Scottish Court of Session Decisions

In July 1902 David Traill & Sons, stevedores, Grangemouth, were employed at Grangemouth Harbour in discharging the cargo of the s.s. “Dalbeattie,” belonging to Actieselskabat Dalbeattie Limited. John Gemmell, a labourer in their employment, was injured through a load of timber falling upon him, and died shortly afterwards from his injuries. His widow and children raised an action against Traill & Sons, in which it was sought to make them responsible for his death. Traill & Sons maintained that they at anyrate were not liable, but after sundry procedure paid the widow and children the sum of £247, 18s. 10d. In respect of that payment the

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widow and children assigned to Traill & Sons “all claims competent to us or any of us, and all right of action now competent or which was at any time competent to us or any of us against Actieselskabat Dalbeattie, Limited, and—Lindvig, or either or both of them, the owners and registered owner of the s.s. “Dalbeattie” of Kragerol, for compensation in respect of the death of the said John Gemmell, … with full power to our said assignees and their foresaids to institute and follow forth whatever legal proceedings they may deem expedient for enforcing the said claim against the owners of the said steamship, they always freeing and relieving us of all expenses of and incident to the said proceedings.” …

Traill & Sons raised an action against Actieselskabat Dalbeattie Limited and Lindvig, the registered owner of the “Dalbeattie,” in which they made the following averments:—“(Cond. 2) The defenders supplied the plant, or at all events part of the plant, for discharging the cargo from said vessel, and in particular they supplied to the pursuers a sling-rope in which sets of deals which composed the cargo were collected and encircled, the rope thereafter being attached to the chain of the hydraulic crane and swung with its load to the quay side. It is the usual custom among shipowners (at all events it is the usual custom among shipowners at the port of Grangemouth) to supply sling-ropes to the stevedores for discharging cargo. The said sling-rope was one of a number of sling-ropes supplied by the defenders to the pursuers, in accordance with the said custom and in accordance with the defenders' own practice, knowingly for the purpose of being used by the pursuers for discharging said cargo. Said sling-rope so supplied by the defenders was defective and insufficient for its purpose, and in consequence thereof the rope broke and so caused the accident after-mentioned. Said rope was old, and on examination after the accident it was discovered to be mildewed and rotten in the centre, and therefore to be in such a condition that it should not have been used for the purpose of discharging cargo. A proper inspection or test of the rope by the defenders before they supplied the same to the pursuers' workmen would have revealed the defective condition of the rope as well as the fact that the rope was insufficient for its purpose. It is believed and averred that it was not tested or examined from the time it was made. It was the duty of the defenders to test and examine said rope periodically in order to see that it was fit for the purpose to which they applied it. The pursuers in doing work for the defenders relied and were entitled to rely on the fitness and sufficiency of the plant supplied to them by the defenders, and particularly on the fitness and sufficiency of the said sling-rope, the defective condition of which as before described, was not known to them and could not have been discovered by them by an ordinary examination. By and in consequence of the defective condition of the said rope it broke, with the result that it precipitated a load upon John Gemmell, a stevedore in the employment of the pursuers, causing such injuries that he died on the 16th day of July 1902.”

They pleaded—“(1) The death of the said John Gemmell being due to the fault of the defenders, or of those for whom they are responsible, the defenders are liable in reparation to the representatives of the said John Gemmell. (2) The pursuers, as the assignees of the said representatives, are entitled to decree in terms of the conclusions of the summons, with expenses.”

The defenders pleaded—“(1) No title to sue. (2) The pursuers' statements are irrelevant.”

Upon the 14th January 1904 the Lord Ordinary ( Low) pronounced an interlocutor whereby he repelled the first plea-in-law for the defenders and allowed the pursuers to lodge in process a draft issue.

Opinion.—“The pursuers are stevedores, and in July 1902 they were employed by the defenders to discharge from the ship ‘Dalbeattie’ a cargo of deals. The defenders supplied the sling-ropes which were used in hoisting the deals out of the hold. One of these ropes broke, and the deals which it was supporting fell upon one of the pursuers' workmen of the name of Gemmell and killed him. The widow and children of the latter then brought an action of damages against the pursuers, who, although they denied liability, paid the widow and children a sum of money, and took an assignation from them of all claims and right of action competent to them against the defenders in respect of Gemmell's death.

