Scottish Court of Session Decisions

Alexander Milne, carter, 10 Carmelite Street, Aberdeen, brought an action of damages for £500 in the Sheriff Court at Aberdeen against W. C. Townsend, granite and marble merchant, 38 Portland Street, Aberdeen, for the loss of his son, who had been mortally injured on 21st April 1891 by the fall of a crane while in the defender's premises, and had died the following day.

He averred—“The cause of the accident was the snapping or giving way of an iron bar which fastened one of the crane stays to the ground, and the defect could have easily been discovered upon a fit and careful examination of the crane by the defender, and it was the duty of the defender to examine this iron bar so minutely as to enable him to see a crack which was there, and so to prevent the mischief… . Separatim—If it was not the duty of the defender in ordinary circumstances, it became his duty so to minutely examine the said iron bar after he knew the crane was defective. It broke down on four occasions, and two men were injured by it. When repairing the defects on these occasions it was the duty of the defender to have had the crane made complete in every way, and to have seen that it was put in a fit condition to work, as such a state of things called for the exercise of greater vigilance than ordinary on the part of the defender.”

The defender pleaded—“(1) The accident having occurred through a latent defect in the machinery belonging to the defender, the defender is not liable in any reparation to the pursuer.”

A proof was allowed, from which it appeared that the defender's crane was erected in 1887; that the sole plate upon which the uprights stood gave way, that the crane did not come down, and that the defect was rectified; that in June 1889 the top strap gave way, and that the crane came down and injured one of the workmen, and that immediately thereafter the defender instructed Mr Sangster, from whom the crane had been got, to put the crane into thorough working order. Shortly before the accident in question, the jib-rope gave way, and the jib came down, but that was not due to any deficiency in the crane. The accident in question was caused by the lower iron strap breaking.

Mr Sangster deponed—“I went over the crane in June 1889, and examined the strap. I examined the lower strap as well as all the other parts of the crane. I satisfied myself at that time that there was no defect in the lower strap. The same lower strap was used in the reconstruction of the crane. I was quite satisfied with the lower strap… . I have examined the strap since the breakage. There was a defect in the left hand side of the strap at the lowest hole prior to the accident, but the lower surface adhered after the upper part was fractured. … From an examination of the fracture I could not say that it was discoverable. Wood covered the upper surface of the strap, and part of the bolt covered the lower surface of the strap, and I don't think that the crack could be seen by examination. There was no other way to discover a defect of this sort except by heating. I don't think scraping would have made the crack visible, unless there had been some weight upon the crane so as to open the crack. After what I had done to the crane in 1889, I don't think an employer would be looking for a crack in April 1891. We often find in a bar of even the best iron that part of it is fibrous and part crystalline. You can only discover that in breaking it cold. I see that the

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strap has been painted. I do not think when it was painted that it would have been possible to discover this crack.”

James Cosgrove, the defender's fireman, deponed—“I did not discover the defect before the accident. I don't think it could have been discovered. There was nothing to obstruct the view. The crack could have been seen if it was apparent. I never saw it. The crane was warranted to lift three tons. On the day of the accident Milne came with a lorry-load of stone to the yard. I was in the lorry making preparations to fix the dogs into the stone. There was nothing on the crane. It was swung right round, waiting till such time as I prepared the stone, and it came down without any stone on it. The result of the lower strap giving way was that the crane as a whole came down. I have many times examined the strap in question. It was the hole through which the bolt passes which fixes the strap to the concrete that I examined principally. I examined the bolt more carefully than the other parts of the strap. I did not take my knife to it.”

J. M. Henderson, a witness for the pursuer, deponed—“I have been an engineer for twenty-six years. The defender's crane was brought to me on April 24th 1891. When I saw the strap after it was newly broken, it showed an old break. The crack was over a third of the surface. It had been there for some little time, because it was discoloured. It is possible that a common blacksmith could have detected it, but it is very difficult to detect a flaw from the exterior. If a person had been scraping it, and looking close, he might have detected it. They might have seen it if they had scraped off the dirt and the paint. I know that this crane gave way a year or a year and a-half before, because I was asked to contract for it, but I put in an offer prohibitive of its being accepted. I did so purposely. I did not wish to have anything to do with that crane. If the crane had been sent to my workshop after the upper strap had broken, I should have thought it necessary to examine the lower strap. I should have heated it, because that is the only practical way of examining it. If a crane had been thoroughly overhauled in June 1889, it would be unusual for the foreman to examine it by scraping between that date and April 1891 if there was nothing to create suspicion. Had I repaired the crane in June 1889 I would not have expected it to be looked to between that time and April 1891. (Q) If you were told that a week before the accident in question the rope had broken and the jib had fallen, would you have considered it necessary to thoroughly overhaul this crane?—(A) I would not have thought it necessary. The rope had nothing to do with the guy or the jib. In taking the case of a young crane, a competent foreman would go over the iron work every two years, and before painting it he would scrape it, and examine it for cracks. That in my opinion would be sufficient supervision.”

