Scottish Court of Session Decisions

This was an action of damages raised at common law and under the Employers Liability Act, 1880, by the representatives of Robert Watt, who died from injuries sustained while in the employment of Walter Neilson & Company, ironfounders, Glasgow.

On 10th March 1887, Watt, who was a store-keeper in the defenders' employment, had to assist another workman, Robert Nish, in lifting a large barrel of japanning black from the floor of the defenders' works, adjoining the storeroom, to a tank three or four feet from the floor in order to empty it by the bunghole into the tank. The method adopted was to lift off one of the iron gratings in the floor above, thus forming a hatchway in it between the beams, and to put an iron bar across this hatchway, which was supported upon but not fastened to two blocks of woods placed over the beams, and from which the barrel was hoisted by means of a block and tackle. Owing to a side strain the iron bar slipped off the two blocks, and the barrel, which was being emptied, fell through the hatchway and struck Watt on the head so severely that he died from the injury on 1st May.

The pursuers averred that the plant used for hoisting the barrel was defective, that the iron bars and blocks were loose and unfixed, and that it was the duty of the defenders to see that there was no such defect in the plant.

The defenders replied that this method of raising the barrel had been in use in their works for five years prior to the accident, and was well known to the deceased.

At the proof it appeared that about once in every nine months the barrels had to be hoisted; that the deceased had helped to raise them for the last ten years; and that for five years they had been raised by the block and tackle system. No application had been made to the defenders for any other additional appliance.

The Sheriff-Substitute ( Cowan) on 28th December 1887 found that the defenders were liable under the Employers Liability Act, 1880.

“ Note.—… The Sheriff-Substitute is of opinion that there is in the circumstances no action maintainable at common law. For although the temporary erection for supporting the block and tackle was rude and primitive in the extreme, and capable in his opinion of very easy and simple improvement as regards safety to the workmen, it was the arrangement which had for several years been used at the works to the knowledge of the deceased, and moreover, if carefully placed and adjusted it may be said to have been practically safe enough.”

On appeal the Sheriff ( Moncreiff) on 27th February 1888 sustained the appeal, and recalled the judgment, finding in law that the defenders were not liable either under the Act or at common law.

In his note, after stating that in his opinion the pursuers had no case on record under the Act, and that they had declined to amend the record in order to raise it, he said—“… In my opinion the only serious question in the case is whether the accident occurred owing to a defect in the plant or machinery for which the defenders are responsible. On this matter I agree with the Sheriff-Substitute. The method for raising the barrels adopted was certainly primitive, but then the operation in question, viz., raising a barrel to the height of four feet, was comparatively simple, and did not require much engineering skill. The apparatus was rigged up in the full sight of all the persons engaged, the iron bar itself being only a few feet above the heads of those below. They had all therefore the best means of seeing and judging for themselves whether the operation was a dangerous one or not, and the risk was an ordinary one.

It does not clearly appear what was the precise cause of the accident. No doubt if the iron bar had been fixed it would not have happened, but barrels had been raised for three or four years in this way with perfect safety, and therefore it would appear the accident was caused either through some carelessness on the part of Nish or Wilson in placing the bar, or possibly (though I do not favour this view) through the fault of those below, including the deceased himself, in handling the barrel, which was being raised incautiously.

After a careful consideration of the evidence I do not think that it can be said that there was any defect in the plant or machinery. Nish says—‘It did not appear to me that there was any danger about it. It seemed a simple thing.’ This seems to have been the opinion of all concerned, and no accident had ever happened before, and no complaint had ever been made to the defenders. This being so, I think that the defenders must be assoilzied, and that it must be left to their own discretion to give or to withhold any allowance to the pursuers for the death of their husband and father. He seems to have been a good and attentive workman, and he lost his life in the defenders' service.”

The pursuers appealed, and in support of their contention that the defenders had failed to take reasonable precautions for the safety of their workmen in the operations, they cited Pollock v. Cassidy, February 26, 1870, 8 Macph. 615; M'Inally v. King and Others, October 27, 1886, 24 S.L.R. 15; Robertson v. Brown, May 17,

Page: 577↓

1876, 3 R. 652; Bowie v. Rankin & Company, June 15, 1886, 13 R. 981.

The defenders replied that the present case was outside the category of cases relied on by the pursuers. It was not a case of defective machinery at all. The operation of raising the barrel was a very simple one, which had been in use in the works for five years without any complaint by the workmen.

At advising—