Scottish Court of Session Decisions

John Littlejohn, rivet-heater, Govan, raised an action in the Sheriff Court at Glasgow against John Brown & Company, Limited, engineers and shipbuilders, Clydebank, to recover damages for injuries sustained by him on 26th March 1906, as he averred, through the fault of the defenders while he was in their employment, or of those for whom they were responsible.

The pursuer averred—“(Cond. 2) On 26th March 1906 the pursuer entered the employment of the defenders as a rivet-heater, and was engaged assisting in the construction of a steamship in the defenders' said yard. Pursuer while so employed worked under the orders and supervision of Philip Shields, who was also in defenders' employment, and who was a foreman or superintendent in the sense of the Employers' Liability Act 1880, his sole or principal duty being that of superintendence. (Cond. 3) About 10·30 a.m. on said date, after pursuer had been about half an hour in defenders' employment, he was ordered by said foreman to work under the orders and directions of a rivetter in defenders' employment, whose name and address are to pursuer unknown, but are known by defenders, who are called upon to state same, and to proceed to a scaffolding erected in the engine room of the said ship in order to heat rivets. Said scaffolding consisted of three planks about 12 feet long. At one end the said planks rested against the shell of the ship, and at the other end on an iron beam. Pursuer had to lower himself down from the deck to said scaffolding, a distance of 6 feet, first stepping on an iron plate. When pursuer on said date, in conformity to the order of the said rivetter, stepped from the deck to said scaffolding, one of the planks of said scaffolding canted and gave way under him, and pursuer fell down to the bottom of the shell, and a rivet-heating fire which was on said scaffolding fell on top of pursuer. Pursuer received extensive burning of his head, body, and his right hand. He also received injuries by bruising and contusion.… (Cond. 5) The said accident to the pursuer was due to the fault and negligence of defenders, or of those for whom they are responsible, in respect that the said scaffolding was in a defective condition. The planks forming the platform of said scaffolding on which the fire was stationed, and on which the pursuer had to work, rested at one end against the hollow shell of the ship, and at the other end were laid loosely on an iron beam. Owing to the fact that the shell of the ship was hollow, the planks slipped when the weight of pursuer was placed on them, and it was evident to the defenders and their said foreman that the ends of said planks resting against the hull of the ship would slip when pursuer or other persons stepped on same.… Said scaffolding was part of defenders' plant and appliances, and was in a defective condition. The planks forming said scaffording were only half an inch or thereby in thickness. This caused them to bend and warp under the weight of said fire and of pursuer, and made them entirely unsuitable for the purpose for which they were used. This was known to defenders and their said foreman but was unknown to pursuer, who had no previous experience of this work, and who had no opportunity of examining the scaffolding.”

The defenders, inter alia, pleaded—“(3) The pursuer not having been in the employment of the defenders, the defenders are entitled to absolvitor.”

In connection with plea 3, the following averment was made by the defenders in their Ans. 2—“Explained and averred that the pursuer was engaged by, and was in the employment of, a squad of independent contractors doing certain work for defenders on a vessel in course of construction in defenders' yard.”

On December 11th 1906 the Sheriff-Substitute ( Fyfe) dismissed the action on the ground that there was no relevant averment of fault or negligence, but, the pursuer having appealed to the Court of Session, on November 9th 1907 his interlocutor was recalled and issues ordered. An issue having been approved, evidence was led before Lord Guthrie and a jury on February 6th and 7th 1908, when the jury found for the pursuer and assessed the damages at £50.

The relations of parties were thus described by the witnesses for the defenders:—Philip Shields, foreman rivetter ( examined)—“A rivetters' squad is composed of three men and a boy—two rivetters, one holder-on, and a boy. The rivetters are paid by piece-work. They contract with us for so much per hundred rivets. The rivetters employ their own holder-on and their boy. The holder-on and the rivet-heater do not appear in our pay-lists—just the rivetters. The foreman keeps a record of their time; of course it is the result of their work that we pay the rivetters by. We do not keep any record of the time of the rivet-heater or of the holder-on—just the squad. So far as the holder-on and the rivet heater are concerned, they are paid entirely by the rivetters. They are under the control of the rivetters. (Q) Who engages the rivet-heater?—(A) The rivetter. (Q) And who dismisses him?—(A) The rivetter, of course. (Q) It is suggested that before they can do so they would tell the foreman; is there anything of that kind?—(A) Some may and some may not, but it is an everyday occurrence to send a boy away and pick up another one without me knowing anything about it. (Q) Are they entirely under the orders and control of the rivetters?—(A) That is so. I remember when Littlejohn

