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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Fall v. Adams & Co. [1907] ScotLR 44_259 (09 January 1907)
URL: http://www.bailii.org/scot/cases/ScotCS/1907/44SLR0259.html
Cite as: [1907] ScotLR 44_259, [1907] SLR 44_259
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SCOTTISH_SLR_Court_of_Session
Page: 259↓
Court of Session Inner House Second Division.
[Sheriff Court of Lanarkshire at Glasgow.
v.
Facts:
A & Company, a firm of engineers, contracted to remove and repair an engine shaft belonging to B & Company, The contract did not specify the mode of operation or contain any provision that A & Company might use B & Company's plant. B & Company instructed one of their men, C, whose work was
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suspended by the operations, to assist A & Company, and while doing so he attached the engine shaft to a chain winch which he was in the habit of using. The chain of the winch broke and one of A & Company's employees was injured, who thereafter raised an action of damages against B & Company, averring, inter alia, that the chain was obviously unsound and unfit for the work; that throughout C remained the servant of, and subject to control and dismissal by, B & Company; and that it was a custom of trade that in such operations the occupiers of premises gave the use of their plant, and that any of their employees deputed to assist had their authority to use it. Held that the case disclosed no relevant ground of action against B & Company.
Donovan v. Laing, Wharton, & Down Construction Syndicate, [1893] 1 QB 629, followed,
Cairns v. Clyde Trustees, June 17, 1898, 25 R. 1021, 35 S.L.R. 808, distinguished.
John M'Fall, labourer, West Street, Tradeston, Glasgow, raised an action in the Sheriff Court of Lanarkshire at Glasgow against James Adam & Company, timber merchants, Glasgow, concluding for £1000 damages for personal injuries.
The pursuer's averments were as follows — “(Cond. 1) The pursuer, who is thirty-seven years of age, is a labourer in the employment of the Harvey Engineering Company, Limited, Scotland Street, Tradeston, Glasgow, and resides at 174 West Street, Tradeston, Glasgow. The defenders are timber merchants, and carry on business as such at Tradeston Saw Mills, 7 Scotland Street, Tradeston, Glasgow. (Cond. 2) At the date of the accident after mentioned and for a few days immediately previous thereto the said Harvey Engineering Company, Limited, were in course of removing from the defenders' said saw mills to their premises for repair a malleable iron shaft which formed part of defenders' shop shaft for driving the larger framed saws. Said iron shaft before being so removed required to be lifted out of its bed. John Shea, fitter, and John Skilling, apprentice fitter, both also in the employment of the said Harvey Engineering Company, Limited, were instructed by their employers to proceed to defenders' said saw mills and execute the lifting of said shaft and its subsequent removal to their employers' premises. On the night immediately preceding the accident the said John Shea reported to his foreman that he would require some further assistance connected with the operation, and it was arranged that the pursuer should be sent to the job that night. The pursuer started on the job that night at ten o'clock. (Cond. 3) The removal of the shaft by the Harvey Engineering Company temporarily threw off work certain of the defenders' saws, and one of their skilled workmen, named Samuel Hill, who was ordinarily employed thereat, was instructed by the defenders to assist the workmen of the Harvey Engineering Company in the removal. He accordingly helped in the operation. In doing so he remained in the service of the defenders. He was selected and paid by them, and continued to be subject to their control and power of dismissal. (Cond. 4) On or about the 8th day of May 1906, and about six o'clock in the morning thereof, the pursuer was engaged in the said operation along with the said Samuel Hill, John Shea, and John Skilling. They had lifted the shaft out of its bed near a steam winch and chain belonging to the defenders, and the said Samuel Hill proceeded to use the said steam winch for the purpose of raising the shaft up and depositing it on a barrow for removal. For this purpose he attached the chain of the winch to the shaft and set the winch in motion. One end of the shaft had thus been raised several feet above the level of the ground, and the pursuer was in course of putting the barrow in below this end, and had got one wheel under the shaft, when a link of the chain attached to the winch broke, with the result that the shaft, which weighed about 15 cwts., fell on the top of said wheel, rolled against pursuer and then on to his feet.