Scottish Court of Session Decisions

LORD STRACHAN'S OPINION.—In April 1955 the pursuer was employed by the defenders as a finisher at their mills at Kilmarnock, where, I understand, the defenders manufacture carpets. The pursuer worked on the sixth floor of the mills and the only means of access to, and egress from, that floor was a staircase leading to the fifth floor and similar staircases leading from there to the ground floor. At about 5.45 P.M., on 22nd April 1955, just after work had ceased for the day, the pursuer sustained injury to her ankle when she was descending the staircase along with other employees of the defenders. She contends that her injuries were caused by the fault of the defenders or of their servants and she now sues for damages.

The pursuer's case is that when she had reached a point between the third and fourth landings she was caught up in a rush of workers down the staircase, that she was jostled by the crowd which consisted entirely of the defenders’ employees, and that, as a result of being jostled, she missed her footing, stumbled, and fractured her ankle. She seeks to make the defenders liable upon two grounds. First, she avers that they were themselves negligent in respect that, although they knew or ought to have known that every day, at the time when work ceased for the day, the staircase was overcrowded with large numbers of their employees who rushed quickly and wildly down the staircase, they failed to take reasonable steps to remove the dangers resulting from that overcrowding. Second, and alternatively, the pursuer avers that the accident was caused by the negligence of the other employees who jostled her on the staircase, and she maintains that the defenders are vicariously responsible for that negligence.

It is conceded by the defenders that the first ground of action is relevantly stated. There must, therefore, be an inquiry into the facts so far as bearing upon that matter. I say no more about that branch of the case.

Counsel for the defenders has, however, argued strongly that the second ground of action is irrelevant and should be excluded from probation, in respect that the defenders are not responsible for the alleged negligence of the other workers, because, at the time of the jostling which is averred, these other workers were not acting in the course of their employment. It was argued that the other workers were outwith the course of their employment (1) because, according to the pursuer's own averment, their work had ceased for the day, and (2) because, in any event, if they rushed downstairs, the pursuer's averments show that they were thereby doing something which had been expressly prohibited by the defenders.

The question whether, for the purposes of the maxim respondeat superior, a servant was acting within the course or scope of his employment has frequently come before the Courts. A general statement of the result of the decisions is set forth in Salmond on Torts, (11th ed.) at pp. 105 and 106. A wrongful act by a servant will be held to have been done in the course of his employment, if it was a wrongful and unauthorised mode of doing some act authorised by the master, and, on the other hand, if the wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act, the master is not responsible. If the present case were to be judged by that test, it may be that the defenders’ argument would fail, if the proper way of looking at the facts is to hold that the workers were "authorised" to go down the staircase, and that the rushing and jostling were negligent ways of doing that authorised act. But that approach to the case takes no account of the special point in this case which is that work for the day had ceased. The hooter had blown. The workers were on their way to the buses in order to get home. Counsel for the defenders argued that, by virtue of the fact that work had ceased for the day, I must hold that the workers were no longer acting in the course of their employment. Curiously enough, it appears that there is no reported decision on that point in this particular chapter of the law, with the exception of a recent single Judge decision in England to which I shall refer later. In other chapters of the law, however, there are cases which appear to be adverse to the defenders’ argument. For instance, in workmen's compensation cases (to several of which I was referred) it was held frequently that the course of the employment extended beyond the hours of actual work. These cases may not be a wholly reliable guide for present purposes, because they were interpreting a statutory phrase, but it is, I think, significant that, in considering what was the course of a man's employment, the Courts rejected the view that the employment necessarily ended when the hours of work ceased. The principle on which these cases were decided was stated thus by Lord Atkin in Weaver v. Tredegar Iron and Coal Co., [1940] A. C. 955, at p. 966 :

"There can be no doubt that the course of employment cannot be limited to the time or place of the specific work which the workman is employed to do. It does not necessarily end when the down tools signal is given, or when the actual workshop where he is working is left. In other words the employment may run on its course by its own momentum beyond the actual stopping place. There may be some reasonable extension both in time and space …"

A similar result was reached in some cases where the Court was considering a defence of common employment—e.g., Tunney v. Midland Railway, (1866) L. R., 1 C. P. 291. In Brydon v. Stewart, (1855) 2 Macq 30, which was a case dealing with a master's duty to take reasonable precautions for the safety of his workmen, Lord Cranworth said (at p. 36) :

"But whatever the man does in the course of his master's employ, according to the fair interpretation of these words, eundo, morando, redeundo, the master is responsible."

