Scottish Court of Session Decisions

The late Robert Murray was a labourer at one of the pits at Dairy belonging to Messrs Merry & Cuninghame, iron and coal masters, Glasgow. His duty was to “convey ironstone in hutches from the ‘face’ of an ironstone heap on the surface of the ground to the bottom of a shaft constructed of wood, up which said hutches and ironstone were raised on a cage by steam power. On arriving at the top of the shaft the hutches were wheeled along a gangway, and the ironstone emptied from them into furnaces.” When empty they were returned to the bottom on the same cages as they were sent up by, and removed by Murray. The shaft, which was about 50 feet high, was a double one, and was fenced with wood from the top down to 10 or 12 feet from the ground.

On 9th April 1889, Murray, while removing an empty hutch from the cage, and while standing outside the shaft, was struck by a piece of ironstone which fell from a full hutch at the top of the shaft. He was seriously injured, and died within two days. His widow, Mrs Christina Moffat or Murray, brought this action in the Sheriff Court at Glasgow against Messrs Merry & Cuninghame for £500 as reparation for the loss of her husband. She averred that the fall of the ironstone upon her husband was due to the fault of the defenders in not having the shaft fenced at the bottom.

After a proof, the import of which sufficiently appears from the above narrative and from the Judges' opinions, the Sheriff-Substitute ( Spens) on 14th November 1889 found that there was a want of ordinary and reasonable precautions on the part of the defenders in not seeing to the fencing of the lower portion of the shaft; that for such negligence the defenders were liable at common law; and assessed the damages at £150.

“ Note.—This is a case which I have considered to be one attended with a good deal of difficulty… .

The question is almost entirely one of law, for the main facts are not in dispute. The shaft down which the piece of ironstone fell is a shaft on the surface; but I take it that the provisions of the Coal Mines Regulation Act 1887 (50 and 51 Vict. cap. 58), sec. 49, rule 19) are applicable alike to working shafts below or above the surface. Whether, however, this is a proper construction of the Act or not, I have come to be of opinion that the non-fencing of the shaft in question between that portion of it which is shown on photograph No. 7, as between the letters D and E and A and F, was a neglect of the ordinary and reasonable precautions which should have been taken by defenders for the safety of their workmen… . Several of the witnesses, including some of the defenders' witnesses, were asked whether there was any reason for the non-fencing of the portion of the shaft referred to, and no intelligent answer justifying this non-fencing was received from any of them. No witness, so far as I remember, speaks to the precise point at which the piece of ironstone in question left the limits of the shaft, but I think there can be no doubt, having regard to the fact that the deceased was standing on the plates (though the precise distance from the shaft is not, I think, brought out) outside the shafts, that the stone must have come either through the opening between D and E or between that of A and F, as shown on photograph No. 7. Hence, if there had been fencing of this portion of the shaft, it seems clear that the stone could not have fallen outside the shaft in the way it did. The stone which occasioned the fatal injury was not produced at the proof, but at my suggestion this has now been done. A joint-minute being lodged to the effect that the agents being reasonably satisfied that the stone produced is that which did the mischief, admitted this to be the case for the purposes of this action. Res ipsa loquitur, to this effect at all events, that if such heavy stones could fall off loaded hutches, and fall down out-with the shaft, it was a matter which required attentive consideration on the part of the employers to obviate risk to the workmen engaged in operations connected with the shaft. Now, there are one or two points which require to be considered in connection with the case which I propose to refer to… . (2) Was the nonfencing of this portion of the shaft a neglect of ordinary and reasonable precautions inferring liability at common law? …

