Scottish Court of Session Decisions

Thomas Gray, a workman in the employment of Messrs John & James Thomson, engineers and shipbuilders, Glasgow, upon the morning of the 2nd November 1888, while on his way to deposit his check or ticket in the check-box on board the steamhip “Pretoria,” fell into a hole in the deck and was severely injured.

He brought an action in the Sheriff Court at Glasgow against his employers for reparation—damages £500, or if found due under the Employers Liability Act, £150.

He averred—“The accident was caused through the fault and negligence of the defenders or of their manager or foreman carrying on the works on board the steamship ‘Pretoria,’ for each of whom they are responsible in terms of The Employers Liability Act 1880, in neglecting to take the necessary precautions for the safety of their workmen. The opening in the deck ought to have been covered, or a barricade erected from the side of the vessel right across the front of the opening to prevent anyone passing up that side, or otherwise, there ought to have been lights to indicate and show the opening, and a watchman. The only light, which was a common ship lantern, was at the end of the gangway on board the vessel, and that was some 30 or 40 feet from said opening. In ordinary circumstances they were bound to take necessary precautions to properly secure all openings on the deck during night, and specially they were also bound to do so under byelaw 59 of the byelaws and regulations enacted by the Trustees of the Clyde Navigation at Glasgow, on 3rd January 1860, in virtue of the power conferred on them by the Clyde Navigation Consolidation Act 1858, and the Acts incorporated therewith.”

The pursuer pleaded—“(1) The pursuer having sufferedloss, injury, and damage through the fault or negligence of the defenders, or of those for whom they are responsible, is entitled to reparation therefor. (2) The defenders being bound under the byelaw referred to in the condescendence to properly secure the opening in question, and having failed in their duty, are liable to pursuer in reparation. (3) Or otherwise, the pursuer having been injured when in the employment of the defenders, through the fault or negligence of the defenders, or of those for whom they are responsible, he is entitled under the Employers Liability Act 1880, sections 1, sub-sections 1, 2, and 3, to decree in terms of the second conclusion of the petition.”

Byelaw 59 referred to was in the following terms—“Every vessel in the harbour having any large opening in the deck for the reception of machinery or other purpose shall after dark have such opening either securely covered or properly lighted, and under the charge of a special watchman.”

A proof was allowed which established the following facts—Until the day before the accident the “Pretoria” had been lying with her port side to the quay. The checkbox was on the starboard side, and could be approached either by going along the port side and crossing over (the easier way), or by crossing first and going along the starboard side over some piled iron plates. At the time of the accident the “Pretoria” was lying with her starboard to the quay. New boilers were being put in which necessitated the lifting of a portion of the deck, but the hole was usually covered with planks during the night. Before the accident the men had for the first time been working all night, and the planks were up. The night-watchman went away at 5·30 leaving the donkey-boiler-house door open against the hole, and a lamp resting upon a plate of iron at the after-part of the boiler space, but 3 feet from it. The day—watchman came on duty at 5·30, but shortly afterwards went forward to get a cup of coffee. In his absence the pursuer, who

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was somewhat short-sighted, came along the starboard side, pushed aside the door of the donkey-boiler-house, which when open covered the open space in the deck, and fell into the hole. There was no rope in front of the space.

The defenders' foreman James Mullan deponed—“When the door of the donkey-boiler-house was open it covered more than the opening, but if we shut it we could walk into it. So long as this donkey-boiler door was opened out it was impossible to fall down the hole unless one put-to the door…. The hole would be there for three or four months before the accident, and the men were working on board and passing to and fro, and they knew that the opening was there. Pursuer had worked on board the ‘Pretoria’ for two or three months; he had been working back and forward with me for about two years. He had been sent to the ‘Adirondack’ four or five days or a week before the accident…. I cannot tell whether there was a lamp at the opening at the time of the accident, but there was one there the night before at 11o'clock when I left the ship. I thought the place was sufficiently lighted at 11 o'clock. It was as well lighted as such holes usually are…. I know well enough about the Clyde Trustees' Regulations in regard to the openings on decks of vessels. It is the duty of the night-watchman to put up the lights at the opening, and the day-watchman sees them all put out in the morning. (Q) Is it customary to have in addition to the lights a special watchman to watch each special hole or opening?—(A) I never knew it. The only think we have a special watchman for is the bellows fire. With regard to an opening in a deck we would never think of having anybody besides the ship's watchman, and to have the place properly lit. I consider that the ‘Pretoria’ was properly lit when I left her… . The night-watchman who was on board the vessel was there for the purpose of seeing that nothing was taken away from the vessel, to see that the ship was right, and that nobody came on board. He was there the same as if we had had a policeman there. He was not there to stand with a light at the hole, but he was there to see that there Was a light at the hole. I know a little about the byelaws of the harbour, but I never read them. I was the man in charge at the time, and I was entitled to say to pursuer ‘do this’ and he did it. I did not give any instructions to have this large opening in the deck protected in any particular way before the accident. I knew that the donkey-boiler-house door was open; we used to tie a line across it, and that was a thing that was done every night before that in order to prevent anybody going along that side.”