The recent English case is Staton v. National Coal Board, [1957] 1 W. L. R. 893. Finnemore, J., there had to consider much the same question as is raised in the present case, and he decided that an employer was liable vicariously for the negligent act of a servant after he had finished his work for the day. That case, however, had the special feature that the negligent servant was on his way to collect his wages from the pay office at the time in question.

Upon the foregoing authorities I am not prepared to hold that an employee cannot be within the scope of his employment when his hours of actual work have ceased. In my opinion, it must be a question of circumstances in each particular case.

While, therefore, I reject the defenders’ major argument, I am not prepared to decide, at this stage, that the workers who are said to have jostled the pursuer were at the time acting within the scope of their employment. Counsel for the pursuer submitted that I could now decide that question on the averments. After consideration, however, I have come to the opinion that the safer course is to postpone my decision until the full facts are known. I should like to know more about the terms of employment, and, after all, the averments give me very little, if any, information about the employment of the other workers. While the lay-out of the staircase is fully described, and admitted, it may be important to know precisely what the workers had to do before reaching the buses. In any event, the question must depend to some extent upon the impression one forms as to the scope of the employment from the circumstances as a whole. Further, the question whether the workers were prohibited to rush downstairs has also to be taken into account, and on that matter it will be important to know just what instructions they received.

The result is that, in my opinion, a proof before answer is the appropriate procedure to adopt. Counsel for the pursuer moved for jury trial, but the case seems to me to be quite unsuitable for a jury. The question whether the workers were acting within the scope of their employment will involve the application of the principle of many decided cases to the facts which may be proved, and I regard those questions of mixed law and fact as clearly forming ‘special cause’ for sending the case to proof.

I shall allow a proof before answer on the whole case.

On 7th May 1959, after a proof before answer, the Lord Ordinary (Strachan) held that the defenders were vicariously liable for the negligence of the employees who caused the pursuer to be pushed on the stair, and awarded the pursuer £300 damages.

LORD STRACHAN'S OPINION.—The circumstances out of which this action has arisen were set forth in my judgment of 28th January 1958 which was given after a hearing in Procedure Roll, and to which I refer. I then allowed a proof before answer on the whole case. That proof has been heard, and I have now to decide the case upon the evidence which has been adduced.

The accident to the pursuer happened while she was going down a staircase in the defenders’ carpet factory at the end of a day's work. The building in question consisted of eight storeys, and the workers from all the eight floors used the same staircase in order to get to the ground floor. There was a landing at the level of each floor and a half-landing midway between each floor. The structure of the staircase is clearly shown on the photographs which are Nos. 19 and 20 of process. At the bottom of the staircase there was a comparatively small passage-way or yard which led into the public street. The evidence does not disclose the exact breadth of the stairway, but it appears that three or four people could walk abreast upon it. At the time of the accident there was a handrail on both sides of the stair. The pursuer in evidence said that there was a handrail on only the left side going down, but I prefer the other evidence, and, in my opinion, the pursuer was mistaken on that matter.

In the whole of this eight-storey section there were between one hundred and fifty and two hundred workers, but about twenty of those on the top floor did not use the stairway in question. The pursuer worked on the sixth floor, on which there were sixty or seventy workers who were mostly women. On the seventh floor above her there were about fifteen men, all of whom used the stair, and from the eighth floor a total of about twenty workers used the stair, of whom some were men and some were women.

Work for the day finished at 5.45 P.M., and at about that hour special buses waited in the street below to convey the workers to the various districts of the town in which they lived. The procedure for leaving the building was as follows. At 5.43 P.M., a signal was given on each floor by a flashing light, and, on that signal, the workers were allowed to leave their work and go for their coats. But they were not allowed to leave their department and go on to the stairway until the hooter blew at 5.45 P.M. The result was that, on the sixth floor at least, most of the workers got their coats ready immediately the light signal was given, and then queued up at the door ready to go on to the stair immediately the hooter was blown. The evidence shows that, when the hooter did blow, no time was lost by the workers in getting to the stair. For those who went home by bus there was an incentive to hurry so that they might be successful in getting seats on the special buses which were waiting.

The pursuer at the time of the accident was about forty-two years of age, and was not so agile as many of the male workers or the younger female workers. None the less she was usually among the first to line up at the door of the department ready to leave on the sounding of the hooter. It was suggested for the defenders that she was one of those who hurried downstairs. The pursuer admitted that she was often among the first at the door, and that she hurried on to the stair, but the reason which she gave for that was that she wanted to be in a position to get hold of the handrail. She kept hold of it and walked downstairs. I accept her evidence on that matter.