The present action is brought by the pursuers as assignees of Gemmell's widow and children, and the only question which was argued before me was whether any right which the widow and children had to claim damages from the defenders in respect of Gemmell's death was capable of being assigned.

The defenders argued that, although it had never been actually decided that such a right could not be assigned, there was no instance of an action of the kind being brought by an assignee, and the nonassignable nature of the right was shown by the fact that it did not pass to executors nor to a trustee in bankruptcy.

It must, no doubt, be now regarded as settled by the case of Bern's Executor v. Montrose Asylum, 20 R. 859, 30 S.L.R. 748, that an executor has no title to institute an action of damages for personal injury to the deceased person whom he represents. It is, however, also settled that if an action has actually been raised by the injured person prior to his death his executor is entitled to carry it on— Neilson v. Rodger, 16 D. 325. It seems to me that the chief ground in principle for the distinction between these two cases is that it is entirely in the option of the person injured whether he will claim damages or not. If he dies without making the claim the executor has no right to exercise the option which was

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personal to the deceased, but if the option has been exercised by bringing an action the executor may carry it on.

It does not, in my opinion, follow that a claim of damages for personal injury cannot be assigned. There may be, although I do not say there are, reasons why a gratuitous assignation of such a claim would not be effectual; but that is not the case with which I am dealing. Mrs Gemmell and her children have assigned their claim to the pursuers because the latter have indemnified them for the loss which they have sustained. In such circumstances I cannot see any reason why the assignation should not be effectual. It certainly cannot be said that Mrs Gemmell and her children have not exercised their option to enforce the claim, because they have in fact done so, and it is not said that the defenders—assuming that they were truly the wrongdoers—are in any way prejudiced by the claim being made by assignees of the persons injured and not by these persons themselves.

The defenders, as I have said, argued that such a claim as that in question could not be assignable because it did not pass to a trustee in bankruptcy. But I do not think that it can be said that the rule is that a claim of damages for personal injury does not pass to a trustee in bankruptcy. I think that the general rule is the other way, and that the most that can be said is that the modern tendency of the law is to make an exception where the injury is one solely affecting the personal character or the feelings of the bankrupt.

Thus in the case of Thom v. Bridges, 19 D., 721, it was held that a trustee in bankruptcy was entitled to be sisted in place of the bankrupt as pursuer in an action in which the latter claimed solatium for imprisonment. Again, in Neilson v. Rodger ( supra), Lord Wood said that it could not be denied that ‘where a claim for damages and solatium arises on account of bodily injury or from any other cause … that is a moveable claim, and is assignable either by positive conveyance or implied legal assignation.’ In the same case Lord Cockburn said that a claim for bodily injury could, ‘without doubt,’ be assigned. Again in Gardiner v. Main, 22 R. 100, 32 S.L.R., 91, where it was held that a person who had voluntarily paid damages to a workman who had been injured could not claim relief from the true wrongdoers, Lord M'Laren said that a competent course for the pursuer to have adopted would have been to take from the workman an assignation of his claims against the wrongdoer.

The defenders also referred to the case of Simpson & Company v. Thomson, 5 R. (H.L.), 40, 15 S.L.R. 293. That was a case in which underwriters, who had paid insurance to the owner of a ship which had been sunk in a colision, sought to exercise that owner's right to claim damages against the owners of the other ship through whose fault the collision had occurred. In giving judgment Lord Chancellor Cairns laid it down as a well-known principle of law that ‘where one person has agreed to indemnify another, he will, on making good the indemnity, be entitled to succeed to all the ways and means by which the person indemnified might have protected himself against or re-imbursed himself for the loss.’

The Lord Chancellor, however, went on to say that where by virtue of that rule underwriters enforced a claim of damages which the owner of the ship might have asserted against a wrongdoer, they must sue in his name, and not in their own.

The defenders relied upon that decision as an authority for saying that it was incompetent for the pursuers to sue in their own name, although they might have done so in the names of Mrs Gemmell and her children. I am of opinion that that argument is not well founded. It may very well be that the pursuers, having indemnified Mrs Gemmell and her children, would have been entitled to bring this action in the names of the latter without any assignation. But the pursuers have obtained an assignation, and the claim being one which, in my judgment, was capable of being assigned, they have a good title to sue in their own name.

I shall therefore repel the first plea in law for the defenders.”

