Scottish Court of Session Decisions

Robert Robertson, ironmoulder, Ferry Road, Leith. brought an action against Primrose & Company, ironfounders, Albert Foundry. Leith, in which he claimed the sum of £500 as damages for personal injuries sustained by him while in the defenders' employment.

The pursuer averred—“(Cond. 2) In the defenders' works at Albert Foundry foresaid there are four cranes. One of them, which is situated near a furnace, is an old wooden crane with a wooden upright and jib, having a heavy double purchase iron chain block, weighing 40 or 50 lbs., hanging from the jib. On or about 19th September 1906 the pursuer was engaged at his work near said furnace when he received the injuries after mentioned. The pursuer's duties consisted of his preparing moulds in sand upon the floor of the workshop to receive the molten metal for moulding it into shape, and necessitated his doing said work in a stooping or sitting posture. The pursuer was in the act of rising when he was suddenly and without any warning violently struck on the right side of the head and beneath the right eye by the said iron chain block of said crane and hook attached to it, whereby he was seriously injured and his cheekbone fractured immediately under the right eye.… (Cond. 4) On the morning of 8th October 1907, about six o'clock a.m., the pursuer, who had continued in the employment of the defenders, … was again struck by the iron chain block of said crane on the right side of his head. He was engaged at his said work of making moulds in connection with a pedestal.… It was quite dark at the time, and the shop was, moreover, badly and insufficiently lighted. The light was not sufficient to enable the pursuer to continue his work, and when the chain block struck him he was in the act of rising to go for a lamp to improve the light. About 11 a.m. he took a fit, which was the result of the injuries before mentioned, and he was thereupon dismissed by the defenders from their employment.… (Cond. 6) The foresaid accidents were due to the fault of the defenders. A crane in proper order remains stationary at any point where it is being worked. The crane in question, however, was very much off the plumb, with the result that it would only remain stationary at the point of its equilibrium. When it was being worked at any point other than the point of equilibrium it at once swung back to this point whenever the work was done. The result of this movement was that the jib with pendant iron chain block swung through the air until the point of equilibrium was reached. On both occasions when the pursuer was struck by the iron chain block of said crane it was moving back to the point of equilibrium from the place where it had been used. The defenders knew that said crane was off the plumb, and that it was a source of danger to the pursuer and anyone whose place of work was at or near the line of its orbit as it moved towards the point of equilibrium, but they failed to remedy this defect although that could easily have been done. There was no mechanism in connection with said crane whereby the craneman could prevent it swinging in the manner condescended on. If said crane had not been off its plumb said accidents would not have happened. At the beginning of the present year it was substantially in the same condition in which it was at the dates of the accidents to the pursuer. Further, the second blow received by the pursuer was in part due to the defenders' fault in failing to have their premises properly lighted.…”

He proposed the following issues—“(1) Whether on or about the 19th day of September 1906, and in or near Albert Foundry, Jane Street, Leith, the pursuer while in the employment of the defenders was injured in his person through the fault

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of the defenders, to the loss, injury, and damage of the pursuer?” (2) [ The second issue, which referred to the accident on 8th October 1907, was in similar terms.]

The defenders pleaded, inter alia, that the pursuer's averments were irrelevant.

On 6th July 1909 the Lord Ordinary ( Guthrie) dismissed the action as irrelevant.

Opinion.—“I disallow both issues.

“The record makes it clear that when the second accident took place on 8th October 1907 the pursuer was fully aware of the danger connected with the crane. He avers that ‘the crane was very much off the plumb, with the result that it would only remain stationary at the point of its equilibrium. When it was being worked at any point other than the point of equilibrium it at once swung back to this point whenever the work was done.’ The risk was therefore a constant one, because the action of the crane was constant. What it had done on the previous occasion, namely, on 19th September 1906, when the pursuer received the injury which is the subject of the first issue, it would necessarily do again under similar circumstances. Therefore the pursuer knew the nature and extent of the danger, but I think it also sufficiently appears that he consented to run the risk. He does not allege that he made any complaint to the master or his representative, or that he obtained any promise to have the alleged defect in the crane rectified.

The first issue is in a different position. I do not say that it is necessarily in all circumstances for a pursuer to allege in a case of this kind that he was ignorant of the danger—see Griffiths v. London Docks Company, 1883, 13 QBD 259. But in the circumstances of this case, reasoning back from the pursuer's conduct in connection with the second accident, I cannot assume, as might have been possible in other cases, that he means it to be inferred that he was not prior to the first accident aware of the condition of the crane and of the nature and extent of the risk connected with its use. If he was so aware, it is not alleged that he made any complaint or received any assurance of redress, and he must therefore, on the averments as they stand at present, be held to have known and consented to undertake the risk of the kind of accident which happened in both cases.”

The pursuer reclaimed, and argued—The pursuer could not be held to have taken the risk of either accident happening. As regards the first accident the Lord Ordinary had reasoned backwards from the fact that the pursuer had remained in the same employment. His Lordship was in error in so doing, for the fact that the pursuer continued to work after the first injury did not imply an agreement to relieve his employers of responsibility for the consequences of their fault— Wallace v. Culter Paper Mills Company, Limited, June 23, 1892, 19 R. 915, 29 S.L.R. 784. Esto that the pursuer was sciens quoad the risk of a second accident, he certainly was not volens. Whether he was volens or not was a question of fact for the jury in each case— Smith v. Baker & Sons, [1891] AC 325. The case of Griffiths v. London and St Katherine Docks Company, L.R., 13 QBD 259, referred to by the Lord Ordinary, was prior to that of Smith v. Baker. Since the decision in Smith v. Baker there had been no case in which the Court had sustained a plea to relevancy on the ground volenti non fit injuria. That maxim only applied where it had been proved that the pursuer not only knew of the risk but also fully appreciated it. The pursuer was therefore entitled to inquiry.

Argued for respondents — The Lord Ordinary was right. Esto that it must be shown that the pursuer was both sciens and volens, he was so here. Where, as here, the risk was obvious and constant, and the pursuer had remained in his employment, the inference was that he was volens as well as sciens. Where, as here, such an inference was plain the case of Smith v. Baker ( cit. supra) did not apply— Driscoll v. Commissioners of Burgh of Partick, January 10, 1900, 2 F. 368, 37 S.L.R. 274. An agreement to undertake the risk was valid— Smith v. Baker ( supra), per Lord Watson at p. 357; and where, as here, the risk was obvious, then such an agreement would be presumed—Bevan on Negligence, 3rd ed., i, p. 641.