Scottish Court of Session Decisions

This was an action raised at common law and alternatively under the Employers Liability Act 1880 by James Bowie against Robert Rankin & Company, millwrights and engineers, Glasgow, for the sum of £500, or under the alternative conclusion £234, in respect of severe injuries which he alleged he had sustained while in their employment. The facts of the case were as follows—The pursuer, who was a skilled workman, had been employed all the night of 29th April 1885 in boring holes in a screw propeller-blade which was to be removed from the foundry next day on a four-wheeled bogie; over a portion of the floor of the premises over which the bogie was to travel there was an uneven depression, which, however, was filled in with slips of wood covered by a thin covering of iron. The bogie was to be drawn forward by a number of men. The operations of removing the blade were conducted under the superintendence of the foreman William Hornal. The weight of the blade was 2 tons, and the bogie measured 5 feet by 2 feet 3 inches. Owing to the unevenness of the ground Hornal thought it advisable to keep the chain of the block and tackle whereby it had been removed from the boring machine on to the bogie still round the propeller until the bogie should have travelled over the iron covering plate, and the chain from above therefore remained, being kept, however, somewhat slack. He ordered the pursuer to go behind the bogie and to take an iron pinch to pinch the wheels of the bogie over the plate from behind. He then called to the men to heave away; when, however, the bogie reached over the edge of the iron plate, the slips of wood under it gave way under the weight of the blade, with the result that the bogie ran forward somewhat. The propeller-blade, being attached to the joists, swung back in consequence and jammed the pursuer's leg against the cog-wheels of the boring machine, inflicting a compound comminuted fracture.

The pursuer stated two grounds of action:—First—“(Cond. 8) The said injuries were caused by reason of the said William Hornal's fault and negligence in ordering the men at the rope to pull away the bogie before the block and tackle had been detached from the propeller-blade, and while the pursuer was, in obedience to the foreman's orders, standing behind the bogie. The foreman could easily have seen that the result of causing the bogie to be pulled would be to remove it from beneath the blade, and make the latter swing back on the chain against the pursuer.” Second—“(Cond. 9) The accident was also caused, or materially contributed to, by reason of the said defect in the floor of the workshop, which defect arose from, or had not been discovered or remedied owing to the negligence of the defenders, or of those for whom they are responsible. Had the floor been in a proper condition it would have been unnecessary for the pursuer, in obedience to the foreman's orders, to place himself in a position of danger between the propeller-blade and the boring machine in order to ease the wheels of the bogie.”

In defence it was stated that Hornal was careful and experienced, and his conduct usual and proper, and that the injury to the pursuer was accidental.

The proof disclosed the facts above stated.

The Sheriff-Substitute (Spens) pronounced this interlocutor:—“Finds that the pursuer was, on 30th April 1885, in the employment of defenders: Finds that on that day he was injured by a certain propeller blade, which at the time had been placed upon a bogie for the purpose of being removed from the defenders' premises, and thereafter being raised by means of a certain block and tackle in such a way as to leave the support of the said bogie, coming in contact with his right leg and jamming it against the wheel of a certain boring machine: Finds the operation referred to was being conducted under the personal superintendence of the defenders' foreman William Hornal: Finds, under reference to note, that while the accident in question was partly at least attributable to an error in judgment or miscalculation on the part of the said William Hornal, negligence or culpa is not proved against him: Finds, separatim, and under reference to note, that defenders are not responsible under the first sub-section of the first section of the Employers Liability Act: Therefore finds, as matter of law, that defenders are not liable under the Employers Liability Act; as also that there is no valid ground of action at common law; sustains accordingly the defences, and assoilzies the defenders.”

“ Note.—The way in which I understand the accident to have come about was as follows:—There was a certain unevenness in the vicinity of the boring machine at which the pursuer was working. Between six and seven in the morning of 30th April the pursuer, who had been working all night boring holes in the propeller-blade, had completed the job, and the propeller-blade was ready to be removed from the premises. A bogie was accordingly brought alongside the machine, and under directions of the defenders' foreman the blade was swung off the machine on to the bogie by a block and tackle. Over the unevenness or hollow in the floor to which I have referred an iron plate was put, and in consequence of this, so far as I can understand, Hornal thought it prudent to keep a chain connected with the block and tackle round the propeller-blade until the bogie was safely over this iron plate. He ordered the pursuer to take an iron pinch to pinch the wheels of the bogie, and in order to do this I think the pursuer had necessarily to get on the top of the boring machine. The place, which I myself inspected, where the boring machine is situated, is a somewhat contracted one, and the top of the boring machine is not far from the ground. The theory of the foreman was, I believe, to support the propellor-blade over the uneven place with the block and tackle, and at the same time to pinch on the wheels of the bogie over this same place. He cried to the men to heave away, his idea being that it would to a certain extent rest on the bogie, and then, whenever the bogie was past the uneven place, to remove the connection between the block and tackle and the blade. What, however, appears to have happened, was that the weight on the bogie being removed by the block and tackle, the bogie was shot on by the pinching, and the propeller-blade swinging in the air jammed the pursuer's right leg in the way detailed in the above interlocutor.

