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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mathieson v. Weems [1867] ScotLR 4_56 (31 May 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/04SLR0056.html Cite as: [1867] SLR 4_56, [1867] ScotLR 4_56 |
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Page: 56↓
Reparation
A master held responsible
Page: 57↓
for the death of a workman, the accident causing death being due to the insufficiency of some machinery provided by the master.
This was an advocation from the Sheriff-Court of Renfrewshire. The interlocutor of the Lord Ordinary ( Kinloch) pronounced on 4 th January 1859, was as follows:—“Finds it proved in point of fact—1st, That he deceased son of the pursuer was killed whilst working in the defender's employment on or about the 12th day of November 1855; that at the time of his death he was residing with the pursuer, his mother, and was her chief support; 2d, that the death was caused by a cylinder of nearly two tons in weight, which was suspended perpendicularly, and under which he was working in the course of his employment by the defender, falling on him and instantaneously killing him; 3d, that the fall of the cylinder and the consequent death arose in consequence of the defender not having taken due precaution to insure the safety of the workmen employed by him in connection with this cylinder, and of the apparatus for suspending the mule being defective and insufficient, more particularly inasmuch as the hoop and bolts, used as parts of the said apparatus, were in the circumstances insufficient for the due suspension of the cylinder, and the lifting chain was attached to the hoop in an unskilful and insufficient manner. In these circumstances finds, in point of law, that the death of the pursuer's son was occasioned by the fault of the defender; and that the defender is, in respect thereof, liable in damages to the pursuer.”
This interlocutor was adhered to by the First Division of the Court on 17th February 1860.
The advocator (defender in the Inferior Court) is a plumber and tinsmith. He has a foreman in each of the two departments of his business. But he is himself a man of skill in both departments. When personally present he does not rely upon the skill of his foremen but on his own skill. He gives the orders, and they act upon them, or cause them to be acted on. As regards the heating it was a patent invention of the advocator's own He had also invented the mode of soldering the pipes together, which resulted in the accident. That mode consisted in suspending the cylinder perpendicularly on a triangle, with a winch and chain, so that it could be lowered or raised, and the soldering effected by dipping the pipes, at its lower end, into the metal pot in Place of turning that end of the cylinder uppermost and pouring the solder from above. What peculiar advantage this plan had to compensate for its greater danger I inquired in the course of The debate, but was not informed. The proof is silent on that, point. A further part of the plan was to fill a portion of the tubes with sand, to prevent the solder from entering them; and this, again, induced the necessity of persons going under the cylinder to pick out the sand, so far as it adhered, between the tubes—a work in which Mathieson was engaged when he met his death, and which work would have been quite unnecessary had the simple plan been taken, which has since been adopted, of using metal plugs in place of sand. All the above arrangements were the advocator's own. There was nothing unlawful in them, although, so far as we see, they afforded no such important advantages as to justify an unusual risk of human life. At all events they were new, and the advocator, in adopting then, was bound to use such precautions as to exclude all risk of the apparatus giving way and killing the persons who had to work under the cylinder. He is responsible if he was careless, and he is equally responsible if his plan was simply unskilful—for no man is entitled to make experiments without the skill necessary to conduct them with safety to human life. Gross negligence is not necessary to liability.
Now, I think the plan followed here was both unskilful and careless. It is very likely that the accident occurred in the way suggested by the rewash porter to whom Procurator-Fiscal remitted:—viz., from the screw bolt which broke having been tightened more than it could bear. But as the cylinder was suspended entirely by the chain or hoop which embraced its circumference, it was necessary to screw the bolts very tight to make that chain or hoop cling fast enough to the cylinder, otherwise the hoop would have slipped upwards, leaving nothing above it to Prevent from doing so. There might have been various simple plans taken to obviate this. One, which was immediately afterwards adopted, was easy and palpable—to give the row of rivets which ran round the cylinder immediately above the hoop square heads in place of bevelled heads, and, if necessary, to I have made these heads a little thicker, so that they would prevent the hoop from slipping upwards, although it was not so tightly screwed to the cylinder as it must otherwise have boon. Another simple precaution would have been, as the Lord Ordinary observes, to have attached the ends: of the ascending to the ends of the hoop place of ayes or bands in its intermediate circumference. If the tightening of the hoop was alone to be trusted to, the sufficiency of the strength of the hoop and bolts, as well as of the lifting chain, ought to have been placed beyond all doubt. Another thing appears to me to have been easily practicable—to have had the cylinder supported from below as that it could not be moved by more accident. In place of this it is plain that very little pressure was Pressure was enough to move any one of the aside, and that, if this should happen (as unfortunately it did), the risk was greater than if there had been no blocking, because the cylinder would then come downwards with a jerk and cause a strain upon the machinery which it would not otherwise have been subjected to.
