Scottish Court of Session Decisions

Catherine Jack, 180 Gallowgate, Glasgow, with the consent and concurrence of her father Isaac Jack, as her curator and administrator-in-law, brought this action in the Sheriff Court of Lanarkshire at Glasgow against the Rivet, Bolt, and Nut Company, Limited, having their registered office at 121 St Vincent Street, Glasgow, for payment of £1000 in name of damages. or otherwise for payment of £78 as compensation in terms of the Employers Liability Act 1880.

The pursuer, who was sixteen years of age, averred that—“(Cond. 3) On or about 6th August 1903 she was in the employment of the defenders at their Scotia Works, Glasgow, and was engaged working at a finishing-machine for finishing bolts and nuts. On said date the defenders employed Mr Robertson as superintendent, manager, or foreman, within the meaning of the Employers Liability Act 1880, in connection with the said works. The pursuer in the course of her duty had to go from her own machine to an adjoining machine for the purpose of getting nuts to be finished by her at the machine of which she was in charge. (Cond. 4) On said date she had gone for a panful of nuts, and while she was waiting for the nuts, the bolt used by her for testing the nuts accidentally fell into the trough of the said adjoining machine, which was attended by a girl named Dickson. The pursuer stooped to recover the bolt, and while in the act of raising herself her hair was caught up by the spindle of the machine attended to by the girl Dickson, and the moving machinery drew in pursuer's head and tore her scalp off.” The pursuer further averred—“(Cond. 6) The injuries to the pursuer were caused by reason of the fault and negligence of the defenders and of their foreman the said Mr Robertson, for whom the defenders are responsible in terms of the of the Employers Liability Act 1880. It was the duty of the defenders” both at common law and under the Act 1 Edw. VII. c. 22, sec. 10 (the words in italics were inserted as an amendment) “to have had the running parts of the said machine guarded in such a way as would have prevented their workers from sustaining accident. The machine in question was one in which the pursuer in the course of her duty had to pass, and it was one which should have been guarded and protected so that the workers in the course of their regular employment could not be subjected to any undue risk. The spindle of this particular machine was not protected in any way, and it projected in such a way as to render it a source of danger to those who had occasion to be near it or pass it. It was the duty of the defenders, or of their said foreman in the exercise of the superintendence entrusted to him, to have said machine fenced or protected in such a manner as would have prevented accidents occurring. This is customary and usual in similar workshops where machinery is used. No precautions were taken, however,

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either by the defenders or by their foreman, and the accident to the pursuer, and the injury and loss which she has sustained, have been caused through the fault and negligence of the defenders and their said foreman as before set forth.”

The defenders admitted that the pursuer on the date in question was in their employment at their Scotia works; that they employed Mr Robertson as foreman in connection with the said works; and that on the date in question the pursuer, while standing at a machine attended by a girl named Dickson stooped in such a way that her hair was caught in the spindle of the said machine and the scalp torn off. Quoad ultra denied the pursuer's averments, and explained “that the portion of the spindle which caught the pursuer's hair could not possibly have been worked with any guard upon it, and that the machine was, as far as possible, amply guarded. Explained further that the machine could have been immediately stopped, and anything which had fallen been removed without the slightest risk of injury to anyone. Explained further that the accident was caused solely by the fault and negligence of the pursuer, or her own fault and negligence materially contributed thereto: (first), in being at the machine in question, where she had no right or duty to be; and (secondly) in attempting to pick up the article she accidentally dropped while the machine was in motion, instead of getting it stopped prior to securing the said article.”

The pursuer pleaded, inter alia—“(1) The pursuer having, while a servant of the defenders, been injured through the fault of the defenders or of their servant for whom the defenders are responsible, is entitled to reparation, with expenses. (2) The defenders having caused the pursuer to suffer loss, injury, and damage through the defective condition of their machinery and plant, are bound to compensate pursuer.

The defenders pleaded, inter alia, as follows—“(1) The pursuer's averments being irrelevant and insufficient to sustain her pleas, the action should be dismissed with expenses. (3) The defenders are entitled to absolvitor with expenses, in respect that the injuries sustained by the pursuer were caused by her own fault and negligence, or her own fault and negligence materially contributed thereto.”

The Sheriff-Substitute ( Balfour), by interlocutor dated January 12, 1904, before answer allowed the parties a proof of their averments.

The pursuer appealed, and argued—The action was relevant. Even though contributory negligence on the part of the appellant was proved, that was no answer if, as was averred, there was a breach by the respondents of the statutory duty conferred on them by the Factory and Workshop Act, 1901, 1 Edw. VII., c. 22, sec. 10. The case should be sent to a jury in the ordinary way.

Argued for the respondents—The action was irrelevant, in respect that there is not set forth any connection as of cause and effect between the non-fencing of the machine and the accident— Robb v. Bulloch, Lade, & Company, July 9, 1892, 19 R. 971, 29 S.L.R. 832. The amendment added nothing to the relevancy of the action, since appellant could always be entitled to refer to a public general statute. The question was whether, on the appellant's own averments, what occurred was a thing which a reasonable administrator would provide against. This, in any view, was a narrow question, involving careful discrimination between relevant and irrelevant evidence, and therefore was more fitted for trial by the Sheriff than before a jury. The Factory and Workshop Act 1901 (1 Edw. VII., c. 22), sec. 10, to which reference was made in the appellant's amendment, enacts as follows—“With respect to the fencing of machinery in a factory the following provisions shall have effect:—( c) All dangerous part of the machinery, and every part of the mill gearing, must either be securely fenced, or be in such position or of such construction as to be equally safe to every person employed or working in the factory as it would be if it were securely fenced.”