Upon 14th November 1891 the Sheriff-Substitute ( Hamilton Grierson) pronounced the following interlocutor:—“Finds … (11) That on the 21st April 1891 the lower strap gave way and the crane came down, killing the pursuer's son; (12) that at the time of the accident there was no stone or other weight attached to the lifting apparatus of the crane; (13) that between the date of the re-erection of the crane and the date of the accident there was nothing in the appearance of the crane, or any part of it, or in the manner in which it worked, to suggest any suspicion to those using it or superintending it that it was defective in any respect in any part of its construction; and (14) that part of the material of the strap, at the part where the breakage occurred, had become crystalline, and that this could not be discovered by inspection of the external surfaces: Finds in law that the defender is not liable to the pursuer in damages in respect of the death of the said pursuer's son: Therefore assoilzies the said defender from the conclusions in the prayer of the petition and decerns: Finds the defender entitled to expenses, &c.

“ Note.—The result of the cases seems to be that an onus lies on the pursuer to prove defect, and that when he has done so the onus is on the master to show that he was not negligent in inspection; and when he has discharged that burden, it rests with the pursuer to show that a proper inspection would have discovered the defect. This principle was given effect to in a case very similar to this— Gavin v. Rogers, November 30, 1889, 17 R. 206. No doubt the cases of Fraser v. Fraser, January 6, 1882, 9 R. 896, and Walker v. Olsen, June 15, 1882, 9 R. 946, seem at first sight irreconcilable with this view. But they are explained in Macfarlane v. Thomson, December 6th, 1884, 12 R. 232, and shown to be really in accordance with the principles enunciated in Macaulay v. Buist & Company, December 9, 1846, 9 D. 245.

Now, the crane in question was thoroughly overhauled in June 1889, and from that date until the date of the accident it worked without fault (for the accident to the jib may be left out of the case). This is important, and receives additional weight from the observation of the Lord Chancellor in Hawson v. Barrett, 4 Times L.R. 449, cited in Beavan on Negligence, p. 421, note 5. I am clearly of opinion that there is no evidence to show that this crack was observable, and that the inspection by the foreman was sufficient in the circumstances. The evidence goes to show that there was no crack in the lower surface prior to this accident. I was also referred to Francis v. Cockrell, L.R., 5 Q.B. 184, 501, and to Heske v. Samuelson, L.R., 12 Q.B.D. 30; see also, Harpers v. Great North of Scotland Railway Company, July 9, 1886, 13 R. 1139. and Rooney v. Allans, July 17, 1883, 10 R. 1224.”

The pursuer appealed to the Sheriff ( Guthrie Smith), who upon 9th February 1892 recalled the judgment of the Sheriff-Substitute and pronounced the following interlocutor:—“Finds it proved that on 21st April 1892 a crane in the defender's

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yard fell in consequence of its being defective and insufficient, and killed the pursuer's son, who was lawfully on the premises at the time, and that said insufficiency was due to the fault of the defender: Finds the defender liable in damages, assesses the same at the sum of £150, for which decerns: Finds the defender liable in expenses, &c.

“ Note.—… . Such being my conclusion on the facts, I think the defender must be held responsible for the insufficiency of the crane. The cases cited in the note to the interlocutor under review were chiefly cases of master and servant, inapplicable to the relation which here subsists, which was not that of master and servant. The lad who was killed was a stranger lawfully on the premises for the purpose of transacting business. The law holds that he came by the owner's invitation and on the representation that it was safe for him so to do. The owner does not, indeed, insure his safety. He does not warrant that no accident shall occur; but he undertakes to do his best to prevent it. The responsibility is much the same as arises when a loose tile falls from the roof of a house and injures someone on the street below. The obligation imposed on the owner of the property to indemnify the person injured is as old as the civil law, but with the qualification expressed in the text—“ Si œdificii vitio id accider it non si volentia ventorum vel qua alia ratione quœ vim habeat divinam” (Dig. xxxix., 2, 24, sec. 24). There may, indeed, be a difference between the degree of care to be taken of the general public and the more limited public with whom you do business. But the difference is not great, and the mode in which the question is to be determined is the same in both cases. We must apply the principle which was applied in a case from this Court— Walker v. Olsen, 9 R. 956—namely, res ipsa loquitur. A crane does not come down when lifting nothing without some cause. It is not for the injured person to explain what the cause was. It is for the owner to show that the crane was not defective when first put up, and that there had been no want of supervision to detect any supervening flaw. I acquit the defender of any failure on the latter head. I think his foreman did examine it periodically without detecting any signs of weakness; but I think he has failed to prove that in the selection of material for its construction adequate care was taken to insure its strength and guard against the possibility of accident when it was re-erected in 1889.

