Scottish Court of Session Decisions

James Reid, crofter, Graystone, in the parish of Skene and county of Aberdeen, raised the present action against Alexander Mitchell, crofter, Lyne of Skene, in the same parish and county, concluding for £300 for bodily injuries sustained by him. He averred that the injuries were caused by the defender having wilfully, recklessly, and carelessly seized him and pushed him off a stack of straw, which they were then engaged in building, to the ground, whereby he fell on his head and sustained the injuries libelled.

The defender stated in defence that he accidentally knocked against the pursuer and both fell off the stack to the ground. There was no intention on his part to push the pursuer off.

A proof was led at which the following facts appeared—Pursuer, defender, and two other men were engaged in building a round straw stack about twelve feet in diameter with straw from a steam threshing-machine which was being worked beside it at the time. At the time of the accident the stack was about five feet in height, at least a man could look over it. The straw was being forked up by men from the ground in large quantities, so that it occasionally came over the men and covered them. Defender began larking, and the other two men joined him by throwing each other down in the straw. Pursuer, whose duty it was to go continuously round the stack and keep the straw out to the circumference did not join in the fun, but seemed to enjoy it. According to the evidence of one of the other men on the stack, defender just put his hands on pursuer's shoulder and pursuer slipped over the side. Witness thought he did so just to keep up the fun. Pursuer deponed that he heard defender say, just before he ran at him, “I'll ca' James Reid down,” but this was not heard by any of the others, and was denied by the defender. Defender said he was rising up from some straw which had been thrown over him by the forkers and could not see for it when he accidentally knocked against the pursuer. Pursuer fell on his head and sustained concussion of the brain and injury to the spinal cord. Defender also fell off the stack. It appears from the evidence of several witnesses that the frolic was no greater than was usual on such occasions.

The Sheriff-Substitute ( Dove Wilson) pronounced this interlocutor—“Finds in fact that on the occasion set forth in the petition the pursuer was injured through the fault of the defender: Finds in law that the defender is liable in damages; assesses the same at the sum of fifty pounds sterling, and decerns against the defender for that sum.

“ Note.—[ After narrating the facts]—Unless it can be said that the injury was the result of a pure accident, the defender must be held responsible. I do not see how it can fairly be attributed to pure accident. It is undoubted that the defender had no intention to injure the pursuer, and that nobody was sorrier for what happened than he was. His conduct does not show lack of proper feeling on his part. Nevertheless, the injury could easily have been prevented had he exercised ordinary care, for in the exercise of ordinary care the defender would not have interfered with the pursuer. It seems to me, therefore, impossible to absolve the defender from the consequences of his indiscretion. A thing which ordinary care could have prevented cannot be called a pure accident. To take any other view would be to throw the whole consequences of the defender's fault upon the pursuer, and unfortunately, even though the pursuer does get such compensation as the law can award, the consequences upon him will be very serious.

I have been somewhat reluctant to come to this conclusion, the defender having had no bad motive, and his fault not having been great, but I do not see that any other result would be equitable.”

On appeal the Sheriff ( Guthrie Smith) pronounced this interlocutor—“Recals the said interlocutor: Finds it proved that on the occasion libelled, while the pursuer was engaged with some others in building a stack of straw, he was unintentionally pushed off the stack and fell and injured himself, but not through the fault of the defender: Therefore assoilzies the defender from the conclusions of the action.

“ Note.—This is a lamentable accident, arising out of the rough play which sometimes goes on in the farmyard in the building of a straw stack, but much as everyone must sympathise with the victim of the occurrence, there was plainly no

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wish to do him any injury, and I cannot, on a review of all the facts, agree with the Sheriff-Substitute that the defender is liable in damages. The distressing feature in the case is that the injuries sustained by the pursuer are so serious, that even if the defender were liable, any adequate compensation would be wholly beyond his income, for like the pursuer he is but a farm labourer. The Sheriff-Substitute has decided against the defender on the ground that ‘a thing which ordinary care could have prevented cannot be called an accident.’ But it seems to me that this way of stating the question is in the circumstances not wholly accurate. When an injury is done in the course of play, we say in popular speech that it was accidental, because unintended. But the legal meaning is, that although the party sought to be charged has been guilty of what in other circumstances, would prima facie be an assault or trespass to the person, his excuse lies in the fact, that as both consented to the frolic, each of them must be taken to have assumed the risk of such chances and misadventures as might occur in the course of it, unless the other was guilty of some excess which increased the risk so undertaken beyond what fairly and reasonably might have been expected. If, for instance, he gave way to temper, or took an unfair advantage, or used undue force, or conducted himself with a reckless disregard of consequences, he will be responsible, but not otherwise. As was said in the case of Rylands v. Fletcher, L.R., 1 Ex. 287—‘All the cases in which inevitable accident has been held an excuse for what prima facie was a trespass can be explained on the principle that the circumstances show that the plaintiff had taken the risk upon himself.’ So far as I am aware there is no case directly applicable in our own law, and none was cited in the argument. But in an American case there is, I conceive, much good sense in the way in which the question was presented to the jury. It was an action for an assault, to which the defence was that it was done in play. The Judge ruled, ‘That if the defendant intended to do no bodily harm, and the parties were lawfully playing by mutual consent, and the act was no other than the plaintiff had reason to suppose would be done in such play, the defendant was not liable; that whether the force used was reasonable was not to be determined by the results, but from the evidence of the force, and the circumstances and nature of the act; and that if the defendant intended to do the act, and the act was unlawful and unjustifiable, and caused bodily harm, the plaintiff could recover. Held that the defendant had no ground of exception.’— Fitzgerald v. Cavin, 110 Mass. 153, cited in the American edition of Underhill on Torts, p. 207.

There is some reason for saying that as the pursuer, being busy with keeping the stack in shape, was not taking an active part with the other men who were pushing and tumbling each other about, a distinction may be made between him and the rest. The effect of this would be to make them all liable in the claim which is now preferred. With some difficulty I have come to think that in the circumstances any such distinction cannot fairly be taken. They were all engaged in a common work; the pursuer did nothing to stop the larking, and showed no objection to it. In fact they were all consenting parties, no one apprehending for a moment that any harm was likely to arise. In the next place, I can find nothing in the proof to show that ‘the defender ran at the pursuer,’ as the Sheriff-Substitute infers, or that the pursuer is right in his impression that he purposely knocked him off the stack, saying at the time, ‘I'll ca' James Reid down.’ These words were not heard by any of the other witnesses, and the defender denies that he said so. He admits he came against him, how he cannot tell, but when the pursuer slid off the stack the defender slid with him, which shows, I think, that this, which was the primary cause of the injury sustained, was neither intended nor anticipated. So standing the evidence, I am of opinion that the defender must be acquitted of blame or responsibility.”

The pursuer appealed to the Court of Session, and argued—If he had engaged in the play, then he took the risk of an accident, and had no case; but it was proved that he took no part in it. He was therefore in the position of a passer-by on the street who was hurt by a person engaged in a game or a frolic there, and who became legally liable for the injury caused by him— James v. Campbell, 5 Carrington & Payne, 372.

The defender replied—The pursuer had failed to prove any intention on the part of the defender to push him off the stack. The occurrence was either a pure accident or an accident caused by one player to another.

At advising—