Scottish Court of Session Decisions

Patrick M'Ternan, labourer, 213 Canongate, Edinburgh, brought an action in the Sheriff Court at Edinburgh against Messrs White & Bee, builders, Edinburgh, for £200 as reparation for injuries sustained by him in the course of taking down an old building while in their employment.

The action was laid both at common law and under the Employers Liability Act 1880.

The pursuer averred—“On or about the 2nd day of September 1889, while the pursuer was engaged, on the defenders' orders and directions, along with others of their servants, loading carts with stones and other material which had formed the old building, he was struck on the head by a large stone which was being broken up in an unskilful and grossly reckless manner by one of the defenders' servants named Thomas Stenhouse, who, on the orders and directions of the defenders or their said superintendent, had been placed at the job. …. The accident to the pursuer occurred through the fault of the defenders and of their said foreman in culpably and recklessly ordering, directing, or allowing, as they did, one of their workmen named Thomas Stenhouse to break large stones at the building beside the pursuer while the said workman was in such a state of drunkenness as to be unfit for doing work of the kind with ordinary safety to the pursuer while conforming to the orders of the defenders in doing the work he was engaged at when the accident occurred. The defenders and their foreman were made aware of the intoxicated condition in which the said Thomas Stenhouse was a considerable time before the accident occurred, and they knew of the danger attending a person in that condition working with a large sledge hammer at the place. When the

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said Thomas Stenhouse was engaged breaking up the stones referred to he did it in a grossly reckless and unskilful manner, and utterly heedless of the safety of those working near to him. Before the accident happened to the pursuer, the said Thomas Stenhouse had been conducting himself and swinging the large hammer with such recklessness that the attention of the defenders' said superintendent was directed to it. That superintendent saw the man, and called out loudly to him asking him where he had got all the drink. The answer returned by the man clearly showed his intoxicated condition, and that he was in consequence of it unfit to continue work, and that he was absolutely incompetent for it. The defenders were at the place at the time of the accident, and they also saw, or could and ought to have seen, the man to be absolutely incapable of working. They and their superintendent culpably, in the knowledge of his drunken state and incompetency, allowed the said Thomas Stenhouse to continue to work, and retained him in their service, instead of dismissing, or at least suspending him from the work to which he had been directed as aforesaid till he was capable of performing it with reasonable care for the safety of his fellow-workmen. It was in consequence of the neglect on the part of the defenders themselves, or of their superintendent whilst in the exercise of superintendence of the condition and fitness of the said Thomas Stenhouse for work, and the way in which he was performing it, that the accident to the pursuer took place.”

The pursuer pleaded—“(1) The pursuer having been injured through the fault of the defenders in employing or retaining in their service an incompetent servant, they are liable in reparation. (2) In any view, the defenders, in the circumstances condescended on, are liable in compensation to the pursuer under the Employers Liability Act 1880.”

The defenders pleaded—“(1) The action is irrelevant.”

The Sheriff — Substitute ( Rutherfurd) sustained the defenders' first plea-in-law and dismissed the action.

“ Note.—The defenders maintain that the pursuer's averments upon record are not relevant to infer their liability for damages, and it appears to the Sherif-Substitute that they are entitled to have that matter disposed of at this stage of the case, for it would be a manifest injustice and hardship to them if they were compelled to go to proof with a party who has no relevant case, and from whom they could not recover one farthing of expenses.

The pursuer claims from the defenders £200 in name of damages in consequence of his having been struck on the head, as stated in the third article of the condescendence, by a stone (the Sheriff-Substitute is disposed to think he means the fragment of a stone) which was being broken up in an unskilful and grossly reckless manner by one of the defenders' servants named Thomas Stenhouse. The ground upon which the defenders are sought to be made liable is that Stenhouse was at the time ‘in such a state of drunkenness as to be unfit for doing work of the kind with ordinary safety to the pursuer,’ and that the defenders were in fault in allowing him to do it. Now, even if proof were allowed, the Sheriff-Substitute is at a loss to see how the pursuer could succeed in showing that the result of which he complains was not due to accident or misadventure, seeing that fragments of a stone struck with a sledge-hammer are apt to fly off whether the hammer be wielded by a person who is drunk or sober. But assuming that this difficulty could be overcome, and that the pursuer proved every word of his statement, the Sheriff-Substitute is of opinion that he would not be entitled to recover damages from the defenders. The condition in which Stenhouse was must have been as obvious to the pursuer as to the defenders, and he had as good or better means of knowing any danger to which he was thereby exposed, but he continued at his work without complaint or remonstrance. The Sheriff-Substitute has therefore dismissed the action. The following cases were cited at the discussion— Fraser v. Hood, December 16, 1887; M'Ghee v. Eglinton Iron Company, 10 R. 955; Crichton v. Keir, 1 Macph. 407; M'Neill v. Wallace, 15 D. 818; Senior v. Ward, 28 L. J., Q.B. 139.”

The pursuer appealed to the Sheriff ( Crichton), who adhered.

The pursuer appealed to the Second Division of the Court of Session, and argued—At common law a master was liable for injuries sustained by a workman through the fault of a fellow-servant if he had been negligent in his selection of the latter— Tarrant v. Webb, June 18, 1856, 18 Scott's Rep. C.B. 797, or 25 L. J. C.P. 261; or if he had been negligent in retaining him after he had become incompetent — Senior v. Ward, January 13, 1859, 28 L.J., Q.B. 139. Under the Employers Liability Act 1880 a master was responsible for similar negligence on the part of his foreman. Here it had been relevantly averred (1) that the fellow-servant's incompetence at the time was evident, and (2) that the master or his foreman had been negligent in retaining that servant after attention had been drawn to his condition— Wanstall v. Pooley, Mich. Term, 1841, reported in 6 Clark & Finnelly, 910, note, was in point, the distinction that in that case the injured person was a stranger being immaterial since the Act of 1880, the person primarily to blame being in the position of superintendent. Smith v. Howard, January 12, 1870, 22 L.T.R. 130, would have been differently decided after 1880; see also Donald v. Brand, January 14, 1862, 24 D. 295; Murphy v. Pollock, 1863, 15 Ir. C.L. Rep. 224; Gilman v. Eastern Railway Corporation, 1865, 87 American Dec. 635; Skerritt v. Scallan, 1877, 11 Ir. Rep. C.L. 389; Bevan's Principles of Law of Negligence, pp. 356–360.

Argued for the respondents—It would be pessimi exempli to allow this pursuer a proof. None of the sections of the Employers Liability Act were of any use to the appellant

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except to enable him to read master for foreman. Liability could not possibly be made out against the employers, because this pursuer was clearly working in the face of a known danger, of which he had accepted the risk.