Scottish Court of Session Decisions

William M'Manus, labourer, Dundee, presented a petition in the Sheriff Court of Forfarshire, in which he prayed the Court to ordain J. & C. Hay, builders, Dundee, to pay him the sum of £40 in name of damages for an injury sustained by him in executing an improper order of the foreman of the defenders (in whose employment he was), and which resulted in the loss of the point of one of his fingers.

He pleaded—“(1) The pursuer having been injured by reason of the negligence of Johnstone, the defenders' foreman, for whom they are responsible, and to whose orders he was conforming, is entitled to decree as sued for; or otherwise (2) The pursuer having been injured by the act of Johnstone, or others in the service of the employer, in consequence of the impropriety of the instructions given by him, for whom the defenders are responsible, is entitled to decree for the sums sued for, with expenses.”

The defenders denied that the order was an improper one, and attributed the occurrence of the injury to the pursuer himself or to pure accident.

They pleaded—“(1) The injury complained of not having been caused through any fault of the defenders, or those for whom they can be made responsible, the action is untenable, and ought to be dismissed. (2) Separatim, the demand is excessive.”

By the 1st section of the Employers Liability Act 1880 (43 and 44 Vict. c. 42) it is enacted as follows—“Where, after the commencement of this Act, personal injury is caused to a workman … (3) by reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to conform, and did conform, where such injury resulted from his having so conformed, the workman shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of nor in the service of the employer nor engaged in his work.”

In the proof which was led the following facts appeared:—The defenders were employed by Mr Bissett, baker, Dundee, to remove the engine-seat of an engine which he had bought from a Mr Birnie, from a certain yard to his premises in Hilltown, and they instructed Robert Johnstone, their foreman, to get this done. Accordingly the latter with four men, of whom the pursuer was one, proceeded to perform the job. The engine was moved off the seat by rollers, and it then became necessary to get it into a convenient position for the purpose of placing it in a cart. Johnstone then, discarding the ordinary mechanical means of rollers, notwithstanding that he was warned by Birnie that it would be safer to use them, and that the lift was, in Birnie's opinion, too heavy for five men, ordered the men to grasp a flange under the engine, and slew it round in order to bring the heavy end near the cart. When the men had got the engine from twelve to fifteen inches from the ground Johnstone let go his hold in order to get a brick to put under it, and then the engine came down on to the ground and crushed the pursuer's finger. The engine was subsequently raised to the cart with the assistance of seven men. There was evidence to the effect that five men were amply sufficient in ordinary circumstances to perform the job.

The Sheriff-Substitute ( Cheyne) found that (1) the order to lift the engine was given by the defenders' foreman, to whose orders the pursuer was bound to conform; (2) that the order was, in the circumstances, a negligent and improper one; and (3) that the pursuer's injury resulted from his having conformed to the order: Found in law, on these facts, that the defenders were bound to compensate the pursuer for the injury so sustained by him, and were consequently liable in damages in this action, assessed the damages at the sum of £21 sterling, and decerned against the defenders for the sum accordingly.

On appeal the Sheriff-Principal ( Trayner) sustained the appeal, recalled the interlocutor appealed against, and assoilzied the defenders from the conclusions of the action. He added a note, in which he said—“The question, however, remains, Was the order a proper one? I cannot say it was not. The pursuer's case is that the engine should have been removed by mechanical appliances, and that the order to remove it by

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hand was an improper order. But the weight of the evidence is against him. The Sheriff-Substitute thinks that the result proves that the order was improper, as the engine was too heavy for the five men employed to lift it; and he regards this view as strengthened by the fact that it took seven men to put it on the cart afterwards. Arguing from results is not always conclusive. It is easy to be wise after the event. That the five men let the engine fall does not prove that they could not lift it, and it might very well take seven men to lift the engine on to a cart while it did not need more than five men to ‘slew’ it round. But the preponderance of evidence, in my opinion, goes to show that the job in which the pursuer was engaged might have been safely performed by five men. It is said, however, that Johnstone having let go his hold of the engine to seek a brick, caused or contributed to the pursuer's injury. I think, in the first place, on a view of the whole evidence, that this is not proved, and, in the second place, if it were proved, I should have difficulty in holding that such an act was ‘negligence’ in the sense of the sub-section 3 of section 1 of the Act The negligence there treated of appears to me to be negligence in reference to the order given.

“On the whole matter I have therefore come to the conclusion that the pursuer has failed to make out his case against the defenders, and that they are entitled to absolvitor.”

The pursuer appealed, and argued—There was clearly proved such unreasonable neglect of ordinary precaution as made the defenders liable under the above Act for the serious injury sustained by the pursuer while conforming to the orders of their foreman. The work was one which was usually performed by mechanical means, and this fact, coupled with the fact that Johnstone had disregarded a definite warning against neglecting those means, raised a presumption that the work was an improper one in the circumstances, which the defenders were bound to rebut. In any view, the risk was a needless one.

The defenders replied—No liability attached to them, inasmuch as the order was proved, on a preponderance of evidence in the proof, to have been a perfectly safe and proper one. The injury was either the result of a pure accident, or else was the result of the pursuer having let go his hold.

At advising—