The facts which the pursuer has proved fell short of the case which she averred in her pleadings, but the evidence does show that some of the employees frequently rushed down the stair. The pursuer averred that each evening large numbers of the employees would rush down the staircase, jostling and pushing each other in their endeavours to obtain a place in the buses, and this was described as a daily disorganised rush of several hundred workers, and it was averred that it had caused accidents to several employees on previous occasions. In article 3 of the condescendence the pursuer averred that she was always exposed to the considerable danger of being violently jostled or pushed aside or crushed or kicked by the defenders’ employees. The pursuer led no evidence of any previous accidents. The evidence for the defenders was that, although some bumps and bruises had been received on the stair, there had been no previous accidents of a serious nature. It is not disputed that some employees did rush downstairs, but, in my opinion, it is an exaggeration to say that large numbers jostled and pushed each other. Because some did rush, the defenders put up large notices at each half-landing in the following terms :—

"Safety First. Do Not Rush Downstairs."

One of those notices has been produced. Other notices were exhibited in each department. In spite of the notices, some employees continued to run downstairs.

It is necessary to consider in greater detail what happened on the day of the accident, and what the pursuer has proved to be the cause of the accident. On that day, the pursuer was, as usual, at or near the front of those who were lined up at the door of the sixth floor waiting for the hooter to blow. On the hooter being blown, she went forward and got hold of the handrail on her left going down. She then walked safely, and apparently unmolested, down to the fifth floor, and from the fifth floor to the fourth floor. It was between the fourth floor and the third floor that the accident happened. According to her own story, the pursuer had for some distance been walking downstairs, immediately behind a Mrs Bowie and immediately in front of a Mrs MacGill. Mrs Bowie did not give evidence. A medical certificate to explain her absence was referred to, but no motion was made for her evidence to be taken on commission. Mrs MacGill did give evidence, and she and the pursuer were the only witnesses who spoke to the facts leading up to the accident. The pursuer's story is that, while walking down in the manner which I have described, with Mrs Bowie in front and Mrs MacGill behind, she was pushed on her right shoulder and "birled" right round; she "kind of slipped"; her foot went away, and she went over on her ankle; she finished up facing the bannister which had previously been on her left-hand side and she grasped it with her right hand, in addition to the hold which she already had on it with her left hand. As a result of going over on her ankle, the pursuer sustained the injuries to her right ankle which are described in the agreed medical report No. 25 of process.

The pursuer attributes the accident to the actings of two or three men who were coming downstairs, and who had just caught up with her. She alleged that those men were running downstairs, and that they were running down on the outside, or right-hand side, of the staircase. The pursuer could not say who pushed her. She admitted in cross-examination that there were people between herself on the inside and the men on the outside, and. if that is correct, it would seem to follow that the running men did not come into immediate contact with her.

Mrs MacGill's story is in some respects different from that of the pursuer. Mrs MacGill was very definite that she was walking downstairs at the right-hand side of the pursuer, and not behind her. She also came from the sixth floor, and she said that they both came down together. Her evidence is that the men from the flats above regularly rushed down the stair, but she admitted that she herself had never been jostled or pushed by one of those men. She was really not very helpful as to the facts leading up to the accident. At one point she described the accident in the following terms :—

"She just gave way. She just fell."

When asked what caused the pursuer to give way, she replied that she could not tell that. She stated that the pursuer was pushed, and that the pursuer was pushed from behind, but, when pressed on the point, Mrs MacGill admitted that she did not see anyone pushing the pursuer, and her evidence about the push seems to be based on the fact that the pursuer said that she had been pushed. It is to be noted further that Mrs MacGill said nothing about the two or three men rushing down the stair on the right-hand side. Her version is that there was a continuous rush of workers from behind all the way down from the sixth floor.

Upon the foregoing evidence, the question arises as to whether the pursuer has proved that the accident happened in the way in which she says it did. The stories told by the only two eye-witnesses are different, and I was at first inclined to come to the conclusion that the pursuer's case failed because of lack of corroboration. Upon further consideration, however, I am of opinion that that would be too narrow a view. In the circumstances of the crowded stair discrepancies are to be expected in the accounts of any two witnesses as to what happened at the time of an accident. As there certainly were many people moving down the stair, and as it was a comparatively narrow stair, they must all have been fairly close together, and it is not surprising that no one saw any particular person pushing the pursuer. I see no reason to think that the pursuer was deliberately inventing an explanation for her injury, and I am prepared to accept her evidence as substantially true. From the evidence as a whole it is, I think, proved, that this stair, just after the hooter had blown, was usually crowded with employees, and that some of those employees rushed downstairs to such an extent that the defenders’ officials were concerned about the safety of the staircase, and some of the employees were anxious about their own safety. I am entitled to have regard to the probabilities of the situation, and I have come to be of opinion that the pursuer's explanation of her accident is a very probable one, and I think that the evidence as a whole affords sufficient corroboration of it. I hold that the pursuer has proved that her injury was caused by reason of her having been pushed on the stair, and that the push was, in turn, caused by some employees having rushed downstairs, probably the men referred to by the pursuer. It may be that those men did not come into direct contact with the pursuer, but I think it very likely that their rushing caused the jostling in which the pursuer was pushed.

