Scottish Court of Session Decisions

On 25th June 1888 John Gray was employed by David Douglas, marine storekeeper, Greenock, to assist him in breaking up a small iron tank. In the course of this work David Douglas struck John Gray a severe blow on the foot with a forehammer.

The present action was raised by John Gray in the Sheriff Court of Renfrew and Bute against David Douglas to recover damages for the injuries he had sustained.

The pursuer pleaded—“The pursuer having been injured in manner libelled through the personal fault of the defender, he is entitled to compensation from the defender for said injuries.”

The defender pleaded, inter alia—“(3) The said injury having been purely accidental, or the result of the pursuer's own actions, no reparation or compensation is claimable by him in respect thereof.”

The Sheriff allowed a proof.

The pursuer's account of the accident was as follows:—“I recollect of his employing me on 25th June last. I commenced working to him that morning at the back of ten o'clock; he employed me to take bottles from his store to Mr Prentice's in Nicolson Street. I removed two crates of bottles that day. The defender paid me 6d. a crate for such work; and when I was doing other work for him he paid me the same, viz., 6d. an hour…. After I returned from removing the crates I laid the barrow down, and the defender said to me, ‘John, I have a small tank in here, and when you are here I think we will just begin and cut it up.’ I helped the defender out of the store with the tank, and then he fetched the tools. I think that the tank was about 2 feet cube, but I could not say exactly. The rivet heads of the tank were inside, I remember. It is my experience, as a caulker, of that sort of work, in small tanks, that the rivet heads are always in the inside, and that the clinched side is outside; there is a small crest put at the clinched side of each rivet, outside. When we began to break up the tank the forehammer was the first tool that the defender used, and he told me to take up the side-cutter, and see and cut off the crests of the rivets outside; and we tried that, but it was of no use; the tank was very thin, and whenever he struck the side-cutter with the forehammer the side-cutter rebounded, and would not take a grip of the crest of the rivet, and we did not manage to take off any that way. Then, that failing, the defender suggested that he should try and spring the plates of the tank asunder by inserting hand-chisels between the seams of the plates. I do not know that any of the chisels produced were used on that occasion, but we did make use of some chisels like these. I myself but in some of the chisels with a small hand-hammer, and I wedged them in at the top. There would be two or three chisels in at one time—as one came out I just put in another. When I had inserted two or three of these chisels the defender took the forehammer and used it to them. When he struck then with the forehammer I was not holding any of the chisels—I was standing perhaps a foot or a foot and a-half away from the tank. I considered that I was standing at a safe distance away. To the best of my knowledge a foot or a foot and a-half was a safe distance away. I swear that I was not holding a chisel when the defender used the hammer at the time of the accident, nor was I using a side-cutter at the time of the accident. I did not use the side-cutter at any time except trying to cut the rivet crests off. The side-cutter could have been used as a wedge. When I had inserted the chisels, and left them, the defender lifted the forehammer and aimed at one of the chisels, but he missed his blow altogethes, and truck me on the foot, and at that same moment as I was struck on the foot some dirt or substance jumped up and struck me in the eye, and I was knocked stupid altogether.”

The pursuer's account was corroborated by the evidence of John Harrison, an iron merchant, who saw the accident from a little distance, and deponed that when he came up he saw chisels sticking in between the plates of the tank. He and another witness experienced in this class of work deponed that the fact of missing a blow with the hammer argued either carelessness or unskilfulness on the part of the person using it. On the other hand, John Cook, a blockmaker, a witness for the pursuer, admitted that the chance of missing a blow with the hammer would happen with the best of people, and that he had missed a blow many a time himself.

Page: 688↓

The defender deponed that the accident happened while he was striking at an instrument called a side-cutter, used for the purpose of cutting off the heads of rivets, which the pursuer was holding, and that the accident was caused by the pursuer moving the side-cutter while he was in the act of striking, with the result that he missed his blow and struck the pursuer. He further deponed that he had often broken up tanks, it being part of his business to do so.

On 11th January 1889 the Sheriff-Substitute ( Nicolson) pronounced the following interlocutor:—“Finds that on 25th June 1888 the pursuer was employed by the defender to assist him in breaking up an iron tank; that while so engaged the defender, who was using a fore-hammer to strike a cold chisel wedged between the plates of the tank, missed his aim, brought the hammer down on the pursuer's right foot and seriously injured it; that at the same time a fragment of some substance struck the pursuer's right eye, causing much pain and inflammation, resulting in the total loss of sight in that eye; that the pursuer has been seriously disabled by these injuries, and has sustained loss and damage thereby; that these injuries were caused by the fault of the defender, and that he is liable to the pursuer in damages therefor; assesses the damages at £30 sterling, and appoints the defender to pay that sum to the pursuer: Finds the pursuer entitled to the expenses of process, &c.

