Scottish Court of Session Decisions

Lord President—This case arises from an accident which occurred to the pursuer while he was engaged as a workman in the defenders' service in completing the construction of a vessel they had built. There is no doubt that when a vessel is in the course of construction the workmen engaged incur many risks of accident incidental to their employment, and in the present case one special source of danger was the existence of a number of man-holes which were left open for the convenience and necessity of the workmen in finishing the ship. The pursuer was employed in fixing on the mountings of the boilers, and the way in which he had reached his work up to 19th May, when the accident occurred, was by going down the fore hatch, but upon that day the fore hatch was closed, and he had consequently to make use of the after hatch. The averment is, that at the time of the accident—viz., 10 o'clock a.m.—“there were some lead pipes on the one side of the said man-hole, but it was otherwise quite unprotected, and on making his way to the boilers on the morning in question the pursuer on stepping across the foresaid lead pipes went into the man-hole, and fell violently upon the other side of it, breaking three of the ribs of his left side, and otherwise sustaining serious bruises and injuries.” Now, from the statement that the man-hole was unprotected, I do not understand that it should have been fenced, for that would be inconsistent with the purpose of it as a convenience to the workmen, and therefore the only material averment is that the lead pipes in question were between the pursuer and the man-hole, concealing the man-hole from him, and that in stepping over them on the way to his work he fell into the man-hole. Now, his own statement merely comes to this, that he did not look where he was going. It seems to have been a very careless proceeding upon his part, and if the light in the engine-room was dim at the time, as he says, that is a very great aggravation of his carelessness. He owed it to himself in threading his way to his work, through a vessel in which he knew there were open man-holes, to do so with very great care indeed, more especially if he had to pass through a part of the vessel that was dimly lighted, and this duty to himself he did not fulfil. The only other allegation of fault is contained in condescendence 5, in these words—“It was the duty of the defenders, or of their foreman the said James Aitken, to cover or protect the said man-hole in order to prevent accidents to their workmen, but although they had received repeated warnings of the danger by other workmen stepping into the said hole previous to the pursuer's accident, they failed to cover or protect the said man-hole, although this might have been done without in the least hindering the work and at insignificant expense.” But it is to be observed that the pursuer does not explain what he means by protecting the man-hole. These man-holes are left open that they may be constantly used by the workmen, and to make a relevant averment of a duty upon the defenders' part, and failure in that duty, it is incumbent upon the pursuer to demonstrate how the protection of the man-hole should be accomplished. I do not think any failure in duty is averred, and therefore I am for dismissing the case.

Lord Adam—The case is shortly this—The pursuer was an engineer in the employment of the defenders. For some weeks before the accident he was constantly about the vessel, and on 19th May he was injured when on his way to his work by falling into a man-hole. Now, it appears to me that a workman engaged upon a vessel in course of construction is bound to use care in going about, and this pursuer was aware there were a good many man-holes about the deck of this vessel, although it is averred he was unaware of the existence of the man-hole in question. He was bound accordingly to look after himself, and if the light was dim there was a more pressing duty upon him to take care; but he took no care at all, and fell into the man-hole. It is averred that the man-holes should have been protected, but that appears to be out of the question as inconsistent with the purpose for which they were there, and it is not said how they could be protected consistently with the proper progress of the work. I entirely agree with your Lordship.

Lord M'Laren concurred.