Now the advocator was aware that the cylinder in question, which was about two tons weight, was the heaviest he had over made. He saw the cylinder after the hoop was put on; he saw it on the Saturday after it had been so far raised on the triangle as to rest on the blocks. He saw it on the Monday morning, when it was further raised to allow the metal put to be put under it. He saw the sand put in by the men, and the cylinder lowered into the put, raised again about fourteen inches, and the blocks put in, in which state he left it between 9 and 10, knowing of course, that the usual picking out of the sand was the next thing to be done. He gave no directions before leaving about the blocking or anything else; and when he returned to the work, between 2 and 3 p.m., the catastrophe had occurred.
It is plain, in these circumstances, that if anybody was responsible for what occurred in the fair and ordinary working of the apparatus, it was the
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Now, it certainly cannot be assumed that the cylinder would have given way at that particular moment had M‘Arthur not put his foot on it and he ought undoubtedly, before doing so, to have warned Mathieson to remove from under it. Had he given this warning his anxiety about the apparatus would have been praiseworthy rather than blameable; for a link of the double chain had given way on the previous Saturday, and it is plain enough that there were misgivings among several of the workmen about the sufficiency of the apparatus, although they made no open complaint. But I cannot think that the advocator was entitled to rest contented with such a degree of strength and security in the apparatus as would be barely sufficient, if nothing occurred to cause any of the blocks to slip from under the cylinder, or the cylinder to slip from one of the blocks, either of which occurrences might happen at any moment, considering the nature of the blocking, the use of which he had sanctioned. Blair, one of the advocator's mechanics, says that when the advocator spoke to him about the accident, the day after it happened, “I said he had himself to blame for it, as I had told him, when making the previous heater, that the bolts were too weak.” If either the bolts had been strong enough, or the blocking had been sufficient the accident would not have occurred, notwithstanding of M'Arthur putting his foot on the cylinder. M‘Arthur could hardly be expected to anticipate that the blocking would slip from under the cylinder, as it seems to have done for Love, the foreman of the tinsmiths (who had no interest to misrepresent the matter, but rather the reverse), speaking to the moment immediately before the accident, says, “ I saw the blocks on my right canting inwards.” It is plain to any one that if the cylinder had been resting on a solid basis—for instance upon tresses and cross beams of sufficient strength—a body like the cylinder, of two tons weight, could not have been moved in any degree by the simple act of a man putting his foot on it. If the advocator had directed that the workmen should never go under the cylinder, except when it was so supported, there would have been less room to attribute to him personal neglect in that matter, whatever might have been his responsibility for the faults of others. But, as I have already observed, he gave no direction on this subject, although he was quite aware of the careless manner in which the blocking was usually managed. Even if he had given such directions, I think he was not entitled to be so niggardly of the strength of the suspending apparatus as that it should be sufficient only when the cylinder was in a state of rest; and, upon the whole, I am of opinion that the deceased's death falls properly to be attributed, not to rashness on the part of M‘Arthur, but to personal fault or negligence on the part of the advocator. As regards the amount of damages, I see no reason to disturb the assessment of the Sheriff, concurred in by the Lord Ordinary.
Weems appealed, but the House of Lords, on the 31st May 1861, dismissed the appeal, and adhered to the interlocutor of the Court below.
