Scottish Court of Session Decisions

David Flynn, labourer, Glasgow, sued his employer’ William M'Gaw, mason, Mary-hill, for damages for personal injury, both at common law and under the Employers Liability Act 1880.

He averred that during September 1890 he and two other men were under the superintendence of Samuel Merrigan, a foreman in the employment of the defender, pulling down an old house in Glasgow. He was bound to conform to Merrigan's orders. Upon 23rd September Merrigan ordered the pursuer to go up to the floor of the first flat of the building in order to remove the flooring and joists. Several of the joists had already been removed, and the floor was covered with the bricks, lime, and rubbish of the partition walls of the flat which had been taken down. While clearing away the rubbish preparatory to removing the floor a portion of the floor gave way, and the pursuer was precipitated to the bottom of the building, whereby he received severe injuries.

He further averred—“(Cond. 7) The said accident, and the injuries which resulted to the pursuer therefrom, were due to the fault of the defender, or the said Samuel Merrigan, for whom the defender is responsible. The floor in question was in an insecure state in consequence of its age and the state of decay into which it had fallen prior to the operations in question, and it had been rendered still more insecure and dangerous by the operations of the defender, under which are included the removal of the joists from beneath a portion of it, said

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removal having taken place by the instructions of the said Samuel Merrigan, or the defender, who from time to time personally supervised the work. The pursuer was not aware of the danger he incurred by obeying said order, and he received no warning on the subject. It was the duty of the said Samuel Merrigan to have first ascertained whether the work which he ordered pursuer to do could safely be carried out before giving him said order. Had he done so, the weakness or defect in the floor would have been discovered, and the accident would not have occurred. The said Samuel Merrigan was grossly negligent in ordering the pursuer to proceed to do work at a place which he knew, or ought to have known, was insecure and dangerous, without in any way guarding against such an accident as occurred, or enabling the pursuer to guard against it. (Cond. 8) Alternatively, the defender is responsible for the said accident, in respect that the said Samuel Merrigan was quite incompetent to be left in charge of said operations. Had a skilful foreman been put over the job at which the pursuer was engaged, as ought to have been done owing to the difficulties and dangers connected with it, he would presumably have taken means to guard his gang against dangers such as those which led to the pursuer's accident. The said Samuel Merrigan was not sufficiently skilled or experienced to be entrusted with the direction of such operations, and his want of skill caused or contributed to the accident to the pursuer.”

The pursuer pleaded—“(1) The injuries to the pursuer having been caused through the fault or negligence of the defender, or those for whom he is responsible, the defender is liable in reparation to the pursuer.”

The defender pleaded—“(2) The pursuer's alleged injuries not being due to any fault or negligence of the defender, or of anyone for whom he is responsible, the defender is entitled to be assoilzied. (3) The pursuer's alleged injuries having been caused, or at least materially contributed to by his own negligence, he is not entitled to recover compensation from the defender therefor.”

Upon 23rd January 1891 the Sheriff-Substitute ( Spens) allowed a proof.

The pursuer appealed for jury trial.

The defender argued—The issue proposed ought not to be allowed, as the pursuer had not made any relevant averment of fault on the part of the defender. It was plain from his own averments that he had been engaged in pulling down the old house for some time, and he was as well aware as anyone of the gang in what condition the floor of the first flat was. He ought therefore to have taken care to do his work in a safe manner. It was not enough to say that Merrigan was a foreman to whose orders the pursuer was bound to conform; it ought also to have been averred that he was not ordinarily employed in manual labour. With regard to Merrigan's alleged incompetency, he was not a foreman at all; he was merely labourer, and the pursuer had as much knowledge and skill in the matter as Merrigan himself.

The pursuer argued—His case was relevant. He had averred that Merrigan was a foreman to whose orders he was bound to conform; that he had ordered him to go to an insecure place, which he knew, as a man of skill and under whose superintendence the work had been carried on, was a dangerous place, which the pursuer did not. It was further averred that the foreman was incompetent for the discharge of his duty. In the circumstances the Court ought to allow an issue— M'Aulay v. Brownlie, March 9, 1860, 22 D. 975.

At advising—