The Sheriff-Substitute ( Guthrie) found that the accident was not caused by the negligence of the defenders, or anyone for whom they were responsible, and therefore assoilzied them.

“ Note.—It… is necessary to inquire what fault the defenders have committed. It is said that they failed to have the opening in the ship's deck properly fenced or properly lighted and guarded by a watchman.

1. As to fencing. It is proved that the defenders' workmen were engaged about the boilers and upon the deck all that night, and that any fencing of the opening would have been impossible, because it would have interfered with their operations. The men on the night-shift appear to have left about 5·30, and the day-shift was just about to begin when the accident occurred. In the circumstances it does not appear to me, and indeed was hardly contended, that the opening should have been fenced for the brief interval between the night-shift and the day-shift.

2. As to lighting and watching. The great preponderance of evidence is to the effect that the one lamp, which was placed on a pile of plates a few feet from the end of the hole nearest the gangway, was sufficient to show it and prevent a man of ordinary prudence from walking into it. But the hole it is said should have been not only lighted, but protected by a special watchman. This, it is said, is the requirement of the 59th of the regulations of the Clyde Trustees for ships in the harbour. There was a watchman for the ship, and I am of opinion that if he had been doing his duty this unhappy accident would not have happened. He was at the time getting his coffee, and I am inclined to think that the time for so doing was ill-chosen, and that he should have been at his post when the workmen were coming on board the ship for their day's work. This absence of his, however, was not, and indeed could not—being the negligence of an ordinary fellow-workman — be pleaded as involving the defenders in liability. It was urged that they were bound as long as the opening existed to have a ‘special” watchman for it. Now, I will not say that the 59th rule is not capable of being construed as the pursuer contends that it should. But I think that that is not its fair meaning, and that so to interpret it would be a malignant construction. It is not very well, at least not quite clearly expressed, but I think it is plainly intended to apply to an opening made for the ‘reception of machinery or other purposes,’ which ‘after dark,’ is intermitted or abandoned, so that covering or watching and lighting is not only a possible and convenient but an indispensable and permanently necessary arrangement for the safety of the public, or those having access to the ship during the night. I have already said that this is not the state of the facts in the present case, where work was going on continuously. I think that in the circumstances safety was sufficiently provided for by the regular watchman kept for the ship undergoing repairs in the engineer's hands. I do not therefore need to consider the more general questions, as to which, I think, there is a good deal to be said, whether, even if the work had not been going on, this regular watchman is not a special watchman; or again, whether the rule is intended to have any application to a vessel not at all in a seagoing condition, but which has been in the hands of tradesmen

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for extensive and long-continued repairs.

I think therefore that none of the faults alleged against the defenders have been made out. I do not wish to say much about the door which the watchman appears to have set open as a sort of barricade when he went away. It may be that it operated as a snare to the unfortunate pursuer rather than a defence, and that he would have had a better chance of seeing the hole if it had been closed. But it is difficult to avoid the conclusion that the proximate cause of the calamity was the pursuer's own incautiousness. He knew well the locality, he knew that the deck-plates were lifted, and the cavity yawning, yet he went forward without thought and without watching his steps. He first failed to notice that the vessel had been turned in the river, which should have warned him that the hole was now on the side next the quay, and that he ought to have gone round the engine space to the safe and covered side of the vessel, and then he went forward in face of the light on the pile of plates, which should at least have suggested that he was walking into danger.

I do not find it necessary to refer to certain authorities which were cited. If the facts be regarded as I think they must, then for the principles applicable to them it is sufficient to refer to such leading cases as Indermaur v. Dames, and Thomas v. Quatermaine (Lord Justice Bowen's judgment).”

The pursuer appealed to the Second Division of the Court of Session, and argued—There was fault on the part of the defenders or their foreman, for whom they were responsible, inasmuch as (1) there was no special watchman as required by the byelaw referred to; (2) there was no barricade; (3) the lighting was insufficient. There should have been exceptional care taken, because the vessel had been recently turned, the morning was peculiariy dark, and the hour for the day-shift coming on board was a specially likely time for accidents to happen.

Argued for the respondents—There was no fault on their part. They had done their duty by providing a competent watchman and sufficient lighting. They had sufficiently complied with the requirements of the byelaw. It was absurd to say that there must be a special watchman for every hole in addition to the ship's watchman. There was a light; a light meant a hole; therefore even if they were in any way to blame, there was contributory negligence on the part of the pursuer. The accident was due to the fault of the watchman—a fellow-servant of the pursuer, for whose actings they (the respondents) were not responsible—going away from his post when he did— Robertson v. Adamson, July 2, 1862, 24 D. 1231; Seymour v. Maddox, 1851, 16 Q.B. 326; Brooks v. Courtney, 20 L.T. 440; Pritchard v. Lang, July 2, 1889, 5 Times' Law Reports, 639; Botch v. Smith, 7 Hurl. & Nor. 736; Griffiths v. E ast and West Indian Dock Company, 5 Times' Law Reports, pp. 43 and 371; Wilkinson v. Farie, 32 L.J. Ex. 73; Clyde Navigation Act (21 and 22 Vict.)

At advising—