Now, as I understand, there are two arguments on which liability is alleged—(1) that the

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accident happened through the fault of Hornal; (2), or otherwise, that it happened through a defect in the ways, &c., for which defenders are said to be responsible under the first sub-section of section one of the Employers Liability Act, if not at common law. I think it will be convenient to take the second of these points first. Now, the proof goes to show very much the same state of matters as to the floors of iron foundries of the kind, which was brought out in the case of Seeley v. Jackson, Oct. 18, 1882, 20 S. L. R., 11. (It is curious, I may note here, that the case referred to, which is one of general importance in connection with questions of employers’ liability, does not appear in the official report.) The circumstances of that case were very analogous to those of the present case, but the operation whereby injury had resulted was under the superintendence of one of the partners. In the report it is stated that a number of workmen were engaged in conveying a large iron casting from the moulding-room of the defender's iron foundry to the courtyard. ‘The floor over which the casting had to be conveyed to the yard was somewhat rough and uneven, but not more so than is common in moulding shops of the kind. The principal depression was one near the door, and on it iron plates had been laid to facilitate the passage of the bogie upon which the casting was being removed. This depression was about 2 feet broad, and at the deepest part was 3 or 4 inches in depth.’ The report is not very full, but I gather from the statement of facts and the argument that it was in consequence of the depression that the bogie stuck fast, and ultimately broke down, causing injury to one of the workmen engaged. In that case the Court held that there was no fault on the part of defenders in connection with the ways so as to infer liability, and I take it that equally this ruling must be held to apply here, either under the first sub-section of the first section of the Employers Liability Act or at common law. At common law I imagine that any risk caused by the known unevenness of the floor was one which must be held to have been accepted as incident to the employment. In this case, however, I do not think the accident can be said to have happened in consequence of the depression in the floor. The accident, in point of fact, happened through Hornal taking certain precautions, as he considered them, to obviate any risk or difficulty in the removal of the blade, in consequence of the unevenness in the floor. (2) This accordingly brings me to the second point, Was Hornal guilty of negligence? If guilty of negligence, there is no doubt that Hornal is a person for whom defenders are responsible in the sense of the Employers Liability Act. I think there was a miscalculation or error of judgment in putting the pursuer in such close proximity to the propeller-blade when the order was given to hoist it with the block and tackle. Hornal miscalculated either the effect of his orders, or made a mistake as to the amount of force which his men would put forth, while at the same time the effect of pursuer's pinching was not sufficiently considered. It appears to me, however, having regard to the principles given effect to, and the observations made in M'Manus v. Hay, 17th Jan. 1882, 9 R. 425, as well as the case of Seeley v. Jackson above referred to, that his error of judgment or miscalculation is not such as to make the defenders legally responsible. In the first-named case Lord Young said—‘But still there must be negligence, and such negligence as would infer legal responsibility for the consequences,’ and it was held that there was no such legal responsibility. In this case the pursuer M'Manus had been injured through what was plainly at all events an error of judgment on the part of the foreman, who had elected, at the time the accident happened, to work as one of the labourers. So also in the case of Seeley v. Jackson Lord Young said—‘Our law undoubtedly is that in every contract between employer and workman there is an implied term that the workman takes the risk of all ordinary accidents attending a more or less risky trade, leaving a claim for compensation only in circumstances where the accident is attributable to culpa.’ Now, the evidence not only goes to show that Hornal was a competent and careful foreman, but that he was devoting his full attention to the job in hand to the best of his ability, and, in point of fact, I think it may be said that the accident really came about through over-carefulness. While, however, I arrive at the conclusion that liability has not been established, I certainly think that it is not a case for awarding expenses.”

The pursuer appealed, and argued—He had succeeded in establishing negligence in two particulars—1st, Hornal should never have allowed the bogie to go beyond the length to which the propeller-blade while attached to the joists by a cable could reach, and that was admittedly ten inches. It should either have been wedged before the bogie was set in motion, or if it was set in motion, it should only have been as far as the block and tackle could reach. In any event the tackle should have been loosened out as the bogie advanced. The case relied on by the Sheriff-Substitute as favourable to the defenders— Seeley v. Jackson, October 18, 1882, 20 Scot. Law Rep. 11—was of quite a different character from this. In it one of the brackets of the wheel of the bogie gave way owing to latent defect, which it was held the employers could not discover. In the present case the foreman admitted that he knew that the operations were likely to be dangerous when the bogie reached the uneven ground; second, the depression in the floor ought to have been filled in before the dangerous operation was undertaken.

The defenders replied—1st, It was an impossibility to pay out cable while the bogie was moving as the machine was too heavy; second, the evidence showed that the operations were those usually adopted in the foundry, and were just those very operations which had been conducted in Seeley's case. There was, then, no negligence proved.