Upon the 18th February 1904 the Lord Ordinary ( Low) pronounced another interlocutor, whereby he approved of an issue in these terms:—“Whether on or about 16th July 1902 in Grangemouth Dock, John Gemmell, labourer, … sustained personal injuries from the effect of which he died on the same day, through the fault of the defenders, to the loss, injury, and damage

Opinion—“When this case was previously before me the only question which was argued was whether the claim of the widow and children of the workman Gemmell (who was killed on board the defenders' ship), against those through whose fault his death was caused, could be assigned.

I answered that question in the affirmative, and the defenders now maintain that the pursuers' averments are not relevant. Whether that contention is well-founded or not depends upon whether the averments disclose any duty on the part of the defenders to the pursuers' servants.

Shortly stated, the facts averred by the pursuers are these—They are stevedores, and they were employed by the defenders to discharge a cargo of deals from a ship belonging to the latter. The defenders supplied part of the plant for discharging the cargo, including ropes for hoisting the deals out of the hold. That is said to be in accordance with custom. One of the ropes broke, and the parcel of deals which it was supporting fell upon Gemmell, who was a workman in the employment of the pursuers. The rope was an old rope, and was rotten in the centre. A proper inspection or test of the rope would have shown its defective condition, but that it was defective could not be discovered ‘by an ordinary examination,’ by which I understand that a mere examination of the outside of the rope would not have revealed any defect.

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I am not prepared to say that these averments are not relevant.

The rope was supplied by the defenders for work to be done for them on board their own ship, and the work was of a kind which necessarily involved the employment of workmen. The workman who was killed, therefore, had not gone on board as a volunteer, but he was, so to speak, on board by the invitation of the defenders. In such circumstances I think that the defenders were under obligation, and had a duty to the workmen employed, to use reasonable care and skill to secure that the appliances which they furnished for the work were fit for the purpose.

The defenders relied upon the judgment of the House of Lords in the Caledonian Railway Company v. Mulholland, App. Cas. 1898, p. 216. It seems to me that that case differed in essential particulars from the present. The circumstances here are very much the same as those which occurred in Heaven v. Pender, 11 Q.B. Div. 503. The judgment in the latter case must be regarded as authoritative, not only by reason of the eminence of the Judges by whom it was pronounced, but because it was referred to with apparent approval in the House of Lords in the Caledonian Railway Company v. Mulholland.

The defenders, however, further maintain that the pursuers could not sue as assignees of Mrs Gemmell and her children because their averments showed that they were not in the position of third parties who had paid to Mrs Gemmell and her children a sum of money in return for an assignation of a claim which the latter had against the defenders, but that they had paid the money in settlement of a claim in which they were truly the debtors. That fact the defenders contended might not bar the pursuers from bringing an action of relief against the defenders (although such an action could have been resisted upon other grounds), but it did bar them from suing as assignees.

That contention is founded upon the fact that Gemmell was the pursuers' servant and was working in their employment when he met his death, and the argument is that the pursuers are responsible to Gemmell and those representing him for having put him to work with an insufficient rope. The answer to that view seems to me to be that an employer does not warrant the sufficiency of the appliances which he furnishes to his workmen, but is only bound to use all reasonable care and skill to secure that they are sufficient; and, assuming the pursuers' averments to be true, I cannot affirm that they failed in that obligation. It would have been different if the rope had been patently insufficient, if, for example, it had been frayed or obviously too slender to carry the weight of the deals. But the pursuers' averment, as I read it, is that the rope was to outward appearance sufficient in every respect. That, no doubt, would not have saved the pursuers from liability if they had themselves supplied the rope, because in that case their duty would have been to see that the rope was in fact sufficient. But the rope having been supplied by the defenders, I do not think that the pursuers were under obligation to test it as they would have been bound to do if it had been their own. I think that the rope having been apparently sound and strong, the pursuers were justified in assuming that the defenders had fulfilled the obligation which they were under to them of using all reasonable care to secure that the rope was in fact in that condition.

I am therefore of opinion that the pursuers have stated a relevant case for enquiry, and accordingly I shall allow an issue.”

