Scottish Court of Session Decisions

This was an action of damages (which was ultimately insisted in only under the Employers Liability Act 1880) at the instance of Cook, a labourer, against Alexander Stark, the owner of a quarry at Kilsyth, for the loss of his left hand, which was blown off above the wrist while he was helping to extract an unexploded charge of powder from the rock. The pursuer having finished loading stones into a canal boat belonging to the defender was told by the defender to apply to William Stark, the manager of the quarry (who was a brother of the defender's), for instructions as to what to do next. The manager, William Stark, ordered him to go and take the place of a man M'Innes who was assisting another brother of the defender, James Stark, in quarry work. He found them extracting from a bore a charge of powder which had missed fire, and told M'Innes to go and work at another hole at which the latter had been previously engaged, and proceeded to assist James Stark. They poured water into the hole, in the depth of which the gunpowder was packed, and the pursuer held in the bore a steel jumper which James Stark struck on the head with a hammer in order to dislodge the “stemming.” The charge exploded under the blows and the injury in respect of which the action was raised took place. The averments on which the action was laid were to the effect that the operations were delicate and dangerous, and not such as should have been entrusted to a man like the pursuer, who was ignorant of the danger he ran, and of the proper methods and tools necessary for the work; that the tools for the removal of the charge ought to have been of copper and not of steel, which on its coming into contact with the rock was liable to cause sparks to rise and ignite the powder.

The defence was (1) that the pursuer and James Stark had ultroneously, and without the knowledge and authority of the manager, entered upon the performance of the operation; (2) that the pursuer was well experienced in quarrying operations, and knew that he was doing wrong in using the steel jumper; and that in any view he was guilty of contributory negligence.

The defender pleaded—“(3) The pursuer having undertaken the said work without the authority and without the knowledge of the defenders or their foreman, the defenders are entitled to absolvitor. (4) The pursuer having engaged in work that was obviously dangerous, he is barred from complaining of the consequences or suing on account thereof. (3) The pursuer's injuries being attributable to his own fault, he is barred from suing the present action. Separatim. he is barred by contributory negligence.”

The facts which in the opinion of the Court were established are detailed in the findings of the Sheriff ( Muirhead) infra.

The Sheriff-Substitute ( Buntine) found—“(3) That this work was not dangerous if conducted by a skilled person, and that the said James Stark had sufficient experience and skill to be safely entrusted by the manager therewith; (4) that while the said James Stark and the pursuer were engaged in boring out this hole the gunpowder in the hole exploded, and inflicted the injuries to the pursuer which are described on the record; (5) that the explosion was caused by the use of a steel-jumper instead of a copper instrument, in extracting the shot; (6) that the manager, William Stark, gave no instructions to them to use this instrument, and that it is not proved that he was aware that the said James Stark was using the same when he instructed the pursuer to go and help him in his work; (7) that the said James Stark and the pursuer were, or ought to have been aware, that it was dangerous to use this steel instrument in their work, and were guilty of negligence in so doing; (8) that it is not proved that the defenders failed in their duty to supply pursuer and the other workmen with proper tools for conducting their work, or that the manager, the said William Stark, was not well qualified for the position of manager of the quarry.” He therefore found in law that the defenders were not liable, and assoilzied the defender.

On appeal the Sheriff ( Muirhead) found as follows—“Finds in fact (1) That the pursuer on 15th July 1885 was a labourer in the service of the defender Alexander Stark in his quarry at Auchinstarry, and in receipt of a wage of 21s. a-week; (2) that the manager of said quarry was William Stark, a brother of the defender's; (3) that in the forenoon of said day the pursuer, having finished loading stones into a canal boat, was told by the defender to apply to the said William Stark for instructions as to what

