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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Coll v. The Alloa Coal, Co., Ltd [1909] ScotLR 465 (05 February 1909)
URL: http://www.bailii.org/scot/cases/ScotCS/1909/46SLR0465.html
Cite as: [1909] ScotLR 465, [1909] SLR 465
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SCOTTISH_SLR_Court_of_Session
Page: 465↓
Court of Session Inner House Second Division.
[Sheriff Court at Stirling.
v.
Expenses — Sheriff Court — Jury Trial — Misdirection — Appeal — New Trial — Expenses of Trial and Appeal.
Facts:
Circumstances in which the Court, set aside the verdict of a jury in the Sheriff Court in an action for damages at common law, or alternatively under the Employers' Liability Act 1880, and ordered a new trial on the ground of misdirection.
Circumstances in which the Court set aside the verdict of a jury in the Sheriff Court, on the ground of misdirection, and ordered a new trial, but found neither party entitled to expenses.
Mrs Bridget O'Donnell or M'Coll raised an action in the Sheriff Court at Stirling against the Alloa Coal Company, Limited, for damages at common law, or alternatively under the Employers' Liability Act 1880 (43 and 44 Vict. cap. 42) in respect of the death of her husband Daniel M'Coll, who was killed while at work in one of the defenders' pits.
The facts are given in the opinion ( infra) of the Lord Justice-Clerk.
The defenders pleaded—“(1) The death
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of the deceased Daniel M'Coll not having been caused through the fault or negligence of the defenders or those for whom they are responsible, defenders are entitled to decree of absolvitor, with expenses.” On 4th September 1908 the Sheriff-Substitute ( Mitchell), on the motion of the pursuer, appointed the action to be tried by jury in terms of section 31 of the Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), and thereafter on 15th October pronounced an interlocutor appointing the following questions to be put to the jury:—“(1) Was the death of the said Daniel M'Coll due to the fault of the defenders themselves. (2) Was defenders' system of work defective, and was the death of Daniel M'Coll due thereto: (3) Was the
condition of the works, machinery, or plant used in raising or lowering said scaffold defective, and in what respect. (4) If so, did said defects or any of them arise from, or continue owing to, the negligence of the defenders, or of James Roberts and Robert Clements or either of them, while in the defenders' employment and entrusted with seeing that the works, etc., were in proper condition. (5) Were James Roberts and Robert Clements or either of them superintendents for the defenders, or persons to whose orders or directions deceased was at the time of the injury bound to conform, within the meaning of the Employers' Liability Act 1880. (6) Was the death of the said Daniel M'Coll due to the negligence of the said James Roberts and Robert Clements, or either of them, when in the exercise of any such superintendence, or when giving orders or directions on behalf of defenders to deceased to which he was bound to conform and did conform.…”
Questions 7, 8, and 9 related to the amount of damages.
In the course of the trial the defenders' agent took, inter alia, the following exceptions to the Sheriff's charge:—“(1) The first direction to which I take exception is that in which your Lordship directed the jury that the deceased Daniel M'Coll was in the employment of the defender. (2) That there being no averment on record alleging incompetence against the manager Roberts, I take exception to your Lordship's direction to the jury that they might consider whether Roberts was a reasonably competent manager.… (4) I take exception to your Lordship's direction that the manager Roberts was a person in superintendence. (5) I take exception against your Lordship's direction to the jury that Roberts, the manager, should be held as knowing that the winch was being used for raising and lowering men.… (7) I take exception to your Lordship's direction that the jury should consider the position in which the winch was placed as inferring liability upon the defenders at common law.”
The jury unanimously returned the following answers:—“(1) Yes. (2) Yes. (3) The condition of the machinery was defective in respect that the drum was not capable of carrying with safety the amount of rope which was coiled on it at the time of the accident. The danger was aggra vated by the fact that a young and inexperienced man was in charge of the winch at the time of the accident. (4) Said defects arose from and continued owing to the negligence of the defenders and of their manager James Roberts while in the defenders' employment, and instructed with seeing that the works, etc., were in proper condition. (5) Yes; both were superintendents within the meaning of the Employers' Liability Act 1880. (6) The death of the said Daniel M'CoIl was due to the negligence of the said James Roberts when in the exercise of such superintendence.”
On 11th December 1908 the Sheriff-Substitute applied the verdict as at common law, and decerned against the defenders for payment of the sum found due by the jury.
The defenders appealed, and argued that the verdict should be set aside on the grounds, inter alia, ( b) that the verdict was contrary to evidence, ( c) that evidence was unduly admitted and rejected; that the Sheriff misdirected the jury, and that he refused certain directions asked.
The pursuer argued that as liability at common law had been established the question whether the deceased was in the employment of the defenders or not was irrelevant. They cited Smith v. London and St Katherine Dock Company, 1868, L.R., 3 C.P. 326; Simpson v. Paton, March 12, 1896, 23 R. 590, 33 S.L.R. 413; M'Lachlan v. S.S. Peveril Company, Limited, May 27, 1896, 23 R. 753, 33 S.L.R. 634; Heaven v. Pender, 1883, L.R., 11 Q.B.D. 503; Trail & Sons v. Actieselskabat Dabeattie, Limited, June 7, 1904, 6 F. 798, 41 S.L.R. 614. The pursuers also cited (1) in support of their contention that the appointment of competent servants did not relieve the defenders of liability— M'Killop v. North British Railway Company, May 29, 1896, 23 R. 768, 33 S.L.R. 586; and (2) with regard to the form of the exceptions and the directions asked— Woods v. Caledonian Railway Company, July 9, 1886, 13 R. 1118, 23 S.L.R. 798; Addie v. Western Bank, June 9, 1865, 3 Macph. 899; Hogg, &c., v. Campbell, &c., June 23, 1865, 3 Macph. 1018; Glass v. Paisley Race Committee, October 16, 1902, 5 F. 14, 40 S.L.R. 17.
