Scottish Court of Session Decisions

Mrs Ellen M'Gee or Gillies, a widow, raised an action against Scott & Company, shipbuilders, Greenock, for £500 as damages at common law, or alternatively for £312 under the Employers Liability Act, for the death of her son Robert Gillies, an apprentice caulker in the employment of the defenders.

The pursuer averred—“(Cond. 3) On 9th September 1902 the said Robert Gillies was engaged in the course of his employment in what is known as a coffer-dam, caulking the bottom of an oil-tank steamship, then under construction by the defenders in their East Yard, Greenock. To enable him to see to the proper execution of his work Gillies had in use a lighted naphtha lamp, supplied to him by the defenders for the purpose. Shortly after 11 a.m. on said day an unlighted naphtha lamp, which had been in use by another workman in the employment of the defenders, fell down from a higher part of said vessel above where Gillies was working. In its descent it struck an intervening lamp hanging immediately above him, and remained suspended there. The lamp which fell, instead of being furnished as it should have been with a screw-cap or other effective contrivance for preventing its contents from escaping, was merely furnished with a wooden stop or plug. The result was that when the lamp in its descent came in contact with the intervening lamp, the wooden stopper or plug was knocked out by the impact. The naphtha poured over Gillies, caught fire from the flare of the lamp he was using, and enveloped him in flames. Gillies succeeded in making his way out of the cofferdam by a man-hole, but before the flames could be extinguished by those present he was severely burned. He was immediately conveyed to the Greenock Infirmary, but died on 11th September, two days after being admitted, and after suffering great pain. (Cond. 4) The foresaid accident to the said Robert Gillies was caused through the fault or negligence of the defenders, and they are liable to the pursuer in compensation at common law. The accident was due to the defective condition of the naphtha lamps supplied by the defenders to the workmen employed by them, and in particular to the defective condition of the naphtha lamp which fell, and the contents of which descended on the said Robert Gillies, with the result above condescended on. The naphtha lamps supplied by the defenders to their employees when new are furnished with a screw-cap, which is a safe and effective means of preventing the naptha from escaping, and such lamps are according to usual custom furnished with such screw-caps. ^* When the screw-caps become worn or inefficient, the defenders, in place of having the same properly repaired and put in a safe condition, are in use to substitute wooden stoppers or plugs. Naphtha lamps supplied with these wooden stoppers or plugs are, considering the uses to which the lamps are put, and the conditions under which they are used, insecure and extremely dangerous, as the wooden stoppers or plugs are hot only liable to fall out, but if the lamp be subjected to any knock or impact are almost certain to be knocked out. Had the lamp in question which fell been supplied with a screw-cap or other effective contrivance for preventing the naphtha from escaping the accident to the said Robert Gillies could not have happened. At the date of said accident the majority, or at least a large number of the naphtha lamps supplied by the defenders to their employees were, as the defenders knew or ought to have known, supplied with wooden stoppers or plugs. The defenders have recognised the danger attaching to these wooden stoppers or plugs, and since the accident all the naphtha lamps in use in their yard are fitted with screw-caps. (Cond. 5) Alternatively, the defenders are liable to compensate the pursuer under the Employers Liability Act 1880, in respect that the defective condition of the naphtha lamp to which the foresaid accident was attributable arose from the negligence of the defenders or of Laurence Harvey, who was manager of the yard in which the accident occurred, and Robert Watt, who was employed by the defenders as storekeeper in said yard, who were entrusted by the defenders with the duty of seeing that the naphtha lamps used in said yard were in proper and safe condition for use by the defenders' workmen.”

The pursuer pleaded—“(1) The death of the said Robert Gillies having been caused through the fault or negligence of the defenders or of those for whom they are responsible, the pursuer is entitled to compensation at common law and to decree in terms of the first conclusion of the petition. (2) Alternatively, the death of the said Robert Gillies having been caused by the fault or negligence of the defenders, or of those for whom they are responsible, the pursuer is entitled to compensation under the Employers Liability Act 1880, and to decree in terms of the alternative conclusion of the petition.”

The defenders pleaded—“(1) Irrelevant. (2) The defenders should be assoilzied with costs, in respect (a) that the accident was not caused by any fault or negligence for which they are responsible; ( b) that the accident was not caused by any defect in the condition of their plant.”

On 4th March 1903 the Sheriff-Substitute ( Glegg) repelled the first plea-in-law for the defenders and allowed to the parties a proof of their respective averments, and to the pursuer a conjunct probation,

The defenders appealed to the Sheriff

_________________ Footnote _________________

* The words in italics were added by way of amendment during the discussion before the Division.

Page: 779↓

( Cheyne). The Sheriff on 21st March 1903 recalled the interlocutor of the Sheriff-Substitute and allowed a proof before answer.

The pursuer appealed to the Court of Session for jury trial.

Argued for the defenders and respondents—The action was irrelevant. There was no averment that the lamp which was knocked down might not have been safely used by the employees. What had occurred here was really an accident. It was not the duty of an employer to provide for improbable contingencies. His only duty was to provide appliances which would be safe when used in the ordinary way and with ordinary care. There was no evidence of any defect implying negligence on the part of the employer— Walsh v. Whiteley, 1888, 21 QBD 371, opinion of Lopes, L.J., 378. In any event, there was no relevant case at common law. There was no personal duty on the part of the employer to go round and see that the lamps, which were quite safe when new, were kept in a proper and safe condition for use. It was enough if, as here, he appointed a storekeeper, whose duty it was to look after these lamps and keep them in proper condition. If the case was held to be relevant it should be sent back to the Sheriff Court for proof. It involved fine points, and it was also a case in which the feelings of the jury might be worked upon on account of the fearful death of the employee.

Counsel for the pursuer was asked if he would consent to the case going back to the Sheriff Court for proof, but he refused, on the ground that it was a typical case for a jury. He was not called on to reply on relevancy.