The only other question is, whether when such a failure has been proved, is it enough for the owner to say that he put it into the hands of a competent tradesman to be put into thorough repair? The case of Cleghorn v. Taylor, 18 D. 664, read along with Tarry v. Ashton, 1 QBD 314, decides that the person injured has no concern with the tradesman. The owner is the person with whom he has to deal, and I have accordingly been obliged to find the defender liable in damages.”

The defender appealed to the First Division of the Court of Session, and argued—No fault had been proved on the part of the defender, who was not liable, as the defect was latent— Harpers v. Great North of Scotland Railway Company, July 9, 1886, 13 R. 1139. The judgment of the Sheriff proceeded entirely upon the previous history of this crane, and upon the defender's not discarding the lower strap when he discovered that the upper strap had become crystalline. But the previous accidents were in no way connected with the one in question, and the defender had no reason to suppose that because one piece of iron was in an uncommon state, the rest of the iron must be in a similar condition. Should he have discarded all the iron about the crane? He did the wisest thing possible, for he sent the crane to be thoroughly overhauled by Sangster, a competent engineer, who says he examined it and passed the lower strap. The Sheriff had also unwarrantably proceeded upon the maxim res ipsa loquitur so as to relieve the pursuer of the necessity of proving his case. But it was for the pursuer to prove that the accident was caused by a latent defect which could have been detected by such inspection as the defender was bound but had failed to make— Macfarlane v. Thomson, December 6, 1884, 12 R. 232, and Gavin v. Rogers, November 30, 1889, 17 R. 206, both later than the cases of Fraser and of Walker relied on by the pursuer. This he had not done. All the witnesses were agreed that only heating could have detected the flaw, and that it would have been unreasonable to expect anyone to make such an inspection of the crane within two years of a complete overhaul. Similarly the crack—if it had anything to do with the accident, which was doubtful—could not have been detected without removing the paint, which it was quite unnecessary to do so soon. The Sheriffs were agreed that the defender's foreman had carefully inspected the crane in the ordinary way.

Argued for the respondent—Even where the exact cause of the accident was unexplained, fault through negligence on the part of the owner of the defective apparatus might be inferred from the accident itself— Fraser v. Fraser, January 6, 1882, 9 R. 896; Walker v. Olsen, June 15, 1882, 9 R. 946; Kearney v. London, Brighton, and South Coast Railway Company, June 15, 1870, L.R., 5 Q.B. 411—aff. 6 Q.B. (Exchequer Chamber) 759. Here the accident had been caused by the iron becoming crystalline, and that such would probably happen, and should have been guarded against, was made plain to the defender in 1889. He was in fault in continuing to use this strap after what happened then; it should have been discarded—see Henderson's evidence supra. The crane must have been very defective, for, although calculated to support 3 tons, the upper strap broke at a strain of 5 cwts. and the lower with no weight on at all. The defender was liable for any accident that might have been anticipated— Beveridge v. Kinnear & Company,

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December 21, 1883, 11 R. 387; Findlay v. Angus, January 14, 1887, 14 R. 312; Cormack v. School Board of Wick and Pulteneytown, June 21, 1889, 16 R. 812. A person was bound to have his premises and machinery so as to be safe for the public legitimately using them— Brady v. Parker, June 7, 1887, 14 R. 783—and it was no defence to say he had employed a capable tradesman— Cleghorn v. Taylor, February 27, 1856; Campbell v. Kennedy, November 25, 1864, 3 Macph. 121; Tarry v. Ashton, January 24, 1876, L.R., 1 QBD 314; Francis v. Cockrell, February 21, 1870, L.R., 5 Q.B. 184. Besides, Sangster here did not say he had applied heat, although he said that that was the only thorough method of testing. If he had employed that method the defenders would have elicited the fact from him. More careful and more frequent inspection would have discovered the defect.

At advising—