Scottish Court of Session Decisions

The Employers Liability Act 1880 (43 and 44 Vict. cap. 42) provides—“1. Where, after the commencement of this Act, personal injury is caused to a workman (1) by reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the employer,… the workman … shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of or in the service of the employer or engaged in his work. 2. A workman shall not be entitled under this Act to any right of compensation or remedy against the employer in any of the following cases, that is to say (1), under sub-section one of section one, unless the defect therein mentioned arose from, or had not been discovered and remedied owing to the negligence of the employer, or of some person in the service of the employer and entrusted by him with the duty of seeing that the ways, works, machinery, and plant were in proper condition.”

This action was brought in the Sheriff Court of the Lothians by James Haston, a trace-boy in the service of the Edinburgh Street Tramways Company (Limited), and his father as his administrator-in-law, against the said Tramways Company. It was raised at common law, and alternatively under the Employers Liablity Act 1880. The pursuer, who was thirteen years of age, averred that on the first of April 1886, in the exercise of his duty, he was taking two horses down the Regent Road, riding upon one and leading the other by the reins; that while proceeding at a walking pace, when near Abbey Mount, the horse on which he was mounted fell down, throwing him off, and afterwards rolled over him twice; that he was taken to the Infirmary, where it was found that his left leg and ankle were broken, and he was incapacitated from work for three months. He averred (Cond. 4) that the mare in question was “worked out, and broken and gone about the legs, knees, and feet. It was addicted to falling on the street, and had fallen several times about the time this accident took place. It was further subject to disease of the spine, or staggers, or some other ailment which

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predisposed it to falling, and rendered it wholly unfit for the work to which it was assigned. On the occasion in question the said horse fell by and in consequence of these defects, and constitutional and physical weaknesses to which it was subject. The defenders and their superintendents and inspectors for whom they are responsible were aware of the defects, faults, or habits of the animal”—and that the pursuer was not aware of its habits or disposition. The defenders averred that the horse was sound in wind and limb at the time of the accident, and that the pursuer had teased the horse on the day in question, so as to cause the animal to kick, and that thus the accident occurred.

The pursuer pleaded—“(2) The pursuer James Haston being a workman of the defenders, and his said injuries having been caused by a defect in the condition of the machinery or plant connected with or used in the business of the employers, the pursuer is entitled to decree as craved with expenses. (3) The injuries to the said James Haston having been caused by the negligence or fault of a person having the superintendence of the defenders' work at which he was employed, the pursuers are entitled to decree as craved with expenses.”

The defenders pleaded—“(2) The accident in question not having been caused by the fault of defenders, or of any one for whom they are responsible, they are entitled to absolvitor. (3) The accident having been occasioned, or at least materially contributed to, by the pursuer James Haston, the defenders are entitled to absolvitor.”

On the part of the pursuer it was proved that on the day in question he was going at a walking pace when the accident occurred, that the same mare had fallen with several other boys before that time, and that the man who had charge of her in the stables had told the father of the pursuer that she was a “footless useless brute.” On the part of the defenders it was proved that no complaint had ever been made to any of the officials of the company that the mare had fallen, or was considered unsafe, and two veterinary surgeons who saw her shortly after the accident occurred deponed that she then seemed in sound condition.

On 20th November 1886 the Sheriff-Substitute ( Hamilton) found that it was not proved that the accident libelled was caused by the fault or negligence of the defenders, or of those for whom they were responsible. He therefore assoilzied them from the conclusions of the petition.

“ Note.—At the discussion on the proof the pursuer's agent admitted that he had not made out a case for damages at common law, but stated the claim under section 1, sub-section 1, of the Employers Liability Act 1880 was still insisted in. As regards the latter claim, the Sheriff-Substitute is unable to hold the pursuer's proof as at all sufficient. In the first place it is not shown that the injury libelled was sustained by reason of a defect in the condition of the horse which the pursuer James Haston was riding at the time of the accident—in other words, that the horse was suffering under some disease or constitutional weakness which caused its fall on the occasion in question. And in the second place it is not proved that the existence of such defect was brought to the knowledge of the de fenders, or of their inspectors or superintendents, so as to make the defenders liable for continuing to use the horse in their business.”

The pursuer appealed to the Sheriff ( Crichton), who on 28th December adhered to the Sheriff-Substitute's interlocutor.

“Note.—The Sheriff is of opinion that the pursuers have failed to establish their case against the defenders either at common law or under sect. 1, sub-sect. 1, of the Employers Liability Act 1880.

“The fault or negligence on the part of the defenders which is averred is that the mare which was under the charge of the pursuer James Haston at the time of the accident was—[ the Sheriff here quoted, Cond. 4],

“The first and third of these allegations in regard to the mare have been proved not to be well founded. It is true that she had previous to the accident to the pursuer fallen several times when uuder the charge of the trace-boysin the defenders' employment. On the other hand, the drivers in the defenders' service say they ‘ neither saw the animal falling on any occasion nor heard of her doing so.’ It is certain that no complaint was made to the defenders or their inspectors or superintendents that the mare had fallen, and they did not know that she had fallen. It is libelled that the mare fell either in consequence (1) of the carelessness of the pursuer James Haston, (2) of loose stones being on the road, or (3) of her having been tickled when the pursuer was riding her.

“The Sheriff holds that the word ‘plant’ which occurs in the statute includes animals used for the purpose of a business.

“The Sheriff concurs with the Sheriff-Substitute that it has not been proved that the injury to the pursuer James Haston was sustained by reason of the defective condition of the plant used in the defenders' business. But even if it could be held that the mare was defective, this was not due to any negligence on the part of the defenders or those entrusted by them with the duty of seeing that the plant was in proper condition.”

The pursuer appealed to the Court of Session, and argued—It was proved that the accident had happened because the horse on which the pursuer was riding at the time was unfit for the work; that was a defect in the meaning of section 1, sub-section 1, of the Employers Liability Act 1880; this unfitness was known to the persons who had charge of the animal, and therefore it ought to have been known to the officials of the Tramways Company, and under section 2, sub-section 1, of the Act they were therefore liable in damages. The pursuer had not contributed in any way to the accident.

Authority— Crichton v. Keir & Crichton, Feb 14, 1863, 1 Macph. 407.

Argued for the defenders—The pursuer had failed to prove that the horse was unfit for the work to which it was put. It had been examined by two veterinary surgeons, both of whom deponed that the animal was in sound condition. Even if there was a defect in the horse on account of which the accident had happened, it was proved that no complaint had been made to any superior servant, and the company therefore was not liable, for the Act, sec. 2, provided that “a workman shall not be entitled to any right of

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compensation or remedy under this Act … (sub-sec. 3) in any case where the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give or cause to be given information thereof.”

At advising—