Scottish Court of Session Decisions

This was an action of damages (at common law and under the Employers Liability Act 1880) at the instance of Charles Irwin against the Dennystown Forge Company, Glasgow.

The pursuer was a labourer in the defenders' employment at their works. His work was to assist a turner at a lathe used for turning heavy crank-shafts for engines. His duty at the time of the injury in respect of which the action was brought was to screw on to the faceplate of the “chuck-wheel” of the lathe a heavy weight which was used as a compensating weight to balance the weight of the crank-shaft in the lathe. He performed this duty by screwing tightly up with a screw-key the bolt which passed through a hole in the compensating weight and held it fast. While he was doing so the bolt gave way and the weight descended on his hand and caused injuries which resulted in the loss of his thumb. The pursuer alleged that this occurred through a defect in the condition of the machinery—this being that the weight was too heavy for a single bolt, or otherwise that the injury was due to the fault of the turner under whom he was acting.

The defenders denied fault.

The pursuerled the evidence of iron-turners and labourers to show that the iron of which the bolt was made was not of good quality, the defenders, on the other hand, leading evidence of skilled engineers to show that it was of the description known as “Govan BB,” and used for the like purpose in other works. No latent defect in it was proved. The pursuer also led evidence to show that the bolt which gave way was of too light a construction for the work, and not so thick as those used in similar works, and that there ought to have been a weight with two holes in it, and that two bolts should have been used. The defenders led evidence to show that the bolt was of ample weight for the weight placed upon it, according to all their experience and that of other works, and that it might have been expected to carry a much greater weight. It was proved that the lathe was new and a first-class machine, and in good order, and the best in the defenders' works. It appeared that bolts similar to that which broke were sometimes used, not as “balance” bolts, but as “driving” bolts, and that though “balance” bolts were almost never known to break, “driving,” being a much severer strain, caused them to give way. There was no evidence that bolts were in use to be tested after use, and it appeared that the bolt for use was taken from a heap of bolts lying ready for that purpose and used either for “driving” or “balance” bolts. There was evidence that the workmen could at any time order from the smith new bolts if required, and that bolts were sent to the smith to be mended when necessary. After the accident bolts similar to that which broke were taken from the same heap and tested at Lloyds Testing House. They were found to bear an enormously greater strain than that which had been put upon the bolt which gave way.

The Sheriff-Substitute (Lees) pronounced this interlocutor:—“Finds that on 1st May 1884, while the pursuer was engaged in the service of the defenders in screwing a balance-weight tightly against a chuck or face-wheel, the bolt on which the weight was supported broke at the head, and the weight falling on the pursuer's right hand tore the thumb off, and otherwise injured it: Finds that the breakage of the bolt was owing to its insufficiency for the purpose for which it was employed, and that with the exercise of reasonable care this ought to have been known to the defenders: Finds in these circumstances, as matter of law, that the pursuer having been injured through failure on the part of his employers to take adequate precautions for the safe performance of the work in which he was engaged, are liable to him in compensation: Assesses the amount so to be paid at the sum of £50: Decerns against the defenders for payment thereof to the pursuer, with the legal interest thereon from the date hereof till payment: Finds the defenders liable to the pursuer in his expenses, &c.

Note.—The pursuer here was injured through no fault of his own, and I see no room for the defenders' plea that he was guilty of contributory negligence. He had been in their service for about three weeks as a labourer, and the work at which he was engaged when he met with his injury was plainly one of considerable danger. No person in the work seems to have been injured in this way before, but the evidence of several of the witnesses clearly shows that the work was quite understood to be one of considerable danger through the risk of the bolt giving way when the weight was being screwed tight.

It is urged for the defenders that the pursuer cannot succeed unless he show that there was some fault or negligence on the defenders' part. This is quite true; and if it appear that the pursuer received his injuries through circumstances beyond the defenders' control, there can be no claim validly made against them by him. There are some cases, however, where the maxim res ipsa loquitur comes into play, and fault must be presumed from which liability will follow unless the presumption be rebutted. Here, however, the state of matters is worse than this; for it is to be noticed that on the one hand the evidence for the defenders furnishes no explanation and yields no suggestion of how the bolt gave way; while on the other hand the peril to which the defenders exposed their workmen is strongly spoken to by several witnesses. Something, no doubt, was said for the defenders of latent defect

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in the bolt, but an examination of it does not appear to disclose any defect which explains the occurrence and yet might reasonably have escaped the defenders' care. But in truth it rather appears that they took no care. It is further plain, considering the character of the work and the frequency with which the heads came off their bolts, that some scrutiny should have been made as to the condition into which the bolts might have come. It is a matter of familiar knowledge that any heating of the bolts to hammer the neck in any way gradually destroys the fibre of the iron, and renders it more liable to break. And it is further to be noticed that the same bolts were used for driving purposes with all the consequent strain, as well as for affixing the balance-weights to the face-wheel.

The pursuer urges strongly that the system of employing one bolt was in itself a source of danger, seeing that the strain on the bolt is so much greater. On the other hand, considerable evidence of much weight has been adduced for the defenders to show that one bolt is sufficient, and in particular that this bolt was sufficient for the purpose for which it was being used. It seems to me that the fact that it and others had given way afford pretty strong presumption that the bolts of the defenders were a source of danger to men employed as the pursuer was. And it is further to be noticed that as the bolt-head was in a slot, up and down which it could travel unless the weight was tightly screwed up, there was unquestionably a much greater chance of such a bolt giving way than of one which passed through a hole in the face-wheel, and could therefore not move in any direction. Several of the witnesses for the pursuer contend that the slot system, especially with one bolt, is in itself a source of serious and undue danger to the workmen. I am not prepared to go the length of saying that I see any reason to sustain this contention, so far as to hold that the system is open to blame. On the other hand, it is difficult to hold that the system was not one which required the exercise of special care. It has always seemed to me that where there is extra danger there ought to be extra care. And this was awanting here. Taking it as a whole, the question is a jury one. Did the defenders take all such precautions as were proper to avoid the risk of injury to their workmen through the smallness of the bolts that they used, and the method followed in their use? While I give every weight to what is urged for the defenders, it seems to me that there is here sufficient evidence of fault to infer responsibility on the part of the defenders.”

The defenders appealed to the Court of Session, and argued—No fault was proved. The occurrence was an accident which could not have been foreseen or prevented. The evidence of persons of skill was entirely one way as to the quality of the iron, the strain it might have been expected to bear, and the whole arrangements of the defenders. The evidence as to the practice in other works was in their favour. There was no sufficient evidence for the Sheriff's judgment. Where, as in the present case, the question was one not of credibility but of inference from the evidence of witnesses whom the Sheriff did not discredit, the Court were in as good a position to draw that inference as the Sheriff.

The pursuers supported the judgment of the Sheriff, arguing that the bolt might have been used for “driving” and so strained, and that if it had been tested this would have been discovered.

At advising—