… Explained that Hill did not use the winch by the order of Shea, but on his own initiative and suggestion. (Cond. 5) As a result of the said accident the pursuer sustained severe injuries…. The pursuer has been crippled for life and will never be able to resume his ordinary employment. Since the accident he has suffered great pain. The sum sued for is reasonable compensation for the injuries and damages sustained and to be sustained by him. (Cond. 6) The accident was caused by the defective condition of the link of the chain which broke. The link was in a worn and unsound condition and was quite unfit for the purpose for which it was used or for lifting weights of any kind. Any reasonable inspection or examination of the chain by a person of skill would have disclosed its condition.… (Cond. 7) The accident was accordingly due to the fault of the defenders. The plant in question was supplied by them or by their employee, for whom they are responsible, and it was their duty to inspect it and to see that it was sufficient for the purpose. This duty they failed to discharge, and they are therefore liable in damages to the pursuer. It was within the scope of Hill's ordinary duties to use the said winch, and in any case it was within his right to do so on the occasion in question. It is a general and well recognised custom of trade that when machinery is being removed from premises for repair in this way the occupiers of the premises give the use of their plant for the purpose, and that any employee deputed by them to assist in the operation has authority to use their plant. Moreover, the plant in question was habitually used for lifting much heavier articles than the shaft, and apart from the defect in the chain it was a natural and proper thing for Hill to use it. But even if Hill had no authority to
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use the winch on the present occasion it was fault on his part to do so, and for that fault the defenders are equally responsible.” On 30th October 1906 the Sheriff-Substitute ( Davidson) allowed a proof before answer.
The pursuer appealed to the Court of Session for jury trial, and the defenders took advantage of the appeal to argue that the case was irrelevant.
Argued for the defenders and respondents—(1) The action was relevant. Though Hill remained the general servant of the defenders, yet, as they had parted with the power of controlling him with regard to the matter on which he was engaged, they could not be liable— Donovan v. Laing, Wharton, and Down Construction Syndicate, [1893] 1 QB 629. There was no averment that Hill had the defenders' authority to use the winch; nor that he used it in the course of his employment; nor that he used it for the defenders' benefit; nor that the defenders contracted to supply the Harvey Company with a winch. The averment as to custom of trade added nothing; custom of trade meant custom of and in one particular trade and not between two different trades. Pro hac vice Hill was under the control and in the employment of the Harvey Company— Rourke v. White Moss Colliery Company, L.R. 1877, 2 C.P.D. 205; Connelly v. Clyde Navigation Trustees, October 16, 1902, 5 F. 8, Lord Kinnear, at p. 13, 40 S.L.R. 14. (2) In any event it was not a case for jury trial.
Argued for the pursuer and appellant—The action was relevant, for Hill remained in the defenders' employment; he was selected and paid by them, and liable to be dismissed by them— Cairns v. Clyde Trustees, June 17, 1898, 25 R. 1021, 35 S.L.R. 808; Jones v. Corporation of Liverpool, 1885, 14 Q.B.D. 890; Anderson v. Glasgow Tramway and Omnibus Company, December 19, 1893, 21 R. 318, 31 S.L.R. 240—and had not expressly or impliedly accepted the Harvey Company as his masters— Johnson v. Lindsay & Company, [1891] AC 371, Lord Watson at 382. I was for the jury to judge whether Hill had implied authority to use what he ordinarily used. That the defenders and not the Harvey Company were the persons who had the power of dismissing Hill differentiated the present case from Rourke & Donovan ( cit. supra). The case should be tried by jury.
