Scottish Court of Session Decisions

William Weir, cooper, near Fort William, sued the Lochaber District Committee of the Inverness County Council, and Neil Chisholm, their road contractor, for damages for personal injury sustained by him on 29th January 1891.

He averred that in passing a heap of stones which Chisholm's servant was breaking for road-metal he was struck by a splinter of stone, which destroyed the sight of his right eye. “The said accident was caused through the fault of the defenders. They were in fault in breaking stones at the place in question. It is a narrow strip of ground lying on the south side of said highway, and on the north side of the boundary wall of the Ben Nevis Distillery, between its main or cart entrance and the ice house. This strip of ground runs east and west, and is only 8 feet broad at the east end, and 7 feet 6 inches at the west end. It adjoins, and is in no way separated from the highway. Chips and splinters which flew off as the stones were being broken made the operation of breaking extremely dangerous to persons using the highway, which at this place is much used. The operation was attended with special danger at this place, because the stones were not the ordinary freestone which is usually broken up and spread upon roads, but were of peculiarly hard water-worn granite and whinstone, which is broken with difficulty, and is peculiarly liable to fly off in chips. Further, there was special danger from the proximity of the wall to the north, as the chips in flying off sometimes struck the wall and rebounded with great force at higher elevations than in their first flight, rising to the height of the eyes of grown-up people passing along, and even higher. These peculiar dangers were unknown to the pursuer, but were well known to the defenders. It was a duty incumbent upon the defenders accordingly to have obviated these dangers by selecting a site for breaking the stones at a safe distance from the highway, or at least by putting up a hoarding or some protection for the public. As matter of fact they took none of these precautions, nor any precautions whatever, and in consequence the accident in question was occasioned. The explanations in answer are denied. The danger of the practice of breaking stones close to the highway is now generally recognised, and in many districts in Scotland it has for the sake of safety been discontinued. The place above mentioned was selected by the defender Chisholm with the knowledge and consent of the other defenders, whose surveyor and other officials weekly inspected the road and the metal broken by Chisholm, and saw the operation of breaking it performed there, and yet made no objection, as they might have done and ought to have done, to its being broken there. If they had objected, Chisholm would have been bound to give effect to their objection under his contract with them.”