Scottish Court of Session Decisions

In 1892 John Gardiner, builder, Falkirk, contracted with the Building Committee of the Wesleyan Methodist Church to execute the mason work of a new church. J. & A. Main, joiners, undertook, in a separate contract with the Building Committee to do the joiner and carpenter work. By their contract the joiners undertook to furnish all necessary scaffolding, &c., “where required by the mason,” and they erected it at the place indicated by themason.

On 2nd September 1892, three days after the scaffolding had been put up, it gave way, and three of the mason's workmen fell to the ground and were injured.

They raised actions for damages against their employer John Gardiner. He defended the action, pleading that the joiners were the only parties liable, and intimated the actions to Messrs Main, who refused to admit liability or to defend the actions. Subsequently, after again giving notice to Messrs Main, Gardiner effected a settlement with the workmen by paying them sums of money.

On 25th August Gardiner raised an action in the Court of Session against Messrs Main, concluding for payment of £373, being the amount paid by him to his injured workmen, with the expenses incurred by him in defending the action at their instance, or alternatively for half of that sum.

The pursuer averred—“According to the usual custom in building undertakings the contract for the erection of the masons' scaffolding was not made directly between the mason and the joiner, but was included in the contract between the Church Committee and the defenders, the Church Committee contracting with the defenders on behalf of the pursuer, and taking the defenders bound to pursuer to erect the scaffolding as required by him.” He further averred that the accident had occurred through the fault of the defenders in neglecting to supply a “needle”of sufficient strength to support the weight imposed upon it; that the defenders had acted negligently and culpably in this, being bound to use care and skill in making a scaffolding for the use of the masons; that the pursuer was entitled to rely on their using this care; that the faults were discoverable by the defenders through the ordinary skill of their trade, but not by the pursuer; and that the defenders were bound to relieve the pursuer of the sum paid by him, or, in the event of its being proved that there was joint delinquency, of half of it.

The defenders averred that the accident had occurred by the pursuer placing too heavy weights upon the scaffolding; and that they were under no contract with or obligation to him, being responsible solely to the Church Committee.

They pleaded, inter alia-“(1)No title tosue. (2) The pursuer's averments are irrelevant.”

The Lord Ordinary ( Kyllachy) on 28th February 1894 sustained the defenders' first two pleas and dismissed the action.

“ Opinion.—The pursuer in this case was the contractor for the mason work of a church in course of erection at Falkirk,

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and he sues the defenders, who were the contractors for the carpenter work, for relief of certain damages found due by him (the pursuer) to some of his own workmen, in connection with an accident which occurred through the fall of a scaffold erected by the defenders for the use of the pursuer's men.

“The peculiarity of the case is, that there was no direct contract between the pursuer and the defenders, the scaffolding being erected by the defenders under their contract with the Church Committee, and the pursuer's contract with the Church Committee making no reference to the subject. The defenders, however, undertook to the Church Committee ‘to erect all necessary scaffolding, &c., where required by the mason,’ and the pursuer avers that ‘this was in accordance with the usual custom in building undertakings, and that, according to such custom, the Church Committee contracted with the defenders on behalf of the pursuer, and took the defenders bound to the pursuer to erect the scaffolding as required by him.’

What I have to decide in the first place is, whether upon the averments I can sustain the action as an action ex contractu, or can allow a proof of the alleged custom in order to set up the alleged contract in the pursuer's behalf.

Now, we have had produced in process both the contract for the mason work and the contract for the carpenter work, and these documents are admitted to have constituted the whole contract to which the pursuer appeals. At all events, it is not said that beyond them there was any further agreement, written or verbal, bearing on the subject. The first point therefore is, whether these documents contain anything which supports or leaves open the pursuer's contention, viz., that the common employer, the Church Committee, made a contract with the defenders (as regards the scaffolding) on behalf of the pursuer.

Now, I am not able to hold that the two contracts, read together or separately, can be so construed. They are just ordinary building contracts made between tradesmen and their employer, and contain, neither of them, so far as I can see, anything which can by any stretch of construction set up a contract as between the tradesmen themselves. Each makes his own bargain with the Church Committee, and as regards the scaffolding the position is just this—that the Church Committee being impliedly, I suppose, bound to provide scaffolding for the mason, contracted with the carpenters that they should furnish what scaffolding was required. The carpenters look to them alone for payment, and they are their only employers. They employed the carpenters, it may be, in order to the performance of their obligation to the mason, but that is a different thing from employing them on the pursuer's behalf.

But if this be the just construction of the writings produced, is there any room for proof of custom? I can see none. The custom alleged simply comes to this—that such contracts are ordinarily read as importing something different from what they express. Now, that is not in my opinion an averment of custom which can be admitted to proof.

The pursuer, however, argued that he may maintain his action as one of relief upon grounds apart from contract, and what he suggests is this—he admits, as he must admit (looking to the issue of the suit), that the injured workman had a good action against him (his master), on the ground that he, the master, had negligently failed to see to the safety of the scaffold, but he contends that while this was so, the workmen had also a good action against the defenders, on the ground that they (the defenders) negligently executed an unsafe scaffold, and thereby laid, in effect, a trap for the workmen whom they knew would use it— Heaven, 11 Q.B.D. 503. This being so, he and the defenders were, he says, jointly liable ex delicto, and that although the workmen chose to go against him (the pursuer) alone the liability ought to be equal, as it would be in the case of a joint and several debt. He argues, in other words, that although it is a general rule that there can be no relief as among wrongdoers, that does not apply where the wrongdoing consists only in negligence, the principle being, he says, merely this, that the law will not interfere as between the parties who, having done some act legally or morally criminal, have got into dispute as to their respective responsibilities.