2. And this brings me to a consideration of the second point suggested above. It may be argued by defenders, esto there was neglect of fencing, and this was an ordinary and reasonable precaution, that neglect had to do with a matter which fell within the ordinary duties of the manager at these works, and if so, liability must be measured by the limitation in the Employers Liability Act. My view is, apart entirely from the Employers Liability Act, there is liability at common law for a structural defect in the appliances used, which could have been remedied had the reasonable precautions suggested by prudence been adopted. Fraser (Master and Servant (2nd ed.), p. 93) states the law thus—‘The general rule, then, appears to be, that, on the one hand, the master is responsible in damages for all injuries arising from causes which he might have seen and obviated—such as defects in his machinery, neglect to avail himself of appropriate appliances for preventing danger, appointing incompetent managers in positions of responsibility, working by an erroneous or unnecessarily dangerous system, and, in short, all risks which can be said to arise from his rashness, carelessness, or neglect, and not properly to be incident to the contract.’ This I take to be a sound exposition of the law. In the case of Brydon v. Stewart, 2 Macq 30, Lord Chancellor Cranworth said—‘A master by the law of both countries (England and Scotland) is liable for accidents occasioned by neglect towards those whom he employs.’ No doubt it is open to the contention on the part of the defenders

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that Merry & Cuninghame exercised no personal superintendence over the appliances, and references may be made to the observations of Earl Cairns in the case of Wilson v. Merry & Cuninghame, L.R., 1 Scotch App. p. 26—‘The master has not contracted or undertaken to execute in person the work connected with his business. The result of an obligation on the master personally to execute the work connected with his business in place of being beneficial might be disastrous to his servants, for the master might be incompetent personally to perform the work.’ And it might be argued here that the general manager was the person to see to the fencing of the shaft. But the most recent case in which this question is involved is Henderson v. Carron Company, March 29, 1889, 16 R. 635. Now, in that case, a company was held liable in damages at common law because it was held that there had been a failure to take proper precautions as to the safety of the men, in respect a certain furnace had been allowed to be worked on in a dangerous state for a considerable period of time. The ground of liability there for making the company liable was, that the manager was in the knowledge of danger, and had not taken effectual steps to put the matter right. If this be sound law, I take it that in this case, although there may be general supervision by a manager, that yet, nevertheless, there are certain matters which cannot be delegated by the master in such a way as to free him from personal liability. Such I take it to be the case applicable to the use of improper machinery or structural defects in the appliances used. There is not, I think, much definite authority on this point; but both in England and Scotland, I think, it is assumed in different cases. The quotation from Lord Cairns, made above, refers I take it to ordinary business of a work, but it never could be held to apply let us say, e.g., to the case of a manager selecting improper machinery, and that which ordinary and reasonable care would have shown to be such. The master in such a case is not allowed to free himself from responsibility for an accident occurring through such improper machinery, on the ground that the fault was the fault of a fellow-workman of the injured man. In the same way, in this case, if I am right in my view, there is a structural defect in the construction of the shaft, and the master cannot be allowed to free himself from personal responsibility by pleading that if there was fault in the matter it was the fault of the manager. In the case of limited liability companies, it might almost always, if not always, be pleaded that there was no personal fault on their part with regard to the use of improper machinery, but this could not be allowed to free them from all responsibility at common law on account of accidents arising from such improper machinery. Accordingly, I think the law may be stated thus, that there is an implied warranty on the part of masters that ordinary and reasonable precautions will be taken for the safety of the men in their employment in connection with the machinery and appliances used, and that when accidents arise through the failure to take such precautions the master cannot escape liability by the plea that he had delegated the matter to the manager, a fellow-workman of the injured man.”

The defenders appealed to the Court of Session, and argued—The judgment of the Sheriff-Substitute should be recalled. The Coal Mines Regulation Act 1887 did not apply, for this shaft was wholly above ground. They had fully discharged their common law obligation to take reasonable precautions against possible accidents. This shaft was sufficiently fenced and far more fenced than some similar shafts in the neighbourhood. This was a most peculiar accident which could not have been foreseen. The course the ironstone had pursued in its fall, and how it had managed to strike a man standing outside the shaft, were still quite unexplained.

Argued for the respondent—The amount of fencing necessary to satisfy the common law obligation of reasonable care depended upon circumstances. Here there was clearly too large a space left unfenced. That it was a dangerous place was shown by the defenders providing gates which should have been kept up. The Sheriff-Substitute had taken a right view of the defenders' duty, and his judgment should be affirmed.

At advising—