Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Greenock by Jane Brown or Thomson, widow of James Thomson, joiner, Greenock, three of their children, and Mrs Thomson as tutrix and administatrix-in-law for their three other children who were in pupillarity, against Scott & Company, shipbuilders, Greenock. The pursuers sought decree for £1000 at common law, or otherwise for £280, 16s. under the Employers Liability Act 1880, as reparation for the death of James Thomson, who was killed while in the employment of the defenders.

The pursuers averred as follows:—“(Cond. 3) For some time prior to the 9th of April 1897 the deceased James Thomson was working in the employment of the defenders, and on the above date he was instructed by their foreman to go on board the vessel ‘Vanduara’ to assist in fixing on the storm rail to the side of the deck-house of said vessel, as she was then lying in the Cartsburn Graving Dock, Greenock, the property of the defenders, the said vessel having been placed in the custody of said defenders by the owner thereof, Mr Stewart Clark, in order that certain repairs might be executed thereon by said defenders, under whose exclusive control and management the said vessel was at the time. (Cond 4) The deceased tried to fix the end of the storm rail to the bracket on the deck-house, but the end would not go in, and he then turned the rail end for end in order to try the other end, and when so doing had to get back as far as he could on the deck to make room to clear the captain's bridge. (Cond 5) When going back as before mentioned, he came against two doors on the side of the said vessel, and in consequence of their not being bolted he fell through the same into the dry dock, a distance of about 20 feet, and was so seriously injured that he died in a short time thereafter. (Cond. 6) The deceased was instructed by Daniel Sutherland, his foreman, to go on board the ‘Vanduara,’ along with an apprentice named Alexander Smith, who was along with him when he was so severely injured as above mentioned, and he had only been on board the said vessel about six or seven minutes before the accident occurred to him. (Cond. 7) The accident to deceased was caused by the fault and negligence of the defenders, or those for whom they are responsible, and in particular the said Daniel Sutherland, their foreman, who was a person entrusted with superintendence by the defenders, and whose duty it was to have warned the deceased that said doors, being the doors of the gangway space, were not bolted but were shut, and deceased was entitled to assume that they were bolted; but the defenders and their said foreman failed to do so, with the result that deceased, relying, as he was entitled to rely, on said doors being bolted, fell against same in the course of his work as above mentioned, and was so seriously injured that he shortly thereafter died. The sole or principal duty of the said Daniel Sutherland was one of superintendence, and it was his duty to inspect the ways, works, and plant connected with the work in which said defenders were engaged. The fact of the doors of the gangway space not having been bolted arose from or was not discovered or remedied owing to the negligence of the said Daniel Sutherland, for whom the defenders are responsible, or owing to the negligence of the said defenders themselves.”

The pursuers pleaded “they were entitled to reparation (1) at common law, or (2) and alternatively under the Employers Liability Act 1882. sec. 1, sub-secs. 1, 2, and 3.”

The defenders pleaded that the pursuers' statements were irrelevant.

The Sheriff-Substitute ( Henderson Begg) by interlocutor dated 13th October 1897 dismissed the petition as irrelevant, adding the following Note:—

“Note.—It seems to me that, on the pursuers' own showing, the deceased was more to blame than any one else for the accident. The work on which he was engaged did not necessitate his going backwards against the doors of the gangway space, and in doing so, without knowing whether they were bolted or not, he appears to me to have failed to exercise reasonable care. The fact that the doors were not bolted at the time is insufficient, in my opinion, to infer negligence on the part of the defenders or their foreman, for a vessel which is being repaired in a graving dock is naturally in a state of dishabille. In repairing vessels, as well as constructing them, workmen must take the risks incident to such employment. Forsyth v. Ramage & Ferguson, 25th October 1890, 18 R. 21. The pursuers now blame the foreman for having failed to warn the deceased that the doors were not bolted; but that circumstance was as patent at least to the deceased as to the foreman. Even assuming that some blame attached to the foreman, I think that there was such contributory negligence on the part of the deceased as to preclude the present claim of damages.”

The pursuers appealed to the Second Division of the Court of Session, and argued—The defenders' foreman either did not know that the doors were shut, but unbolted, or he knew but failed to inform

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the deceased. In either case he was guilty of negligence, for if he did not know he failed in his duty of inspection and superintendence, and if he knew and failed to tell the workman, he failed in proper care for his subordinate's safety. It was the foreman's, not the workman's, duty to see to the condition of these doors. The workman's business was to do his work, and not to take precautions against the chance of his meeting with accident through such a trap as this. The workman had not the same opportunity or concern to find out about the doors as the foreman had. The doors ought to have been either open, or else shut and bolted, but not shut and unbolted. The danger did not arise from a defect in the doors, but from the doors being left unbolted. It was not therefore the kind of case in which the master escaped liability on the ground that he was not responsible for the plant of another. See M'Lachlan v. ss. “Peveril” Company, Limited, May 27, 1896, 23 R. 753. A duty on the part of the foreman, and a breach of that duty, were clearly averred by the pursuers, and they were entitled to enquiry. What the foreman's duty was, was a question of fact to be determined by evidence, if denied. There was no such admission of contributory negligence on the part of the deceased as to entitle the Court to dismiss the case without inquiry.

Argued for the defenders—(1) The pursuers had presented no case at common law, and the case as laid at common law ought to be dismissed. (2) It appeared from the pursuers' own averments that the accident was due to the workman's own carelessness. He ought to have been looking out for his own safety, and he failed to do so. He was accustomed to work in ships which were under repair, and he knew, and was bound to take precautions against, the dangers naturally resulting from the ship being under repair. If he failed to do so, and in consequence met with his death, his representatives had no claim against his employers— Forsyth v. Ramage & Ferguson, October 25, 1890, 18 R. 21. (3) There was no relevant averment of fault against the defenders' foreman. There was no averment that he was bound to see that the doors were bolted if they were shut. The averment here was very much the same as the averment made against the forewoman in Moore v. Ross, May 24, 1890, 17 R. 796, which was held irrelevant. (4) The defenders were not liable for an accident arising through a defect in the plant of another person when entrusted to them— M'Lachlan v. ss. “Peveril” Company, Limited, cit., and Robinson v. John Watson, Limited, November 30, 1892, 20 R. 144.