Scottish Court of Session Decisions

Thomas Milligan, aged fifteen, residing at 66 M'Alpine Street, Anderston, Glasgow, brought an action in the Sheriff Court at Glasgow against Robert Muir & Company, coppersmiths, &c., 146 Lancefield Street, Glasgow, to recover damages at common law, and alternatively under the Employers Liability Act 1880, for injuries sustained by him while in their employment. He averred that on 19th April 1891 “he went to a machine, as instructed by his foreman, and in his full knowledge and with his approval, to assist at the working of said machine, which was being used for cutting sheets of copper. Explained that the copper-cutting machine is situated quite close to the wall. The point of the handle, which is on the rim of the wheel, is only 18 inches from the wall. On the date in question there was a considerable quantity of sheets of copper laid against the wall opposite the machine and the handle of the machine, and also on the side of the handle on which pursuer would have stood. A boy, Dunlop, who was considerably taller than pursuer, was working the handle on one side, and pursuer was placed on the other side of the handle facing him. Owing to the presence of masses of copper pursuer could not use the handle, but had to help to turn the fly-wheel by catching the rim. He worked in this manner in sight and with the knowledge of the foreman all day, and was not forbidden to do so. He had been previously working it in the same way, which was the only possible method open to pursuer, and that with foreman's knowledge… . Explained that the machine is driven by mechanical power by means of a heavy fly-wheel and handle attached thereto, by which it is driven by hand-power. Pursuer was assisting the lad named Dunlop in turning the fly-wheel, when his left hand, slipping off the wheel, was caught between the large spur and pinion-wheels, which are situated about 4 inches distant from the fly-wheel, and severely crushed… . The machine in question, where the pursuer had to work it, is of a most dangerous character. It was the duty of and incumbent on the defenders, in terms of the Factory and Workshops Act, to have the machinery fenced or protected, which could easily have been done at a trifling expense, and without interfering with the usefulness and working of the machinery. Had this reasonable precaution been adopted, the work would have been perfectly safe, and injury rendered impossible. Further, it is usual and customary for such machines to be so fenced.”

The pursuer pleaded—“(1) Pursuer having been injured as before narrated through

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the fault or negligence at common law of the defenders, or those for whom they are responsible, he is entitled to decree. …. (3) The defenders, or those for whom they are responsible, having been in fault in failing to have fenced or protected the machinery in question, as they were bound to do both at common law and under the Factory and Workshops Acts, they are liable to the pursuer in terms of the first conclusion.”

The defenders pleaded—“(1) The pursuers' statements are irrelevant.”

On 22d June 1891 the Sheriff-Substitute ( Lees) allowed a proof before answer.

“ Note.—The pursuer says that his hand was caught between the large spur and pinion-wheels adjoining the fly-wheel of a copper-cutting machine. He avers that the machinery should have been fenced, and that it is usual to fence such machinery. This is perhaps a little vague, and if the defenders averred that the machinery should not be fenced, it would be reasonable to desiderate from the pursuer some statement as to how the fencing should be provided. This issue, however, can hardly be said to be raised. And probably the structural difficulty in fencing the machinery in question might not be great. There must therefore be a proof so far of the allegations of parties.

But an important question seems likely to arise as to whether there was a statutory obligation on the defenders to fence the machinery. The defenders contend that there was no such obligation. I should fancy that the pinion-wheel might probably enough be the means of communicating motion from the first moving power, and in that event it might answer to the description of mill gearing which would require to be fenced. But it seems doubtful whether in any aspect the machinery in question comes within the provisions of the statute. I have therefore thought it best to allow a proof under reservation of pleas of parties, because when a description of the machine is given by a competent person, it will at once appear whether the condition of matters was such that fencing was obligatory under the statute.”

The pursuer appealed to the Court of Session for jury trial, when the defenders argued in support of their plea of irrelevancy—(1) There was no averment of fault on the part of anyone for whom they were responsible. On his own showing the accident was due to the pursuer's carelessness. He might have removed the copper if it was in his way. (2) There was no obligation upon them to fence either at common law or under the Factory Acts. Fencing was not here a reasonable precaution— Little v. Paterson & Son, November 7, 1890, 28 S.L.R. 64. The wheel here was not “machinery in a factory;” it was not driven by mechanical power, and did not therefore fall under the provisions of the Factory Act 1878 (41 and 42 Vict. c. 16), sec. 5, sub-sec. 1, and sec. 93. (3) No express order to work in the way the pursuer had done had been given by the foreman. His presence was not equivalent to such an order.

Argued for pursuer—(1) He had been ordered to work when in consequence of the presence of the copper he could not turn the wheel otherwise than as he had done. For that order of their foreman the defenders were responsible. The pursuer was not barred from recovering damages because he knew of the risk— Baddeley v. Earl of Granville, 1887, L.R., 19 QBD 423; and Smith v. Baker & Sons, July 21, 1891, H. of L., 7 Times Law Rep. 679, and cases there commented upon; Employers Liability Act 1880 (43 and 44 Vict. c. 42), sec. 1, sub-secs. 2 and 3; (2) The defenders were bound to have fenced this wheel at common law as a reasonable precaution, and under the Factory Act 1878, sec. 5, sub-secs. 1 and 3, and secs. 93 and 96. This wheel was driven by mechanical power. [ Lord Trayner—Was it not driven by “manual labour” as distinguished from “mechanical power?”]

At advising—