Scottish Court of Session Decisions

Upon 10th August 1892 John Wright, labourer, Maryhill, Glasgow, brought an action against James Dunlop & Company, Limited, coalmasters, 97 Bath Street, Glasgow, for £500 damages for personal injury.

The pursuer averred that he had been in the employment of the defenders as a labourer at their pits at Jordanhill, Glasgow, for about twelve years; that upon 25th April 1892 he was engaged under the superintendence of James Roy, the defenders' foreman, to whose orders he was bound to conform, in taking down a scaffold, which had stood for fourteen years at the mouth of the pit—the scaffold was

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being taken down in consequence of the pit having ceased working, and not in consequence of the defenders having any suspicion that it was weak or dangerous in any of its parts—and that while engaged in wrenching off the flooring on the upper platform of the scaffold at a part not usually subjected to traffic, one of the boards on which he was standing gave way, so that he fell a distance of 16 feet, and sustained injury—“(Cond. 6) The said accident, and the injuries which resulted to the pursuer therefrom were due to the fault of the defenders, in respect that the floor in question was in an insecure state in consequence of its age, and the state of decay into which it had fallen. In addition, the pursuer has subsequently discovered that the place where the board broke is the place where the fire-lamp was used for lighting the scaffold when the pit was working at nights, and in consequence of the careless conduct of the defenders the wood of the flooring had been allowed to become charred through the heat, and rotten through the ashes which had from time to time been allowed to lie on the flooring wet by the weather. The flooring of the scaffold beneath and surrounding the said fire-lamp was insufficiently protected by a small iron plate about a yard square which was not nailed or fastened to the floor, and beneath and surrounding which there were always accumulations of ashes. It was the duty of the defenders to have the said scaffold strong in all its parts, and as said fire-lamp might at any time have been removed from the part of the scaffold where it usually stood, and any part of said flooring trodden upon by the defenders' workmen, the defenders were guilty of carelessness and negligence in permitting any portion of said scaffold to become so rotten and weak that it could not support the traffic to which it was so constantly liable to be subjected, and a fortiori so weak that it could not support the weight of one of their workmen. The pursuer was not aware of the danger he incurred by obeying the order of the defenders or the defenders' foreman, especially as the scaffold had been used only a fortnight previously for heavy traffic, and was not being removed in consequence of any supposed weakness in its construction or otherwise, and he received no warning on the subject. It was the duty of the defenders to have first ascertained whether the work which they ordered the pursuer to do could safely be carried out before giving him said order. Had they done so, the weakness or defect in the floor would have been discovered, and the accident would not have occurred. Denied that the pursuer was well acquainted with the structure of the scaffold and its actual condition at the time of the accident.”

When the case was in the Outer House, at the suggestion of the Lord Ordinary the pursuer amended his record by inserting the following condescendence—“(Cond. 1) The pursuer avers and believes that the whole duties and responsibilities of working and managing the pits belonging to the defenders James Dunlop & Company were devolved by the shareholders of the said company upon William Storey Morton, the general manager and managing secretary of the company. The said William Storey Morton is the representative of the shareholders at the pits belonging to them, and is responsible to them for the proper conduct thereof. It is further his duty to attend the annual meeting of the shareholders, or other meetings held from time to time. The said William Storey Morton, as general manager or managing secretary, in particular visited the pit in question, where the accident after mentioned occurred, on an average twice weekly for several years, and the defective and dangerous condition of the scaffold thereat was well known to him. In any case it was the duty of the said William Storey Morton to have examined the scaffold prior to having ordered its removal. If this had been done the defect would have been discovered, and the accident as condescended on would not have occurred.”

The defenders pleaded—“The pursuer's statements are irrelevant. (6) The said William Storey Morton being a fellow-servant of the pursuer, and the defenders having exercised due care in selecting him as certificated manager of the said pit in terms of the Coal Mines Regulation Act 1887, the action is irrelevant as laid.”

Upon 16th December 1892 the Lord Ordinary ( Stormonth Darling) pronounced this judgment—“Having heard parties, opens up the record: Allows the parties to amend the same in terms of the minutes: Of new closes the record: Having considered the cause, sustains the first plea inlaw for the defenders, in respect whereof dismisses the action and decerns,” &c.