Now, I understand that a question of this kind is at present being considered by the House of Lords, and I should have been glad to wait the English judgment in that case if it had been expected immediately. As it is, however, I am afraid I must decide the case upon the law as I myself understand it, and according to my view it is not possible to draw the distinction which the pursuer suggests. I do not think it is possible to distinguish in this matter between different classes of delicts, between, for example, acts of omission and acts of commission, or acts or defaults inferring moral turpitude, and acts or defaults which infer only carelessness. Nay, more, I doubt, even where it is possible to distinguish between personal delicts and delicts which are not personal, but merely imputed — imputed, I mean, upon the doctrine of agency. And as to the principle of the rule referred to, I rather think that the true principle is (1) that contribution always requires a contract express or implied, and (2) that courts of law cannot undertake to estimate degrees of culpability or apportion among persons in fault the damage suffered through their own wrong. In the present case I do not know upon what principle the damage due to the injured workman could be at all fairly divided. It is not likely that the pursuer and defenders were equally to blame, and if not equally to blame, I see no principle for making them bear the loss equally as here proposed.

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On the whole, therefore, I am of opinion that the action must be dismissed.”

The pursuer reclaimed, and argued—He was liable to his workmen, the liability not being dependent upon personal negligence but upon contractual relation— Baird v. Addie, February 8, 1854, 16 D. 490. He had contracted with the defenders—the Church Committee acting as his agents for this purpose—for a safe scaffold. This contract not having been properly implemented, the pursuer was liable to his workmen, but was entitled to relief from the defender— Raes v. Meek, August 8, 1889, 16 R. (H. of L.) 31; Robertson v. Fleming, May 30,1861, 4 Macq. 167; Pollock v. Wilkie, July 17, 1856, 18 D. 1311; M'Intyre v. Gallacher, November 6, 1883, 11 R. 64; Colt v. Caledonian Railway Company, August 3, 1860, 3 Macq. 833; Francis v. Cockwell, 1870, L.R., 5 Q.B. 184; Langridge v. Levy, 1837, 2 M. & W. 519; George v. Shrivington, 1869, L.R., 5 Ex. 1; Thomas v. Winchester, 1852, Bigelow's Leading Cases, 604; Campbell v. Morrison, December 10, 1891, 19 R. 282; Edwards v. Hutcheon, May 31, 1889, 16 R. 694; M'Gill v. Bowman & Company, December 9, 1890, 18 R. 206. The workmen would have had a claim against the defenders, therefore the pursuer having satisfied the claim of the workman, was entitled to come to the defenders to be recouped. In the cases of Smith v. London and St Katherine's Dock Company, 1868, L.R., 3 C.P. 326, and Dalyell v. Tyrer, 1858, 28 L.J., Q.B. 52, there was no contractual relation between the pursuer and defender, who notwithstanding this was held liable. The defenders were the primary cause of the accident, and were therefore bound to recoup the pursuer— Thrussell v. Handy—side & Company, 1888, L.R., 20 QBD 359. In the present case the scaffold had been erected for the benefit of the workmen, and it was therefore differentiated from the case of Nicolson v. Macandrew & Company, July 7, 1888, 15 R. 859, which was decided against the pursuer on the ground that no such averment had been made. Even if there had Been negligence on the pursuer's part here, he was entitled to contribution by the defenders, there being a joint delinquency. There was no authority in the law of Scotland for the non liability of joint delinquents — Palmer v. Wick Steamship Company, 1894, L.R., App. Cas. 318.

Argued for the defenders—The pursuer after compromising with the workmen had no title to come without any assignation from them of their claims and sue the respondents. In his averments he denied any liability on his part, but he went on to maintain that he was bound to make payment to the workmen, and that therefore the fact of his having compromised did not bar him from an action of relief. The two statements were irreconcileable. In fact, there was no legal liability upon the pursuer, and therefore he had no title to bring an action of relief— Ovington v. M. Vicars, May 12, 1864, 2 Macph. 1066; Weems v. Mathieson, May 31, 1861, 4 Macq. 215; Kettlewell v. Paterson & Company, November 25, 1886, 24 S. L.R. 95; Sneddon v. Addie, June 16, 1849, 11 D. 1159; Milne v. Townsend, June 3, 1892, 19 R. 230. 2. The cases quoted by the pursuer to show that he was liable to the workmen did not help him against the defenders, his claims against them, if he had any, being not commensurate with those of the workmen. The former could only be for loss of time from the falling of the scaffold or loss of his workmen's services, while the latter were for personal injury — Indermaur v. Dames, 1867, L.R., 2 C.P. 311. The general rule was that a manufacturer supplying an article not dangerous in itself was not liable to any third party— Winterbottom v. Wright, 1847, 10 M. & W. 109; Longmede v. Holliday, 1851, 6 Ex. 761; Collis v. Seldon, 1868, L.R., 3 C.P. 495. The case of Langridge v. Levy was distinguishable from the present, because there was fraud on the part of the defender, while here that was not averred. The defenders' contract had been made with the Church Committee; it was fulfilled by their taking over the scaffold; there was no contract between the joiner and mason; and therefore no liability on the part of the defenders to the pursuer. The defenders might be bound to relieve the Church Committee in the event of an action being raised against them by the workmen, but no direct action against the defenders would lie.

At advising—