Scottish Court of Session Decisions

This was an action of damages at the instance of Francis Gallacher against John Woodrow, a builder and contractor at Bridge of Weir, for injuries sustained by the pursuer on 10th December 1890 when working in the defender's employment. The action was laid both at common law and under the Employers Liability Act 1880.

The pursuer averred—“For about three months prior to September last 1890 the pursuer was in the employment of the defender as a quarrier at a quarry in or near Bridge of Weir, but on Wednesday the 10th of said month of September he was ordered by the defender to remove certain ‘plints,’ or broad pieces of stone, from the top of an old stone wall at Bridge of Weir, which was in course of being demolished. The wall, which was about 21 feet high and about 20 inches in thickness, was in a very dilapidated condition, and ‘bulged’ or swung out in the centre towards the south.”“The removal of the ‘plints’ was under the personal superintendence of William Cuthbertson, foreman in the defender's employment, and for whom he is responsible, as being a person who has superintendence entrusted to him within the meaning of said Act, and whose sole or principal duty was that of superintendence, and who is not ordinarily engaged in manual labour. Further, the pursuer and the other men employed along with him were bound to conform, and did conform, to the orders of the said William Cuthbertson.” “To allow the said ‘plints’ to descend to the ground in safety without being broken, two planks of wood were placed against the north side of said wall in a sloping position, and upon these planks the ‘plints’ were laid, and allowed to slide to the ground. The said planks were so placed by other men in the defender's employment by the orders and in the presence of the said foreman.” “The pursuer was ordered by the said foreman, for whom the defender is responsible as aforesaid, to go upon the top of said wall for the purpose of loosening the said ‘plints’ and placing them upon the planks, as already stated. The ‘plints’ measured about 22 inches broad by about 30 inches long, and weighed from one to two hundredweights. The pursuer was assisted in the work by another man in defender's employment, who also had to stand on the top of the wall. The only tool supplied was a pick or mattock, and there was no scaffold or platform on which to stand. A scaffold is necessary when a wall of such a nature is being taken down, and a ‘pinch’ should have been used instead of a pick, using it as a lever. The pursuer was unacquainted with and without experience in said kind of work, but it appeared to him that the pressure of the planks and ‘plints” thereon increased the dangers of the wall falling, and he called the attention of Cuthbertson to this, but the latter assured him there was no danger, and ordered pursuer to carry out his instructions with the plant supplied.” “The pursuer accordingly proceeded to carry out the instructions so received, and had removed two ‘plints,’ and when in the act of loosening a third ‘plint’ the wall upon which he was standing and the ‘plint’ he was removing simultaneously gave way, and he was precipitated to the ground, and received the injuries after condescended On.” He further averred that the accident was caused by the defender's failure to provide a scaffold, and the tools and plant necessary for the work; by the negligence of Cuthbertson, who had the superintendence of the work entrusted to him, in failing to erect a scaffold and supply the pursuer with the necessary tools; and by his conforming, as he was bound to conform, to Cuthbertson's negligent order to go and work on the top of the wall.

The pursuer pleaded—“(1) The pursuer having been injured, and having suffered loss and damage thereby, through the fault of the defender in failing to supply the necessary and proper machinery and plant, and in carrying on the work in question on an unsafe and defective system, defender is liable in reparation. (2) The accident in question having occurred by reason of the defect libelled on, in the condition of the machinery or plant connected with or used in the defender's business, defender is bound to recompense pursuer therefor under the Employers Liability Act 1880, section 1, subsection (1).”

The defender pleaded—“(1) The action as laid is irrelevant, and does not support the prayer of the petition.”

Upon 23rd December 1890 the Sheriff-Substitute ( Cowan) dismissed the action as irrelevant.

“ Note.—The pursuer avers in the second article of his condescendence that the wall on which he was set to work was ‘in a very dilapidated condition, and “bulged” or swung out in the centre,’ and in the fifth article that the placing of certain planks or ‘plints’ against the wall, to facilitate the lowering of the copestone which he was set to take down, ‘appeared to him to increase the danger of the wall falling.’ He further avers that ‘he called the attention of Cuthbertson (his overseer) to this, but he assured him there was no danger, and ordered him’ to proceed.

“In these averments the Sheriff-Substitute considers that there is disclosed by the pursuer such a knowledge of danger in the work to which he was put as bars him from recovering damages. Indeed, the knowledge led to his calling the attention of his foreman to it, whose assurance, however, he seems to have accepted. The cases deciding against a workman in such circumstances are, as the Sheriff-Substitute humbly thinks, too clear to justify a remit to probation before answer.”

Upon 14th January 1891 the Sheriff ( Cheyne) recalled the Sheriff-Substitute's interlocutor, and allowed the parties a proof before answer.

“ Note.—I do not doubt that there may be cases in which the danger incurred by obeying an order is so obvious that a workman

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injured while executing the order will not, notwithstanding that he has pointed out the danger to his employer or his superior in the service, be within the protection of the statute; but it is manifestly impossible, unless the provision contained in subsection (3) of section 2 is treated as meaningless, to affirm that in all circumstances working in the face of a known danger bars action at the injured workman's instance. The question is always, as it seems to me, one of circumstances, and that being so, the present case cannot in my opinion be disposed of without a proof.”

The pursuer appealed for jury trial.

The defender argued—The Sheriff-Substitute was right to refuse proof on the ground of irrelevancy. Taking the averments of the pursuer as true, it showed that he was working in the face of a known danger, and upon the authorities he could not recover under these circumstances— M'Ternan v. White & Bee, January 25, 1890, 17 R. 368; M'Gee v. Eglinton Iron Company, June 9, 1883, 10 R. 955; Fraser v. Hood, December 16, 1887, 15 R. 178.

Counsel for pursuer was not called on.

The Court approved of this issue for the trial of the cause—“Whether on or about the 10th day of September 1890, and at or near an old stone wall at Bridge of Weir, the pursuer, while in the employment of the defender, was injured in his person through the fault of the defender, to the loss, injury, and damage of the pursuer. Damages claimed, £241, 16s. sterling.”