The defenders reclaimed, and argued—(1) The pursuers had no title, for it was not competent for a person who had received personal injuries to assign his right to sue for damages. There was no precedent for such a claim being assigned, and it had been decided that it was not carried to an executor or a trustee in bankruptcy— Bern's Executor v. Montrose Asylum, June 22, 1893, 20 R. 859, 30 S.L.R. 748; Pulling v. Great Eastern Railway Company, 1882, L.R. 9 Q.B.D. 110; Hill v. Boyle, L.R. 4 Eq. 260; ex parte Vine, 1878, L.R. 8 Ch. D. 364. It would be curious if what was not carried by these universal assignations could still be assigned, and it would be inconvenient, for then such claims as the present might be arrested, and questions of this kind would have to be tried in a furthcoming or multiplepoinding. It was a well established rule in the case of damage to ships that the underwriters could not sue, the action must be in the name of the owners— Simpson & Company v. Thomson, December 13, 1877, 5 R. (H.L.) 40, 15 S.L.R. 293. But even if such a claim were assignable, then the assignees were in the same position as the assigners who had received compensation, and all that could be claimed would be the balance of compensation still due— Douglas v. Hogarth, November 19, 1901, 39 S.L.R. 118, or if the assignees were in any way different from the assigners the action became one of relief, which could not be raised by a party who had settled— Ovington v. M'Vicar, May 12, 1864, 2 Macph. 1066. (2) There was no relevant case, for the defenders were under no obligation to the pursuer's workpeople M'Gill v. Bowman & Company, December 9, 1890, 18 R. 206, 28 S.L.R. 144; Campbell v. Morrison, December 10, 1891, 19 R. 282, 29 S.L.R. 251; Caledonian Railway Company v. Mulholland, November 26, 1897, L.R. 1898, Ap. Cases, 216, 25 R. (H.L.) 1, 35 S.L.R. 54; Membery v. Great Western Railway Company, 1889, L.R. 14 Ap. Cases, 179. A different case would have been disclosed if it had been averred that the defenders knew of the defect— Heaven v. Pender, 1883, L.R. 11 Q.B.D. 503; Macdonald v. Wyllie & Son, December 22, 1898, 1 F. 339, 36 S.L.R. 262.

Argued for the pursuers and respondents—(1) The pursuers had a good title. In Scotland a claim for damages could be assigned and the assignee could sue in his

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own name. That proposition had been established in all cases of damages for breach of contract or injury to property— Constant v. Kincaid & Company, June 19, 1902, 4 F. 901, 39 S.L.R. 636; Symington v. Campbell, January 30, 1894, 21 R. 434, 31 S.L.R. 372; Levett v. London and North-Western Railway Company, July 17, 1866, 2 S.L.R. 207; Caledonian Railway Company v. Watt, July 9, 1875, 2 R. 917, 12 S.L.R. 592. The practice in shipping cases was an exception borrowed from England— Simpson & Company v. Thomson, cit. sup.; King v. Victoria Insurance Company, Limited, L.R. 1896, Ap. Cases 250, Injury to person was not to be distinguished but fell within the general rule— Mein v. M'Call, June 7, 1844, 6 D. 1112; Milne v. Gauld's Trustees, June 14, 1841, 3 D. 345; Neilson v. Rodger, December 24, 1853, 16 D. 325; Thom v. Bridges, March 11, 1857, 19 D. 721. The right to sue for damages was really an asset like a spes successionis, which could be sold and assigned— Gardiner v. Main, November 29, 1894, 22 R. 100, 32 S.L.R. 91; Darling v. Gray & Sons, May 31, 1892, L.R. 1892, Ap. Cases 576, 19 R. (H.L.) 31, 29 S.L.R. 910. Executry cases were not in point, but if it were necessary to take account of them, claims of damages for personal injury did pass to the executor if action had been begun— Neilson v. Rodger, cit. sup., and if a bankrupt had already commenced or did commence such an action his trustee could continue it and reap the benefit— Thom v. Bridges and Mein v. M'Call, cit. sup.; Jackson v. M'Kechnie, November 13, 1875, 3 R. 130, 13 S.L.R. 65. If the question depended upon election, as it seemed in bankruptcy and executry, then here the election had been made by the assignation. It was further to be remarked that the widow's position in this case was stronger than in those cited, for she had a patrimonial interest because of the loss of her supporter as well as a claim for solatium, and where the two interests concurred the title to sue would be upheld— Auld v. Shairp, December 16, 1874, 2 R. 191, 12 S.L.R. 177; Eistens v. North British Railway Company, July 13, 1870, 8 Macph. 980, 7 S.L.R. 638. This was sufficient to distinguish Bern's case, cit. sup. (2) The case was relevant— Heaven v. Pender, Macdonald v. Wyllie & Son, Caledonian Railway Company v. Mulholland, cit. sup.

At advising—