The facts are extremely simple. James Adams & Company, the defenders, required to have the shaft of one of their machines repaired, and for that purpose they entered into a contract with the Harvey Engineering Company to take it away and repair it. The Harvey Company had no contract with Adams & Company as to how this was to be done, and there was no contract whereby the Harvey Company were entitled to use any of the plant of Adams & Company in doing that work. Now, in the course of the work, Adams & Company allowed one of their men named Hill—“instructed” one of their men it is said—to assist the Harvey Engineering Company's men as might be required. Hill was a sawyer, and had the use in his sawing work of a winch and chain for the purpose of bringing wood to his bench and taking it off. In the course of the proceedings the pursuer says this man Hill used that winch for the purpose of raising the shaft and getting it on a barrow, and in doing so the chain broke and injured the pursuer's feet; and he sues Adams & Company for damages in respect of that injury.
I see no grounds for holding that the defenders are in any way responsible for what happened. They did not supply the crane for doing that work, and in no way guaranteed the crane for such a purpose. The Harvey Company was not entitled to use that crane for that work. Hill used it, and the Harvey Company's men seem to have allowed him to use it; but that is not a matter for which Adams & Company are responsible, for Hill was not then doing Adams & Company's work. He was in their employment no doubt, he was a servant of theirs, but he had been lent to the Harvey Company at a time when his usual work was not in operation owing to the shaft having been taken out and the machine not being in use. He was lent to assist the Harvey Company in doing their work, and it could not be proper for him in doing work for them to use Adams & Company's plant.
On these grounds, and having in view the decision in Donovan v. Laing, &c., Construction Syndicate, [1893] 1 QB 629, which I am quite unable to differentiate from this case, and which was decided by a strong Bench, I am of opinion that this case is irrelevant. I think it is distinguishable from the case of Cairns v. Clyde Navigation Trustees, 25 R. 1021. I remember that in that case, which had been before a jury, Lord Trayner in giving the leading opinion was careful to distinguish between Donovan and Cairns. The Clyde Trustees in that case kept the control of their employee and the crane in their own hands. The crane was worked for them and by them, and the only control the stevedores had over it was to require it to do their work, but in bringing the crane to the proper place to carry on the loading or unloading the Clyde Trustees kept it absolutely under their control. The Clyde Trustees could fix the man to work that crane; they alone could use it Of course if the stevedores made a complaint about a man he might be changed, but he could be changed by the Trustees only if they thought proper. Therefore I do not think that case has any application at all. I am satisfied that the pursuer has not stated a relevant case. He has attempted to make the case stronger by saying—“It is a general and recognised custom of trade that when machinery is being removed from premises for repair in this way the occupiers
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I think the case must be governed by substantially the same principles as were given effect to in Donovan v. Laing Construction Syndicate, [1893] 1 QB 629, which is a decision of high authority by a Bench consisting of Lord Esher, M.R., Lord Lindley, then Lindley, L.J., and Lord Bowen, then Bowen, L.J. It was a pure case of the loan of a crane and a workman to work it by one employer to another employer who was engaged in a work on the premises of the first. So is this, except that there is no averment here, as there was in Donovan's case, that the lender's plant was included in the loan, or that there was any arrangement for the workman using that plant in the work of the person to whom his services were lent.
I think therefore that the case lacks the essential elements for raising liability on the part of the defenders.
Now, if for Jones & Co. we substitute the Harvey Engineering Co., it seems to me that these remarks are directly applicable to the present case.
As to the use of the winch, it is no doubt common enough for a party upon whose premises work is being done by another to supply any plant which is required if he has plant suitable for the purpose. In some cases where the work cannot be done without plant, it may be the custom of trade that the employer shall supply what plant is necessary. For example, I rather think that where stevedores are employed to load a ship it is generally understood that the ship shall supply the necessary ropes and windlass. But the present case is clearly not of that description. It is not said that any plant was required, and as I read the pursuer's averments, the winch was used simply because it occurred to Hill that the operation would be thereby facilitated. That action on Hill's part can, in my judgment, in no way render the defenders liable.
The Court recalled the interlocutor appealed against and dismissed the action as irrelevant.
Counsel for the Pursuer (Appellant)— Constable— Hendry. Agents— Cowan & Stewart, W.S.
Counsel for the Defenders (Respondents) — Morison, K.C.— Paton. Agents— Wallace & Begg, W.S.