Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Glasgow by George Donnelly, quay labourer, against James Spencer & Company, stevedores, Glasgow.

The pursuer craved decree for £150 as damages due to him by the defenders under the Employers Liability Act 1880.

The pursuers averred that on 18th February 1899 the defenders were engaged loading a vessel in Glasgow Harbour, and that he was working in their employment in the tween-deck; that between 5 and 6 p.m. heavy cases containing iron goods were being loaded; that by order of the defenders' foreman Harris a case about 4 feet square had been placed on the tween-deck hatch to serve as a landing-stage; that two cases were lowered in each sling by the winch on to the case lying on the hatch, and that the upper case was taken away to be stowed while pursuer and another labourer steadied the lower case until the stowers returned for it.

He further averred as follows;—“(Cond. 4) About 5.15 p.m. on Said date, pursuer and the other labourer working along with him, were ‘steadying’ the lower of two cases that had immediately before been lowered on top of the ‘landing’ case. The lower case was fully 5 feet square, and was the heaviest case that had been landed in the hold that day. The case was lying in such a position, that had the pursuer and the other labourer not ‘steadied’ it, it must have fallen off the the landing case. Whilst so steadying the the case, defenders' said foreman took hold of the case and ‘canted’ it over to pursuer's side of the box, and pursuer being unable to resist the weight of the case, it fell on to another case that had been left lying on the forward part of the hatches. Pursuer's left arm and shoulder were crushed between the two cases. (Cond. 6) Said accident was due entirely to the fault of the said foreman, who has no duty of manual labour upon him. He was in fault in canting the case over on pursuer. He gave pursuer and the other labourer no warning of his intention to cant the case. His reason for doing so was to get the case off the landing case in order to allow two other cases that were hanging in the sling to be landed. The ship was to sail the same night, and the foreman was in such a hurry to get the cargo aboard that he acted recklessly in his hurry to get the work done. The foreman's ordinary or principal duty was that of superintendence. Defenders are responsible for his fault in terms of the Liability Act 1880.”

The defenders pleaded—“(1) The action is irrelevant.”

By interlocutor dated 8th May 1899 the Sheriff-Substitute ( Spens) allowed a proof.

Note.—“Defenders' agent argued that the action was based upon the second subsection of the Employers Liability Act, and that the condescendence disclosed that the alleged fault of the foreman Harris was a manual act of his. It is said that he was in fault in canting a certain case over on pursuer. It is therefore pleaded that the accident is averred to have happened while the foreman Harris was acting as a fellow labourer. Now, in the first place, in view of the cases Osborne v. Jackson, 11 Q.B.D. 619; and Sweeney v. M'Gillivary, 24 S.L.R. 91, even on the assumption that the foreman was at the moment acting as a fellow-labourer, I should not be prepared to dispose of this case without proof. But I should hesitate to hold that a casual manual act of a foreman in connection with a job which he is superintending would necessarily be outwith the exercise of superintendence. Supposing, for instance, a weight was being lifted, and a foreman was superintending, and it was being raised to the right, and the foreman put out his hand and gave it a shove in the direction of the left, saying at the same time, ‘No, put it to the left, with the result that an accident happened, I certainly should not be prepared to hold that the accident happened outwith the exercise of the foreman's superintendence. Any way, before deciding whether the foreman was acting as a fellow-labourer or as a superintendent at the time of the accident I think it is well that the facts should be expiscated.”

The pursuer appealed for jury trial.

The defenders intimated that they proposed to maintain this plea to the relevancy,

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and the case was sent to the Summar Roll for discussion.

The pursuer lodged an issue in the usual form.

Argued for the defenders and respondents—The pursuer's averments were irrelevant—(1) All that the foreman was said to have done was that he “canted” the case. It was not said that “canting” a case was an act in itself wrong or negligent, and no circumstances were stated to show that it was wrong or negligent upon this particular occasion. (2) The action here was laid upon the Employers Liability Act only, and the section founded upon was sec. 1, sub-sec. (2). Upon the pursuer's own showing, the accident here was caused not by anything which the defenders' foreman did qua superintendent, but by something which he did qua manual labourer pro tempore. The employers were not liable for anything which their foreman did when acting casually as a workman. Quoad such an act the foreman was not a superintendent but a fellow-labourer, and the employers were no more liable for his fault when acting temporarily as a fellow-labourer than for the fault of any other fellow-labourer of their workmen— Osborne v. Jackson & Todd (1883), 11 Q.B.D. 619; Shaffers v. General Steam Navigation Company (1883), 10 Q.B.D. 376; Kellard v. Rooke (1887), 19 QBD 585.

Counsel for the pursuer and appellant were not called upon.