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he was to do next; (4) that having done so, he was directed by the said William Stark, as manager aforesaid, and in the exercise of the superintendence entrusted to him by the defender, to go and work along with James Stark (a brother of the defender's and of the said William Stark); (5) that the said James Stark was then engaged in attempting to extract from a bore a charge of powder, which had missed fire about an hour before; (6) that the said bore was 4 feet deep, and was charged with 14 inches of powder, covered with 2 feet of sand stemming, and furnished with a gutta percha ‘strum’ or fuse; (7) that the extraction of such a charge had rarely if ever been attempted in defender's quarry, and is an operation of very considerable danger; (8) that the pursuer had never before seen such an operation performed; (9) that the said William Stark, when he directed the pursuer to go and work along with James Stark, knew that the said James Stark was attempting to extract the aforesaid charge, but did not apprise the pursuer of the danger, nor give him any instructions as to the precautions proper to be taken in the circumstances; (10) that the said William Stark did not personally superintend the operation; (11) that while the pursuer was assisting the said James Stark, and holding in the bore a steel-jumper which the said James Stark was striking on the head with a ‘mash’ or hammer in order to dislodge the stemming, the charge exploded, and the pursuer's left hand was thereby blown off above the wrist, and his eyesight temporarily injured; (12) that there was no contributory negligence on the part of the pursuer: Finds in law that the facts being as above set forth, the defender is liable to the pursuer in damages: Therefore recals the interlocutor appealed against; assesses the damages at £150 sterling, &c.

“ Note.—After mature consideration of this case I feel constrained to come to a different result from the Sheriff-Substitute, and to find for the pursuer. I do so on the ground that, according to my apprehension of the law, if an employer, or a superintendent in the exercise of his superintendence, orders a servant to perform or take part in an operation out of the line of his usual employment, and which is attended with danger, without apprising him of its special risks, and seeing that proper precautions are taken to protect him against them, the employer is liable to his servant for any resulting injury. This seems to be the doctrine of Robertson v. Brown, 1876, 3 R. 652, read along with the Employers Liability Act, sec. 2, sub-sec. 2.………

“It seems to be assumed by the Sheriff-Substitute that the explosion was due to the use by James Stark and the pursuer of a steel-jumper, which caused sparks that ignited the powder.

“He is of opinion that the pursuer cannot have been ignorant that such an instrument when brought sharply into contact with whin rock would produce fire, and that his recklessness so contributed to his injury as to deprive him of any claim for damages. It is extremely probable that it was a spark that did the mischief. But I think a man like the pursuer, who had no experience of this sort of thing, may not unnaturally have supposed that the water James Stark and he kept pouring into the hole would be an effectual preventive of sparks. At all events he was entitled to assume that the manager, who knew what was being done, was satisfied that it was being done rightly.

“The loss of a hand will be a serious impediment to bread-earning for the rest of the pursuer's life, and therefore I think he is entitled to a full measure of damages. In the circumstances £150 does not seem unreasonable.”

The defender appealed, and argued—(1) It was not proved that the manager gave the pursuer authority to go and perform the operation through which the accident happened. He was not responsible, then, for the ultroneous act of the pursuer and James Stark. (2) The pursuer was, in any view, guilty of contributory negligence. He had ten years' experience as a quarryman, and must have known, being an intelligent man, that the use of a steel jumper was attended with very great risks. He had, then, knowingly used insufficient materials, and, moreover, it was not proved that the manager had sanctioned the use of such tools.

Authorities— Crichton v. Keir and Crichton, February 14, 1863, 1 Macph. 407; M'Gee v. Eglinton Iron Company, June 9, 1883, 10 R. 905; Senior v. Ward, January 13, 1859, 28 L.J. 139.

The pursuer replied—It was conceded that the operation was a very dangerous one, and unprecedented in the quarry, and it was clearly proved that the manager knew that the operation was being performed and with a steel jumper. In these circumstances he ought to have warned the pursuer of the danger, or at all events to have himself personally superintended the operation.

Authorities— Robertsons v. Brown, May 17, 1876, 3 R. 652; Pollock v. Cassidy, February 26, 1876, 8 Macph. 615; Stark v. M'Laren, November 2, 1871, 10 Macph. 31.

At advising—