The next question is, whether on the evidence the defenders are liable to the pursuer in damages, and, on that matter, I shall consider first the pursuer's case that the defenders were themselves negligent, in respect that they failed to take reasonable care for the pursuer's safety. The case is that the defenders were aware of the overcrowding on the staircase and the resultant danger, but failed to take all reasonable steps to remove the danger. In the pursuer's pleadings it was averred that the defenders (a) should have provided an alternative means for descending to the ground floor so as to relieve the congestion on the stair; or (b) should have so phased the ceasing of work on the various floors that the staircase was never overcrowded; or (c) should have appointed persons with authority to regulate and control the numbers using the staircase. The first, of those alternatives was departed from by counsel for the pursuer, and it is therefore unnecessary to say anything about it. In regard to alternative (b) it was suggested that each floor should have had a separate time for its workers to do down the stair, and I assume that it would have been possible to do so, although it might have affected the volume of production. In regard to (c)it would clearly have been possible to appoint supervisors to control the crowd. There is, however, no evidence that either of those precautions is ever adopted by other employers in like circumstances, and, applying the rule of Morton v. William Dixon, Limited, 1909 S C 807, the defenders can therefore be liable on this branch of the case only if the precautions under (b) or (c) were so obviously necessary that it was folly to omit to provide them. In my opinion, they were not so obviously necessary as that. The defenders’ duty was to exercise reasonable care, and I think that they did so. For adult workers, who must be assumed to be possessed of ordinary common sense, I think that the defenders did enough in putting up the very obvious notices to remind the workers not to rush downstairs and in sending representatives of their managerial staff to be present on the staircase from time to time, while the workers were leaving the factory. I would add in regard to alternative (b) that I am not at all satisfied that phasing the ceasing of work in the way suggested would have prevented the accident, for it is by no means clear that the people who caused the pursuer to be pushed came from a floor other than that on which the pursuer herself worked.

For the foregoing reasons I am of opinion that the defenders were not themselves negligent.

The second branch of the case is that the defenders are liable vicariously for the negligent actings of the employees who rushed downstairs and caused the pursuer to be pushed. On that matter I am of opinion, in the first place, that the employees who rushed downstairs were negligent. I think that that is obvious, and it does not need elaboration. These employees clearly had a duty to take reasonable care for the safety of others who were using the stair, and they failed to do so. The real defence on this branch of the case is that the defenders are not in law liable for the actings of the employees who caused the pursuer to be pushed, because those employees were not acting within the scope of their employment, the main argument being that they could not be acting within the scope of their employment because their work for the day had ceased. That point was fully argued at the Procedure Roll discussion, and in my previous opinion I referred to the authorities which were then cited. No new authorities were cited after the proof, and the evidence has not thrown much light on this question. I do not propose to decide any general principle in this connexion, for I am of opinion that each case must depend on its own particular facts. Having regard, however, to the authorities previously cited and to the circumstances of this case, I am of opinion that the employees in question did not cease to be within the scope of their employment merely because the hooter had blown and their actual work for the day had ceased. Coming down that staircase was a necessary incident of their employment. They could not do their work without going to, and coming from, their place of work by means of the staircase. Perhaps the most significant feature of the matter in this case is that the defenders themselves purported to control and regulate the way in which the employees were to go down the stair. The notice which was exhibited in each department specifically drew attention to "regulations" for, inter alia, that matter, and the concluding paragraph of that notice is as follows :—

"Failure to observe these regulations will be dealt with by suspension or dismissal."

In the whole circumstances, I am quite definitely of opinion that the employees were still within the scope of their employment while coming down the staircase.

It was further argued that the employees, who are alleged to have been negligent, were not acting within the scope of their employment, because they were doing something which had been prohibited. In my opinion, however, the true view of the situation is that they were doing something which they were authorised to do, and which indeed they had to do, that is to say, going downstairs, but were doing it in a way which had been prohibited. That being so, the defenders are not excused from liability, and on this point also I refer to my previous opinion.

I therefore hold that the defenders are vicariously liable for the negligence of the employees who caused the pursuer to be pushed. [His Lordship then dealt with matters with which this report is not concerned.]

The defenders reclaimed, and the case was heard before the First Division (without Lord Russell) on 20th, 21st and 22nd October 1959.