Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Aberdeen by Mrs Isabella Donald or Rae against Alexander Milne & Sons, builders and contractors, Aberdeen. The pursuer craved decree for £500 as damages for the death of her husband George Rae, mason, who at the date of his death was in the employment of the defenders.

The case was at common law only, and not also under the Employers Liability Act.

The pursuer averred—“(Cond. 2) On the 19th day of December 1895 the said George Rae was, in the ordinary course of his employment under the defenders, engaged in building the south most gable of a house in Hose field Road, Aberdeen, for the mason work of which the defenders were contractors, when suddenly, without warning, the part of said gable on which he was working gave way, and he was precipitated to the ground, a distance of 33 feet or thereby, and was killed. (Cond. 3) The said wall was of weak and defective construction, in

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respect (1) that the lime used contained an undue quantity of sand, was insufficiently worked, and was otherwise of insufficient quality, and much inferior to what is necessary for stability and customary to use in the building of walls of the description of that in question; and (2) that no proper ‘header’ r binding stones were used in the building of said wall by the defenders, the stones used being insufficient in size, and otherwise unsuitable for that purpose. (Cond. 4) During the time the said wall was being built the weather was damp and rainy, and was very unsuitable for building operations. Notwithstanding this, the defenders, especially looking to the construction of the building and the insufficient quality of the materials used, unduly and recklessly hurried on the erection of the wall, and did not allow one course to be sufficiently dry before another was put on, with the result that the wall was in a very soft and raw condition. On the said 19th day of December 1895, while the wall was in this state, defenders, also contrary to established custom, suffered or permitted the contractor for the carpenter work of said house to drive dooks into the said wall, with the result that the said mason work was thereby shaken and weakened. (Cond. 5) The defenders were guilty of gross fault and culpable negligence (1) in building the said Wall of insufficient materials; (2) in hurrying on the work during wet weather; and (3) in permitting the dooking to be done as aforesaid. The said wall collapsed in consequence of all or one or other of these defects, and the death of the said George Rae was therefore the result of the gross fault and negligence of the defenders.”

The pursuer pleaded, inter alia—(1) The pursuer's husband having met his death through the gross fault and culpable negligence of the defenders, they are liable to her in damages.

The defenders pleaded, inter alia—(1) The pursuer's averments in so far as material are irrelevant, and the case ought to be dismissed with costs.

On 14th July 1896 the Sheriff-Substitute ( Duncan Robertson) issued the following interlocutor:—“Having considered the cause, repels the first plea-in-law for the defender, and with reference to the annexed note, allows both parties a proof of their respective averments on the closed record, and to the pursuer a conjunct probation; and appoints the case to be enrolled that a diet of proof may be assigned.

Note.—I think there must be inquiry here, though I confess that the allegations with reference to the first alleged fault, viz., the quality of the lime used, are not altogether satisfactory. If the case for pursuer had been confined to this, I think probably I should have desiderated some statement associating the defenders themselves with the manner in which the lime was mixed, and the way it was worked.

In allowing proof I reserve the defenders' right to show that with reference to this, not they, but deceased's fellow-workmen were responsible for the condition of the lime. With reference to the rest of the case, I think it is relevant, though I quite see that pursuer may have difficulty in proving that the faults alleged were such as to render defenders liable.”

The defenders appealed to the Sheriff ( Crawford), who by interlocutor dated 5th October dismissed the appeal, affirmed the judgment of the Sheriff—Substitute appealed against, and remitted to him to proceed in the cause.

The defenders appealed to the Court of Session for jury trial, and argued—The pursuer's averments were irrelevant. There was no averment of fault against any individual. As to the lime, it was not said that defenders failed to supply proper material. It was not averred that the improper mixing was due to them. There was nothing in the averment inconsistent with the defect complained of being due to the fault of a fellow servant of the deceased or even of the deceased himself. In fact that was the most reasonable interpretation of it. The same observations applied to the allegations regarding the binding stones. As to article 4, it was not stated who hurried on the work. By itself, apart from the averments in article 3, this article did not set forth a relevant case, and if article 3 was irrelevant, so also was article 4, which depended on it. The allegation as to the action of the carpenter was clearly irrelevant as against the present defenders.

Argued for the pursuer—The defenders were responsible for the quality of the lime and stones used. The defenders were not entitled to argue that the condition of the lime and the size of the stones used were due to the fault of a fellow-servant of the deceased, for there was no plea of collaborateur. The defenders ought to have known that the wall was not safe owing to bad weather, and they were responsible for the result of hurrying on the work in such weather. The defenders ought either to have prevented the carpenter driving dooks when he did, or if that was beyond their power, they ought not to have allowed the deceased to work on the wall when weakened by the carpenter's operations. The pursuers averments showed that the defenders had failed to exercise due care for the safety of their servant, the deceased, who had in consequence been killed, and the defenders were responsible to the pursuer for his death.