Scottish Court of Session Decisions

Robert Oliphant, carter, Glasgow, brought an action for £1000 against Johnstone & Macleod, stay and corset manufacturers, 72 Clyde Street, Glasgow, in the Sheriff Court of Lanarkshire, at Glasgow.

He averred—“(Cond. 3) At the date of the accident, and for some time prior thereto, the pursuer was in the employment of the Caledonian Railway Company, his duties being to deliver and take delivery of goods for the company. (Cond. 4) On or about 23rd June 1893 he was sent to defenders' place of business to receive certain goods to be taken by him to the company's station at Buchanan Street, Glasgow. (Cond. 5) On arrival at said place of business the pursuer proceeded to the top flat of the building, occupied by the defenders, in order to obtain delivery of the goods which he had been sent for, and in order to reach said top flat he stepped into a hoist used for the conveyance of persons and goods from the ground flat thereto, and which was in charge of an attendant in defenders' employment. (Cond. 6) After obtaining delivery of the goods for which he had been sent, and depositing them in the hoist to be taken to the ground flat, the pursuer stepped into said hoist along with said goods, and the same having been set in motion by the attendant, they began to descend, and went all right until they reached the second flat, when the regulating power seemed to lose its control, and hoist and contents fell to the ground with such terrific speed that on reaching it the pursuer was not only thrown out, but the hoist rebounded to the top flat and remained fixed there. (Cond. 7) In consequence of the rapidity of the descent of said hoist, and the violence with which it came into contact with ground flat, and the manner in which the pursuer was thrown therefrom, he sustained serious injuries. … (Cond. 8) It was the duty of the defenders to see that the hoist was in a safe condition before allowing those using it in connection with their business to do so, and this they negligently failed to do. The hoist was not in a proper state of repair, or at all events was not running as it should have been, and this the defenders knew, or ought to have known, or at anyrate could have discovered had they made a proper examination thereof, or inquiries in regard thereto.

“The pursuer pleaded—“(1) The pursuer having been injured through the fault of the defenders, as within condescended on, he is entitled to reparation from them therefor.”

The defenders pleaded—“(1) The action is irrelevant.”

On 15th November 1893 the Sheriff-Substitute ( Guthrie) pronounced this interlocutor:—“Finds that the pursuer has not stated a relevant case: Therefore dismisses the action, and decerns.” … “ Note.—No specific fault of the defenders has been set forth.”

The pursuer appealed to the Court of Session, and argued—It was impossible in a case of this sort to aver specific fault, and the pursuer was not bound to do so. It was in the same category as injuries received from a railway accident. The maxim resipsa loquitur applied— Macaulay v. Buist & Company, December 9, 1846, 9 D., opinion of Lord Fullarton, p. 245; Fraser v. Fraser, June 6, 1882, 9 R. 896; Walker v. Olsen, June 15, 1882, 9 R. 946.

Argued for the defenders—The Sheriff-Substitute's judgment was right. The defenders were only tenants of this house. The case was distinguished from those quoted by the pursuer. There was no presumption that the accident was caused by a defect in the machinery for which the master was responsible— Macfarlane v. Thompson, December 6, 1884, 2 R. 232.

At advising—