Scottish Court of Session Decisions

James Smith, bottler, with consent of his father Thomas Smith, raised in the Sheriff Court at Edinburgh an action against Walter. Forbes & Company, aerated water manufacturers, Beaver-bank, Edinburgh, for £300 sterling as solatium and damages for personal injuries sustained by him, in the event of liability being determined at common law, or otherwise for £156 under the Employers Liability Act 1880.

The pursuer averred—“(Cond. 1) The pursuer is a bottler of aerated waters, and has been brought up to that trade. (Cond. 2) On or about the 28th of September last the pursuer entered the employment of the defenders as a bottler. The defenders have in their works a steam filler which forces water and gas simultaneously into bottles containing essences. The bottles used are fitted with screw stoppers, and are known as Riley's patent. The stoppers are turned loosely into the bottles after the essences are in. The steam filler is so constructed that when a bottle in the above stage is placed in position to be filled, the stopper is partially unscrewed or removed by the filler, the water and gas forced in, and the stopper replaced as before. When the filled bottle is removed from the machine the stopper requires to be screwed up tightly by the hand to prevent the gas escaping. It was the pursuer's duty to place bottles in the filler, remove them again, and turn the screw stoppers tight.… (Cond. 3) On or about the 29th of September (the day after the pursuer began work with the defenders) he was engaged placing bottles in and removing them from the filler as above described. When in the act of tightening up a stopper one of the bottles burst in his hands, and a piece of glass from the broken bottle struck the forefinger of his right hand, cutting into the middle joint. The pursuer has suffered great pain, and has been, and still is, under daily medical treatment. It is believed that the pursuer has permanently lost the use of the finger, and will be deprived for life of the free use of his right hand.… (Cond. 4) In all aerated water manufactories the bursting of bottles is of constant occurrence, and it is the usual and proper precaution of the trade to supply the bottlers and other workers with rubber or worsted gloves and masks. This precaution is all the more necessary where, as with the defenders, a steam filler is used. The defenders, though they were well aware of the highly dangerous character of the work pursuer had to do, provided no such safeguard, and in consequence of the want thereof the pursuer has been injured as above condescended on. It was the duty of the defenders to supply masks and gloves, and they have been repeatedly spoken to on the subject, but have disregarded all suggestions. There have been previous accidents in their works from the same cause.… Explained that none of defenders' employees wore masks or gloves, and that pursuer asked Mr Connor, one of defenders' firm, for a mask and gloves, but said request was refused or disregarded. It was not only the duty of defenders to have a supply of masks and gloves, but to see that their employees wore same.” …

The defenders pleaded, inter alia—“(1) The action being irrelevant, ought to be dismissed, with expenses to defenders.”

On 16th December 1896 the Sheriff-Substitute ( Maconochie) pronounced the following interlocutor:—“Finds that a relevant case has been stated by the pursuer; therefore repels the first plea-in-law for the defenders; allows both parties a proof of their respective averments on record, and to the pursuer a conjunct probation.”

Note.—“The pursuer avers (Cond. 1) that he is ‘a bottler of aerated waters, and has been brought up to that trade’; that (Cond. 4) ‘in all aerated water manufactories the bursting of bottles is of constant occurrence, and it is the usual and proper precaution of the trade to supply the bottlers and other workers with rubber or worsted gloves and masks’; that (Cond. 5) he asked one of the defenders ‘for a mask and gloves, but said request was refused or disregarded,’ and that he continued working

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until he was injured by the bursting of a bottle. The defenders maintain that the action is irrelevant either at common law or under the Act of 1880. At this stage the pursuer's averments must be assumed to be true, and he avers that it is necessary for the safe conduct of a bottling business, and particularly of the defenders’ business (in which a steam filler is used), that gloves and masks should be supplied to the workmen. The averments bring home to the defenders themselves the direct responsibility for the omission to supply this necessity, and therefore, as was observed in similar circumstances in the case of Wallace v. Culter Paper Mills Company, Limited, June 23, 1892, 19 R. 915, the claim of the pursuer is one at common law, and does not depend on the Employers Liability Act 1880. The defenders, however, maintain that the maxim volenti non fit injuria applies to the case. I think that the averments I have quoted disclose a case of knowledge of the danger on the part of the pursuer, but the question remains, whether in continuing to work after the defenders had neglected or refused to supply him with gloves, he by doing so accepted the risk in the sense of agreeing to relieve his employers of any injury which might be caused by their fault. The defenders rested their case mainly on the class of cases of which M'Gee v. Eglinton Iron Company, 10 R. p. 955, may be taken as the type, and but for two subsequent cases I should have felt myself bound under the earlier authorities to hold that the circumstances disclosed on record were such as to show that the pursuer had taken the risk upon himself. It seems to me, however, that the case is ruled by the decision in Smith v. Baker & Sons, L.R., 1891, A. C. 325, and the case of Wallace above cited. These cases, I think, decide that where such averments are made as in this case, that is to say, where it is admitted that the danger was known to the pursuer, but where there is nothing to lead to the conclusion that the pursuer agreed to relieve his masters from liability for any injury caused through their fault beyond the mere averment that he went on working after he had asked that safeguards against the known danger should be provided, then the law is that the question whether the workman was merely sciens or was also volens when he so continued working, is a question of fact which must be decided by the judge or the jury, as the case may be, on the evidence led in the cause. On these grounds I have allowed parties a proof of their averments.”

The pursuer appealed for jury trial to the Court of Session, and proposed an issue in common form.

When the case came up for adjustment of issue the defender objected to the relevancy of the action, and argued—The pursuer averred that he was brought up to the trade of bottling, that in the course of bottling aerated water the bursting of the bottles was of frequent occurrence, and that he asked for mask and gloves and was refused them. These statements showed that he knew of the danger, and he must be presumed to have undertaken the risk occurring in the ordinary course of his employment. This was not a case where the pursuer had gone on working for two or more months without an accident occurring; he himself averred that accidents were of frequent occurrence, and he was injured the day after he entered the defenders' employment. These circumstances distinguished this case from Smith v. Baker, L.R. (1891), A.C. 325. They were entitled to take advantage of any qualifications and limitations in that case, as it overturned former decisions and was decided by a majority. On similar grounds the case might be distinguished from Wallace v. Culter Paper Mills Company, Limited, June 23, 1892, 19 R. 915. In that case the pursuer had received a promise that the defect would be remedied, which showed that he had not consented to work on in face of the danger. In the present case the request of the pursuer for gloves had been definitely refused. The present case was analogous to Webster v. Brown, May 12, 1892, 19 R. 765.

Argued for pursuer—The Sheriff's judgment was sound. The cases of Smith v. Baker and Wallace v. Culter Paper Mills Company, Limited (supra) were both authorities to he followed in the circumstances stated on record. The use of gloves in an employment of this kind was as necessary as the fencing of dangerous machinery, and the pursuer averred that it was a general practice.

At advising—