Scottish Court of Session Decisions

John Wilson, labourer, Glasgow, raised in the Sheriff Court at Glasgow an action for £163, 16s. damages, under the Employers Liability Act 1880, against the Caledonian Railway Company.

The pursuer averred—“(Cond. 2) On 22nd February 1899 the pursuer was in the employment of the defenders as a labourer at their goods station, Buchanan Street Glasgow. (Cond. 3) His duty was to discharge waggons. This is done, in the case of hampers and such like goods, by the aid of light cranes erected on the different platforms or tables by defenders for the purpose. (Cond. 4) On said date pursuer was about to unload a waggon containing large bundles of soft goods, and as these were just the sort of goods that required the aid of the crane, he asked the foreman, Donald MacDonald, to turn the jib of the crane towards the waggon. Pursuer was in the waggon at the time. The foreman, instead of complying with pursuer's request, peremptorily ordered him to go-ahead without the crane, and pursuer, who was bound to conform to MacDonald's order, did so, and succeeded in transferring the first package from the waggon to the platform, but in attempting to put the second package on to the platform the package proved too heavy and unwieldy owing not only to its actual size and weight, but also to the fact that the centre of gravity was always shifting on account of the nature of the package's contents. The pursuer had turned the package up on its end in the customary way in order to move it off the waggon, when, owing to its nature, it yielded, and being too heavy and unwieldy for one man to manipulate, pursuer, in

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attempting to remove it from the waggon, to the table or platform of the station, strained and injured his back. Pursuer has been unable to work since the accident, and his injuries will prevent him from working for a long time to come. Indeed, it is problematical whether or not he will ever be able to work, his spine having sustained injury. (Cond. 5) The accident was due entirely to the fault of the said gaffer (to whose orders pursuer was bound to conform, and was at the time conforming), in respect that he wrongfully denied the pursuer the use of the crane that was there for the purpose, and was lying idle at the time. Again, the foreman was in fault in not employing another man to assist pursuer in view of the refusal of the crane, as he well knew the nature of the goods, the difficulties they presented in removal, and the danger arising to a single labourer in attempting to remove them. Defenders are responsible in terms of said Act for the fault of their said foreman, whose ordinary or principal duty was superintendence, and not manual labour.”

The pursuer pleaded— “The pursuer having been injured through the fault of said foreman, for whom defenders are responsible, in terms of said Act, is entitled to decree, with interest and costs as craved.”

The defenders pleaded—“(1) The averments of the pursuer are irrelevant and insufficient to support the conclusions of the action.”

On 13th July 1899 the Sheriff-Substitute ( Guthrie) pronounced the following interlocutor:— “Finds that pursuer has not stated facts and circumstances relevant and sufficient to support the petition: Therefore dismisses the action, and decerns; and before disposing of the question of expenses, orders the cause to the procedure roll of next Court-day (18th inst.) with reference to the Workmen's Compensation Act, sec. 1, sub-sec. 4.”

Note—“The pursuer avers that he has suffered from an accident occurring in the course of his employment at Buchanan Street Railway Station. He brings this action under the Employers Liability Act. He has, in my opinion, failed to make out a relevant case, in respect that on his own showing he took the risk of lifting a heavy load by which his back was strained. He asked that the crane should be used, but the gaffer told him to go on without it, and without more ado he did so. As in Crichton v. Keir, 1 Macph. 407; M'Gee v. Eglinton Iron Co., 10 R. 955; Fraser v. Hood, 15 R. 178, &c., this I think makes his claim untenable. He was not obliged to lift the package without help, or without the crane, and he was presumably as well acquainted with its weight and his own powers as the gaffer MacDonald.

Probably the pursuer is entitled to compensation under the Act of 1897, which by sec. 1 (4) may be assessed in this action. I delay making any finding as to expenses that the pursuer may move accordingly, if so advised.”

On 26th July 1899 the Sheriff-Substitute found the defenders entitled to expenses, the pursuer not having moved under sec. 1, sub-sec. 4, of the Workmen's Compensation Act 1897.

The pursuer appealed, and argued—The order of the foreman to the pursuer to remove the bundles from the waggon without the use of the crane was an order to remove by an unusual method. The giving of this order was therefore an act of negligence on behalf of the pursuer for which the defenders were liable under sec. 1, subsec. (3), of the Employers Liability Act 1880. The mere fact that the pursuer undertook the work in knowledge of the risk incurred did not preclude him from recovering if he did not voluntarily undertake the risk— Smith v. Baker, L.R. [1891], A.C. 325. Proof ought therefore to be allowed.

Counsel for defenders were not called on.