Scottish Court of Session Decisions

This was an action at the instance of Walter Mackay, bottomer, against John Watson, Limited, Earnock Colliery, Hamilton, and John Bolton, engineman there, brought in the Sheriff Court of Lanarkshire at Hamilton. The pursuer craved decree against John Watson, Limited, for £500, or alternatively for £186 under the Employers Liability Act, and against Bolton for £500, or otherwise for decree against both defenders jointly and severally or severally for £500.

The pursuer averred that up to 29th July 1896 he was a bottomer in No. 1 pit, Earnock, of which John Watson, Limited, were the owners, and at which the defender Bolton was engineman; that the lower pit-bottom where he worked was approached by a double line of rails, upon which the hutches were brought and run into their proper places on a winding-cage, with a view to the coal being raised to the surface; that some weeks before the accident to the pursuer, the rails got out of repair, and that though repaired by the defenders, John Watson, Limited, they soon became defective again, the result of which was that the hutches in running along them, fell off the rails. The pursuer

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further averred—“(Cond. 6) At the time the pursuer met with his injuries the right hand rails approaching the cage became loose and disordered, by which, between eleven and twelve o'clock forenoon of Wednesday, 29th July 1896, a hutch filled with coal again fell off the rails close to the cage, and when the pursuer and his companion bottomer were engaged replacing the hutch, the pursuer received his injury … The pursuer and his companion set about putting the hutch on the rails, and the pursuer in order to replace it went to the end of the hutch near to the cage, and while with his back to the hutch so as to lift it, while his companion straightened the rail so as to put it in line and place the hutch upon it, and while the pursuer was in a bent position lifting the hutch from behind, with the upper part of his body partly bent over upon the cage, the cage without warning began ascending, and the pursuer's breast was caught by the end of the cage, and his body was partly forced up the shaft. The cage in ascending, first caught the pursuer's breast, then gliding upwards caught him by the chin, and he was forced up between the cage and the back scaffolding of the upper deck or platform. The pursuer was carried upward some three feet or thereby, when, the ascent of the cage being stopped, he fell back into the seat of the pit-bottom. The pursuer believes and avers that there was a defect in the checking-power of the engine, which prevented or hindered or interfered with its prompt stopping. After the pursuer met with his injuries, the defenders John Watson, Limited, had the defects overhauled and repaired, and the engine has gone smoothly since, the break since then checking correctly. Denied that the engineman was sufficiently qualified for the duties entrusted to him, his previous experiences not warranting such a responsible position.… (Cond. 7) In consequence of the defective condition of the defenders' (John Watson, Limited) plant at the pit-bottom as described, and in the engine, or in the break, and the want of sufficient qualification on the part of the engineman, the pursuer received the injuries complained of … (Cond. 8) Alternatively, the other defender John Bolton, who acted as engineman, and in charge of the engine at the said pit by which the cages were lifted and lowered, is responsible for the injuries sustained by the pursuers, and liable in reparation to him therefor. The defender as engineman, when working his engine for regulating the position of the two cages in the shaft of the pit, lifted the cage at which the the pursuer was engaged without receiving a signal to do so, or otherwise so worked the engine under his charge in the condition in which it then was in an improper manner. By lifting the cage without receiving a signal, or by his want of care or mismanagement, or want of sufficient control of his engine, the said defender, as engineman foresaid, caused the injuries to the pursuer.”

The defenders John Watson, Limited, pleaded inter alia (1) The pursuer's statements and action are irrelevant.

The defender Bolton did not dispute the relevancy of the averments as against him.

The Sheriff—Substitute ( Davidson), by interlocutor dated 11th December 1896, repelled the first plea-in-law for the defenders John Watson, Limited, and allowed a proof before answer quoad them, and a proof quoad the other defender.

He added the following note;—“I am very doubtful if the pursuer has a relevant ground of action against John Watson, Limited, on the ground that the engine was not in proper order, for he is not clear in his statement as to how any defect in the engine affected him, his case being evidently that the engineman started the cage without a signal. I do not think that the alleged defect in the rails is relevant, because the accident cannot be said to be directly due to it, even if the pursuer's averments are all made good. But he has a statement that the engineman was not a sufficient qualified person for his post, through lack of experience, and it seems to me that he is entitled to a proof on that point.”

The pursuer appealed to the Second Division of the Court of Session for jury trial, and lodged two issues for the trial of the cause. The first was whether the pursuer while in the employment of John Watson, Limited, had been injured through their fault, and damages were laid at £500, or alternatively under the Employers Liability Act at £168.

The second issue was, whether the pursuer had been injured through the fault of the defender Bolton, damages being laid at £500.

The defenders John Watson, Limited, disputed the relevancy of the pursuer's averments as against them, and argued—There was no case stated under the Employers Liability Act, apart from the case at common law. At common law no fault was relevantly averred against them. It was not the duty of these defenders to have rails which never went out of repair, but even if the rails were defective it clearly appeared from the pursuer's averments that their condition was not the cause of the accident. However defective the rails might have been nothing would have happened to the pursuer, according to his own averments, if the engineman had not lifted the cage without a signal, and the engineman's act was the sole cause of the accident, for which these defenders were not responsible, the engineman being a fellow-servant of the pursuer. As to the alleged defect in the engine, it was not averred with sufficient specification, but apart from that it was plain that the checking-power could not have been very deficient, for it was stated that the cage only moved 3 feet before it stopped. Moreover, it was not averred that if the checking-power had been sufficient the accident would have been prevented. The defect in the checking-power could only be very remotely the cause of the accident, because there would have been no necessity

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for checking the engine, but for the fault of the engineman in improperly lifting the cage. The averments regarding the want of qualification in the engineman were irrelevant for want of specification. Nothing was set forth in explanation of the bare statement that he was not sufficiently qualified, except the single slip which was the cause of the accident.

Argued for the pursuer—Defects in the rails were relevantly averred. These defects were the cause of the accident, for if it had not been for these defects the hutch would not have gone off the rails, and the pursuer would not have been obliged to go into a position in which he was liable to injury, if the cage were lifted by mistake, which might quite probably happen at any time. He was injured while engaged in remedying a defect in his employers' plant, and his employers were liable to him for injuries so sustained. See Wallace v. Culter Paper Mills Company, Limited, June 23, 1892, 19 R. 915. Where a workman was placed in a position of danger owing to a defect for which the master was responsible, the defence of collaborateur would not be sustained even if the act of a fellow-work-man was the proximate cause of the accident— Murdoch v. Mackinnon, March 7, 1885, 12 R. 810; Edgar v. Law & Brand, December 15, 1871, 10 Macph. 236, per Lord Ardmillan at page 240; Black v. Barclay, Curie & Company, November 19, 1896, 34 S.L.R. 123. The averments as to the engine and the want of qualification in the engineman were relevant and sufficiently specific.

At advising—