“ Note.—The defender contradicts the pursuer on some important points and on some unimportant ones, but on the whole the evidence of the pursuer is corroborated by that of other witnesses, while that of the defender is not. On the question whether the pursuer volunteered his services in the breaking of the tank, or was asked by the defender to give him a hand there is no evidence but that of the parties, I prefer that of the pursuer. The defender admits that he brought down the hammer on the pursuer's foot, but his explanation is that the pursuer was holding a side-cutter for him to strike one of the rivets on the side of the tank, that in doing so the pursuer's hand shook loosening the side-cutter and causing it to swerve outwards, so that when the hammer came down it never struck it, but came down on the pursuer's foot. He says the rivet was about a foot from the ground, and the handle of the side-cutter is about a foot in length, which makes it difficult to understand how the pursuer could have held it for the defender to strike at without crouching down, and endangering his head more than his foot. But there is nothing to support the defender's version of the accident which the pursuer entirely contradicts. He says he was not holding the side cutter or a chisel, but that the defender was aiming at one of several chisels wedged into the top of the tank, and Harrison, the only witness who saw the occurrence, says that when he went forward he saw chisels standing upright on the tank as if for wedges. He told the defender that he was not breaking up the tank in the proper way, and that he should not have been using a fore-hammer at all.

As to injury of the pursuer's eye there is more difficulty. When he called on Dr Galloway on the ninth day after the accident to consult him about his eye, Dr Galloway says he never mentioned how he had got it hurt. What is more extraordinary, he called on him some time after that to ask for a line for his lawyer, to say that the state of his eye was caused by the injury to his foot. The pursuer says, however, that he told the doctor on his first visit how his foot and eye were hurt, and that, at the same moment when he got the blow on the foot, ‘some dirt or substance jumped up and struck me on the eye.’ Undoubtedly his eye was hurt simultaneously with his foot. He complained of it immediately. Cook, who came to his assistance, says—‘He thought he was injured or struck in the eye—that he was afraid that his eye had been hurt or touched with something.’ As soon as he got home he told his daughter-in-law that his eye was much worse than his foot, and on looking at it she saw that it was all bloodshot. A good deal of evidence was led for the defender to show that the pursuer's eyes were weak, and that he had had his right eye hurt twice some years ago. That evidence is not much worth, and does not in the least account for the pursuer's right eye, which was well in the morning of 25th June, being bloodshot and painful in the afternoon, and in a few days closed up and bereft of sight. The evidence of Dr Cluckie, an experienced oculist, is more important. Unfortunately he did not see the pursuer's eye till 3rd December, and could give only theoretical evidence as to the cause of the loss of sight. He says—‘The loss of the pursuer's sight and the appearance of the eye are consistent with his eye having been struck by some foreign substance about 25th June last.’ But he also says—‘I could not possibly say what was the original cause of the present condition of the eye.’ He also says—‘My opinion is that there had originally been some disease or inflammation in the cornea of the eye—the transparent portion—and that it continued to increase, and that the eye gave way, resulting in loss of sight.’ He also says—‘Although a man's friends, and also he himself, say that he sees perfectly well and has done so for years, it may be that a small foreign body has become embedded in his eye, and I could understand an accident displacing that foreign body and causing immediate blindness,’ &c. That the pursuer's eye sustained an accident when his foot was struck is beyond doubt, and that it was such as the pursuer says is the only conclusion I can draw from the evidence. Even on the supposition that there was latent disease in the eye, the sudden development of inflammation, ending in the loss of sight, must be attributed to the injury received when the defender's hammer came down on the pursuer's foot, and for that injury the defender is liable in damages to him. It is possible that his eyesight might have

Page: 689↓

been saved if he had gone in time to Dr Cluckie, and his neglect to seek the best remedy available for him seems sufficient reason for awarding him a smaller sum than I should otherwise have been disposed to allow.”

The defender appealed to the Sheriff ( Pearson), who on 28th June affirmed the interlocutor appealed against.

“ Note.—… Apart from the evidence I should have thought this was an ordinary occurrence not inferring any fault or negligence on the part of the hammerman, and it is to be observed in this connection that the pursuer did not blame the defender for it at the time nor for some days afterwards. Nor is the evidence all one way on this matter of fault. Cook says that the chance of a miss ‘would happen with the best of people,’ while Harrison and Lamont say that in their opinion it infers carelessness or negligence. Colligan also holds the latter view, though his experience is not such as to give weight to his testimony. On the whole, the evidence on this point supports the pursuer's case.” …

The defender appealed to the Court of Session, and argued—No sufficient ground of liability had been disclosed. It was not alleged that the method of breaking up the tank was bad, but only that another method might have been more profitable; nor were the tools used said to be unsuitable for the work, and the pursuer admitted that he was aware of the degree of skill in such matters possessed by the defender. The case was one of mere accident which would not entitle the pursuer to recover. Further, all risk would have been avoided had the pursuer only stood a little further back.

Argued for the appellant—He was entitled to rely on the defender not missing his blow. In missing, the defender showed either such want of skill or such carelessness as would entitle the pursuer to recover damages. The account of the accident given by the defender could not be relied on as it differed from that of an eye-witness and was uncorroborated. The Sheriff-Substitute, who saw the parties, believed the pursuer, and no sufficient reason had been shown for disturbing his judgment.

At advising—