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was taken on to the job. There is what is called a ‘market.’ That is just a place where men come for employment. They come chiefly from nine till a quarter to ten. I recollect of Littlejohn being there. He was standing there amongst other boys while two rivetters named Gemmell and Lacey came up and said their boy had run away, or gone away to serve his time in the morning, and they wanted another one, and they did not know any of the boys about here, but I might try and get one for them. My assistant foreman, Frank Davis, said, ‘Here is a boy over here, he is able to heat,’ and I said, ‘Where is he?’ and I got the boy and asked him if he was able to heat, and he said ‘Yes.’ I spoke to Gemmell and said, ‘Here is a lad, perhaps he will suit you,’ and he said, ‘Any lad will suit me, for all I have got to do,’ and I said to the lad, ‘Well, you can go along with that squad.’ (Q) Did you engage Littlejohn?—(A) No. (Q) Did Davis engage him?—(A) No. (Q) Who engaged him?—(A) The rivetter Gemmell took him along with him … ( Cross)—(Q) Was it wrong to say that John Littlejohn was in the employment of Brown & Company?—(A) I don't know how to answer you. These rivetters had a contract with me. That contract was that they worked at the shell of a vessel at so much per hundred. (Q) Doesn't that come to this, that they act as your servants for so much per hundred of the rivets?—(A) Well, you know as well as I know. (Q) Aren't they your servants; aren't they subject to your orders?—(A) I cannot interfere with them while they are at their work as long as they do it right enough. (Q) Cannot you interfere with them in directing them where to do their work?—(A) As soon as they are done with one job I will give them another, but while they are on that job I cannot interfere with them. (Q) Aren't they subject to the rules of your works?—(A) Yes, I understand that all coming inside are subject to the rules of our works; there is a notice board to that effect—for accidents and things of that sort I believe. Our rules are put up at the entrance to the yard.… ( Re-examined.)—If I desire to do anything because of misconduct, I go to the rivetters. It is only with them that I deal—piece workers. If I had any objection to the work as it was going on I would complain to the rivetters.”

William Ford, chief clerk ( examined)—“(Q) By whom are the rivet boy and the holder-on engaged?—(A) By the rivetters. (Q) By whom are they paid?—(A) By the rivetters. (Q) And by whom are they dismissed if it becomes necessary to dismiss them?—(A) By the rivetters. The defenders have no control whatever over the rivet boy or the holder-on in the execution of their work.… ( Cross)—Gemmell and Lacey were certainly contractors here. They contracted to do certain work—putting in rivets. (Q) What was the rate at which they were to do it?—(A) It depends on what particular rivets they were putting in. There is a fixed rate, and it depends on how many at that rate—the style of rivet and the size of rivet—their contract would produce for them. The firm supplies the fire, the rivets, and the staging. All materials are supplied by the firm, and simply labour is contracted for by Gemmell and Lacey. The firm supplies the tools. (Q) Is there any case in your yard of a contract of this kind—putting in rivets—for a slump sum?—(A) Not to my knowledge.… ( By Court)—(Q) In regard to the books belonging to the firm, do the names of holders on or of rivet boys appear in any of your books?—(A) No. We have no attendance books for our foremen. All our workmen work with checks—a little disc about an inch by three-quarters, which has a number on it. Each man's number is in our time books. (Q) Take contractors and the persons who work under them; whether they are servants or not legally, are their names in any of your books?—(A) They are provided with one of these checks, and the timekeeper for the time being keeps these names in scroll in pencil for himself.… I will explain it in this way—When we contract with a squad of rivetters we give each of the four a metal check with a number. The iron department is ‘A’ department. We will assume one of the rivetters was 2000, the other rivetter would be 2001, the holder-on would be 2002, and the rivet boy 2003. We only recognise the names of the two rivetters in our books. At the same time, when these checks were handed out by the time-keeper, he would take a note in scroll in pencil of the names of the men or boy to whom he had handed these checks. Whenever that squad was disbanded he would rub these names out and put in new names again. (Q) Among others, he would take the name of the pursuer, I suppose, as being one of the rivet boys?—(A) Well, it is thought his name was not taken, being such a short time in the yard, but in the ordinary course he would.”

James Lawson, head timekeeper ( examined)—“The two rivetters engage the holder-on and the rivet heater. The two rivetters pay the rivet boy and the holder-on. The rivetters take them on or dismiss them as they think fit.… We don't keep the time of piece-workers at all; it is so much per hundred or so much per yard, as the case may be, that we pay them. We have a record of the time they work as a squad; you find in the rivetters' piecework book the amount of time they work each day. Opposite the names of Gemmell and Lacey we keep the time that the rivetters work. (Q) Leaving them to deal in any way they please with the rivet boy and the holder-on whom they employ?—(A) As far as the holder-on is concerned there is a set agreement between the rivetters and him; the holder-on gets 15s. to the rivetter's £1, but the rivetters make their own bargain with the rivet boy.”