“ Opinion.—This is a case of damages for personal injuries which is laid entirely at common law, and therefore the pursuer must bring home fault to the defenders personally, in so far as fault can be said to attach to a limited liability company. I do not think that the principles regulating the fault of a joint-stock company are in any way different from those which regulate the fault of an individual, except that the very idea of a limited company renders it much less likely that anyone entitled to represent and bind them can take any direct personal supervision in the management of a work. In this case the accident is said to have arisen from the breakdown of a beam in the floor of a scaffold on which the pursuer was standing, in consequence of which he was precipitated some sixteen feet to a lower level. That is said to have occurred from the scaffold having become insecure from decay, and the decay is said to have been hastened by the manner in which the floor was used—certain ashes having been permitted to accumulate upon it, and the floor having thereby become rotten, first from the heat and then from the wet. These averments point clearly to a failure in the duty of inspection, but even by the amendment which the pursuer has been allowed to make he does not bring home the responsibility of the fault to any

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one except a certain Mr Morton, whom he describes as the ‘general manager and managing secretary of the company.’ Now, assuming that Mr Morton did fulfil these functions, and not merely the duties of a certificated manager, which the defenders say was his true position, I am of opinion that he must be regarded as a fellow-servant of the pursuer, and that therefore the action at common law is irrelevant. It is not said—it cannot be said—that the board of directors of this company in any way interfered in the management of the mine. It is not said that Mr Morton whom they appointed to this position was in any way incompetent for his duties. It is not said that he made any call upon them for the supply of any materials or the execution of any work which they neglected to execute or supply. Accordingly the case for the pursuer truly is, that Mr Morton allowed this scaffold to be used in the way I have described, and that partly from this misuse, and partly from natural decay, it became insecure. Now, the duties of an employer where he does not personally superintend the management of his business, are laid down by Lord Cairns in the case of Wilson v. Merry & Cuninghame, 6 Macph. (H. of L.) 84, in certain well-known words—‘What the master is bound to his servant to do, in the event of his not personally superintending and directing the work, is to select proper and competent persons to do so, and to furnish them with adequate materials and resources for the work.’ I think that, even upon the pursuer's statement, the defenders here have discharged both of the duties which Lord Cairns there specifies, and that therefore they are not responsible for any failure on the part of Mr Morton to observe the alleged decay of this platform, or to inform them of it. Mr Blair urged with great ability that a distinction was to be made between the case of a mere certificated manager, which was the position of the man Neish in the case of Merry & Cuninghame, and that of Mr Morton here, whom he describes as a general manager and managing secretary, but I am of opinion that there is no good reason in law for that distinction. Whatever may have been the true designation of Mr Morton's office, he was truly a servant of the defenders' company, and therefore, in my estimation, a fellow-servant of the pursuer. What the position of a managing director would have been I do not find it necessary to decide. If knowledge of the alleged defect had been in any way brought home to the board of directors themselves, or if there had been any failure on their part to supply proper materials and resources for the work, the case would have been entirely different; but none of these circumstances arises here, and therefore it is in my view a case which admits of being disposed of on relevancy and adversely to the pursuer. I shall therefore sustain the first plea-in-law for the defenders and dismiss the action.”

The pursuer reclaimed, and argued—1. The action was relevant at common law as raised against an individual employer. The pursuer averred that an improper system of working had been carried on—ashes had been allowed to accumulate upon the scaffold, which had caused the planks to rot. The defenders knew of this, or ought to have known of it, and to have had the scaffold inspected by an expert before ordering it to be taken down — Henderson v. John Watson, Limited, July 2, 1892, 19 R. 954. In suing a company, if a defective system is alleged, it is not necessary for the pursuer to give specific details as to who is answerable to the company for the carrying on of the works. It is enough if it is shown that the manager is aware of the system pursued, and allows it to be used. To hold otherwise, that a company could clear itself of liability by pleading that a competent manager had been appointed, would result in preventing an action for damages being brought against any company. Here the pursuer was engaged under the orders of a foreman in pulling down an old erection, and he did the work, relying upon the foreman's superior knowledge— Flynn v. M'Gaw, Feb. 21, 1891, 18 R. 554. 2. The manager was not in the position of fellow-workman. The cases in which the highest point had been reached were— Allen v. The New Gas Company, February 26, 1876, L.R., 1 Ex. Div. 251; Murphy v. Smith, May 31, 1865, 19 C.B. (N.S.) 361.

The respondents argued—The pursuer had averred want of reasonable precaution on their part. They had appointed a certificated manager; as they were bound to do by the Act, and if he conducted the business in a reasonable and ordinary method, the company was free from liability. All that the pursuer averred was that he was ordered to take down an old scaffold, of the building and use of which he must have known as much, if not more, than the manager or foreman. It was an ordinary piece of labourer's work, and the averments disclosed no fault on the part of the defenders. No such case was made here as in the case of Thomson v. Dick, May 19, 1892, 19 R. 805, although even then the pursuer was not successful.

At advising—