Maguire v. Russell)—“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.” Now, it appears to me that there was no common organisation at all between the contractor's servants engaged in roofing the shed, and the pursuer, who was engaged in his ordinary employment of the railway company. I am of opinion, then, that the case of Woodhead does not apply. I think when the facts become known that there will be found some similarity between this case and the case of Wyllie v. Caledonian Railway Co., 9 Macph. 413. But without saying more as to what may be seen when the proof is held, it is sufficient, I think, to say that the Sheriff-Substitute's interlocutor finding that there is no relevancy in the pursuer's averments should be recalled.

Lord Kinnear—I agree. The pursuer's case does not disclose any common employment.

The Lord Justice-Clerk concurred.

Lord Young and Lord Rutherfurd Clark were absent.

The Court sustained the appeal, recalled the judgment of the Sheriff-Substitute, and appointed the pursuer within eight days to lodge issues for the trial of the cause.

Counsel:

Counsel for Pursuer (Appellant) — Rhind— A. S. D. Thomson. Agent— William Officer, S.S.C.

Counsel for Defenders (Respondents)— Guthrie. Agents— Webster, Will, & Ritchie, S.S.C.
1885