Scottish Court of Session Decisions

But there is a further allegation of the pursuer's which must be noticed, and it is to this effect—“The pursuer has thus been injured through the fault of the defender in allowing a trap of a dangerous construction to be used as the usual and ordinary means of communication between the two apartments aforesaid, and also through her failure to have it so constructed that it would shut automatically. The defender was also at fault in failing to have a guard of some description provided, which would have prevented the pursuer or any of her fellow-workers from falling down the trapdoor as above described. The defender's forewoman was also guilty of negligence in failing to see that the trap-door was kept shut while pursuer was hanging up clothes within a few feet of it.” Now, these are the only averments of fault on record, and it appears from them that the fault alleged is of two kinds. First, there is an averment that the fault lay in, to use the words of the Employers Liability Act, some defect in the machinery or plant, but in cases of this kind a question must constantly arise, what, looking to the nature of the building, is to be deemed a reasonable mode of constructing an apparatus like this trap-door. It is alleged that it was constructed upon a dangerous principle, but it is to be kept in view that a trap-door in a building of this kind must always be attended with more or less danger, and it was not to be expected that the upper flat of a structure like this would be reached by a broad staircase. I think therefore that up to this point the pursuer has failed to make any relevant averment of fault against the defender. But it is further averred that this trap-door ought to have been so constructed as to shut automatically, and also that it should have been fenced or railed in. It is, however, clear from the pursuer's own description of these premises that anything of the nature of a rail in such a confined space was impossible, and further, that she was well aware of the care which was necessary when engaged in her work, and also of the risks which she ran from the existence of this trap-door. Upon these grounds, I am of opinion that the pursuer has not relevantly averred any such defect in the construction of this trap-door as would render the defender liable. But the pursuer further alleges that while in the discharge of her duty she was entitled to rely on this trapdoor being kept shut by the defender's forewoman. This is quite a separate ground of action, but from the pursuer's averments upon the matter it would appear that if there was any negligence at all it was that of a fellow-servant of the pursuer. In order to have made out a relevant case under this head the pursuer would have required to have averred that the forewoman whose negligence she complained of was a “superintendent” in the sense in which that word is used in the Employers Liability Act, and this she has not done. I am therefore of opinion, for the reasons which I have stated, that this action is irrelevant.

Lord M'Laren—I concur upon both points. I do not consider the pursuer's averments sufficient to support either her first or her second and third pleas.

With regard to her first plea, I see no statement on record that the forewoman who was said to be in fault on the occasion in question was a “superintendent” in the sense of the statute, and even if she had been, I cannot find any relevant averment of fault.

With regard to the pursuer's second and third pleas, I cannot see in the averments anything to suggest that the construction of this trap-staircase was defective. This mode of communication between various flats in manufactories is very common, and convenient for the storage and removal of goods, and it is not suggested that there was anything special in the construction of this trap-door. In these circumstances I am not disposed to send such a case as this to jury trial.

There was something said in the course of the discussion about the pursuer here working in the face of a known danger, and that in consequence thereof any right of compensation which she might otherwise have had was excluded. Without laying down any hard and fast rule I think it is clear that the master may in certain cases incur liability; while, on the other hand, as in the present case, when the servant could by care avoid the danger, then the law says that no liability is to attach to the master.

As regards the present case I do not think that there is any room here for inquiry.

Lord Trayner concurred.

The Lord President and Lord Shand were absent.

The Court sustained the appeal, recalled the interlocutor appealed against, and sustained the first plea-in-law for the defender.