The engagement of the pursuer was thus described by himself—“( Examined)—I went down on 26th March 1906 to a place in the yard called ‘the market.’ That is where people stand who want

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a job. I saw Francis Davis, one of the foremen. I asked him if he was wanting any rivet boys. He told me to stand a minute. A man named Lacey came forward. Lacey asked the foreman for a rivet boy. Davis told me to go along with him and heat rivets to him. I went off with Lacey. I started on the ship in question which was being built in the yard. I started to heat rivets. A man named Gemmell told me what to do. He went down with me to the scaffold … ( Cross)—(Q) Was it Gemmell or Lacey who employed you?—(A) It was Francis Davis who told me to go along with Lacey. Lacey and Gemmell spoke to me about my wages. I did not know that Lacey and Gemmell were contractors for doing the rivetting work on the vessel. I did not know what they were. It was Gemmell who spoke to me about my wages, not Lacey. Gemmell said that if I were a good boy he would give me £1 or 24s.… ( Re-examined)—It was Gemmell who spoke to me about the wages. Neither Shields nor Davis was beside me when he was speaking to me about the wage. (Q) Who could dismiss you?—(A) The squad could go to Davis and get me dismissed. (Q) But whenever they want a boy do they go to Davis?—(A) Yes. (Q) And in the same way when they want to get rid of a boy they go to Davis?—(A) Yes.”

Gemmell, the rivetter, ( examined) stated—“(Q) How did you come to employ Littlejohn?—(A) Well, I sent my mate Lacey for a boy to the foreman rivetter Mr Shields. I think it was Davis who sent Littlejohn to heat rivets for us, because our boy was not there. Lacey came back with the pursuer, and I started him at ten o'clock that morning. (Q) In whose employment was Littlejohn?—(A) In Brown's employment. (Q) You never thought anything else, did you?—(A) No. I could not have dismissed him myself.”

Lacey, the other rivetter, ( cross) stated—“(Q) When you say that Littlejohn was in Brown's employment, you mean that he was working at their works; is that what you mean?—(A) Yes. Gemmell and I would have paid him if he had worked out.… (Q) When you went to the foreman, had the foreman or the under foreman any conversation with Littlejohn, or did he just say, ‘There are lads there, go and take one there'?—(A) No, Davis went and picked him and sent him along with me. He did not tell him to make his terms with me and Gemmell. (Q) But in point of fact you employed him as your rivet boy, and you would have paid him?—(A) Yes. I did not fix his wage with him.… (Q) And if he could not have done his work, would you have just told him to take the road?—(A) I would have needed to go to the foreman, before we could give him the road, to tell him he was of no use. I do not know that the rivet boy's name is not on the pay-lists of the firm. It is necessary for them to have a note of everybody who comes into their work and where they live. The working arrangements of the rivet boy are between the rivetters and the boy himself—what he is to be paid and how long he is to work.”

At the trial the case on record was, so far as the nature of the alleged fault was concerned, absolutely contradicted, and was departed from, and an entirely new case sought to be established, namely, that the scaffolding running parallel with the ship's side was of defective construction inasmuch as the planks forming it rested at one end not on a thwart but on the top of a tank, to which they were not fastened, and from which they had slipped.

On June 2nd 1908, the Court, on the defender's motion, granted a rule for the pursuer to show cause.

Argued for the pursuer—(1) The pursuer was in the defenders' employment; virtually he was engaged by one of their foremen; the ultimate control of his work was by Shields, the foreman rivetter, who was over the squad. His wages were ultimately paid by the defenders, who could also in fact direct his dismissal. The Act applied to cases where the employment was not direct but through intermediaries— Morrison v. Baird & Company, December 2, 1882, 10 R. 271, 20 S.L.R. 185. The true test was—whom did the employee look to as his employer? In any view there was some evidence of direct employment to support the jury's verdict. That was sufficient. (2) Although a different case of fault from that upon record had been made at the trial, no objection or motion for adjournment had been made and the evidence could not now be rejected.

Argued for the defenders—(1) No claim could be made under the Employers' Liability Act 1880 unless the relation of master and servant was established. Morrison v. Baird & Company ( cit.) was decided on relevancy upon averments of entire control over all the workmen, per opinion of Lord Moncreiff, L.J.C., at 10 R. p. 284, and that case was distinguished in Nicolson v. Macandrew & Company, July 7, 1888, 15 R. 854, 25 S.L.R. 607. The relationship of master and servant involved direct engagement, payment, control, and power of dismissal— Cairns v. Clyde Navigation Trustees, June 17, 1898, 25 R. 1021, 35 S.L.R. 808; Robertson v. Russell, February 6, 1885, 12 R. 634, 22 S.L.R. 404; Sweeney v. Duncan & Company, June 17, 1892, 19 R. 870, 29 S.L.R. 777. (2) The evidence of fault should be construed unfavourably because of its departure from the case on record.