At advising—
The undoubted facts are that one Clements undertook by a contract which is in writing the making of a coal-pit shaft, and that the
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The accident which has led to the litigation was caused by a jerk to the rope, the result of the rope mounting the flange at the end of the drum and falling off, the platform hanging from the rope being thus made to move suddenly and stop suddenly, throwing a workman down the shaft. This is alleged to have been caused by the flange being too shallow for the quantity of rope coiled on the drum, and that the winch was set in a line not straight with the pulley, and that the winch was in charge of an incompetent man The case made therefore is one of bad plant, badly handled.
The defenders' case is that the winch and rope, although their property, were handed over to Clements as a contractor in sound order, that it was not being used by them at the time, and that it was not intended to be used, and should not have been used, for raising or lowering the platform when men were standing on it.
One would have supposed that so simple a case could have been dealt with without any serious complication or difficulty. But as I have said the record is most unsatisfactory, neither the averments nor the answers being framed so as to bring out well the questions to be put in issue. The pursuers by the form of their condescendence accuse the defenders, a limited company, of supplying a winch, wrongly constructed, wrongly placed, and served by an inefficient man set to work at it by the defenders. They also say that Roberts, the defenders' manager, was responsible for the use and working of the winch, and that they are responsible for his fault. Their case is thus on record put solely on the allegation of the deceased having been at the time of his death an employee of the defenders. The only answer of the defenders is to be found in a quoad ultra denied, but they do not as one would have expected, make any specific averment as to how the facts stand according to their view, or state specifically that the deceased should not have been on the platform at a time when it was to be moved. The defenders proposed to put the matter as regards employment right, by making an addition to their answer by adding an averment that the deceased was in the employment of Clements, who was a pit sinking contractor, and not in their employment. But while the minute was lodged before the questions for the jury were adjusted, the amendment was never formally added to the record, but simply lay in the process.
All this is most unfortunate. Then the Sheriff-Substitute adjusted nine questions to be put to the jury. I do not think it necessary to go over them in detail. The defenders took no steps to have them amended. They are certainly in such number as is not I think advisable in such a case. I must also further remark that if such a crowd of questions were to be put, one would have expected to find a question as to whether the deceased was in the employment as a servant of the defenders—as to whether Clements was a contractor and the deceased was his servant. No such questions are put.
I pass over also the exceptions which were taken to the allowance or disallowance of evidence. I also pass over the directions asked from the Sheriff and refused by him. These might require careful consideration if it were necessary for deciding whether the verdict could stand. But in the view I take of the case they may be passed over.
But when we come to the directions given by the Judge to the jury, very serious considerations come in. Here again there are many directions excepted to. Most of the directions seem to me to be objectionable. The first was that the deceased Daniel M'Coll was in the employment of the defender. It is new to me that a judge can, in the exercise of his duty, tell the jury what they must find in fact. The matter on which the order to find a particular fact was given, was of the very essence of the questions of fact between the parties.
The second was that they might consider whether Roberts was a reasonably competent manager. On this I shall only make this comment, that there is no averment on the record, and no evidence, that Roberts was not a “reasonably competent manager.” If the Judge meant that the jury might judge of the question whether the defenders selected a reasonably competent manager when they engaged him, by considering the facts proved in regard to the accident which was the subject of inquiry, and on the ground of these facts holding that they had not selected a competent manager, such a direction would be erroneous. I cannot imagine under what other idea the direction could have been given. Plainly the question of reasonableness in selection depended on the character and reputation and qualifications of the man at the time they engaged him. The propriety of their conduct cannot be judged of by something done or omitted by him on the occasion in question.
The fourth and fifth directions were “that the manager Roberts was a person in superintendence; that Roberts, the manager, should be held as knowing that the winch was being used for raising and lowering men.” Both these directions were directions to the jury that they were not to form their own opinion on fact, but to take the opinion of the Sheriff. The observations I have already made on the first direction apply to these also.
The seventh direction was “that the jury should consider the position in which the
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It seems to me that the case having gone to the jury on such directions as these, it is impossible to do otherwise than to sustain the exceptions to the directions 1, 2, 4, 5, and 7, and to order a new trial.
Had it been necessary to consider the case on the question of the verdict being contrary to evidence, I will only say that it would have been very difficult to hold that the verdict was not open to exception as being contrary to evidence.
I will only add that I think it lamentable that in a simple case like this there should be placed before us notes of evidence filling 163 pages of print, the case having occupied three long days. Such a case would certainly have been tried in this Court in one day, and the print of notes if required would certainly not have been one-third of the size of that in this case.
If such cases are conducted in the Sheriff Court as this one has been, instead of jury trial in that Court being a blessing to litigants, it will prove something very different to the unfortunate litigants who either come into Court as pursuers or are hailed to Court as defenders.
The Court pronounced this interlocutor—
“Sustain the appeal and recal the … interlocutor appealed against, as also the whole interlocutors since the closing of the record on 20th August last:… Allow the bill of exceptions, set aside the verdict, grant a new trial, and remit the cause to the Sheriff to proceed therein.”
The defenders moved for expenses, and argued that the rule in Canavan v. John Green & Company, December 16, 1905, 8 F. 275, 43 S.L.R. 200, did not apply to jury trials in the Sheriff Court.
The Court found neither party entitled to expenses from the date of closing the record.
Counsel for the Pursuer (Respondent)— CrabbWatt, K.C.— J. A. Christie. Agents— St Clair Swanson & Manson, W.S.
Counsel for the Defenders (Appellants)— Watt, K.C.— Carmont. Agents— W. & J. Burness, W.S.