Scottish Court of Session Decisions

On 12th July 1894 James Davies or Davison was engaged in the employment of D. & W. Henderson & Company, engineers and shipbuilders, Meadowside, Partick, as a red—leader in connection with work on the “Behera,” a vessel then lying in the Govan Dock undergoing repairs. The scaffolding on which the red-leaders worked had been put up under the superintendence of George Phillips, the foreman carpenter in the employment of D. & W. Henderson & Company. It was supported by poles slung in chains over the ship's side. The pole at the stem quarter of the vessel was about 37 feet long, the thicker end of about 11 inches in circumference being pressed against the ship's side, and the smaller end of about 3 1 2 inches in circumference against the side of the dry dock. The length of the staging was about 16 feet, and the three or four planks which composed it were all fastened to the pole between the ship's side and the chain from the deck which supported the pole. At eight o'clock on the morning of the 12th July five red-leaders were working on the staging in question. Davison appeared and stepped on to the staging for the purpose of proceeding with his work. The effect of his additional weight was to cause the pole to dip at the end next the ship and to tilt up 20 or 22 inches at the other end. The result of this was that the staging received a violent shake, and the deceased fell therefrom into the dock, a distance of 10 feet, and received injuries from which he died on 16th August.

His mother, who was a widow, raised this action in the Sheriff Court at Glasgow, against D. & W. Henderson & Company, for payment of £200 as damages for the death of her son.

The pursuer pleaded, inter alia—“(1) The death of the said James Davison having been the result of the injuries sustained by him through the fall of the staging as condescended on; and the same having been defective and improperly constructed by the defenders, or those for whom they are responsible, and the pursuer having, through said death, sustained loss and injury to the extent of the sum sued for, decree should be pronounced in terms of the prayer of the petition, with expenses. … (2) The fall of the said James Davison having resulted from the defective condition of the staging as condescended on, the defenders are, in terms of the Employers Liability Act, 1880, liable to the pursuer for the damage sustained by the death of the said James Davison resulting from said fall, and decree should therefore be pronounced in terms of the prayer of the petition, with expenses.”

The defenders pleaded, inter alia—“(1) The pursuer's statements are irrelevant. (2) The death of the said James Davison not having been caused through the fault of the defenders or of anyone for whom they are responsible, they should be assoilzied, with expenses. (3) The death of the said James Davison having been the result of a pure misadventure, defenders should be assoilzied with expenses.”

A proof was led which brought out the above facts. Conflicting evidence was led as to the distance from the ship's side at which the chain hanging from the deck was fastened to the pole on which the staging was erected. The other red-leaders said that judging by the eye it would be about 5 feet from the ship's side. The carpenters who erected the staging testified that it would be about 4 feet. Witnesses for the defenders admitted that, if the chain was fastened at 5 feet from the ship's side, there might be danger from the tendency of the pole to tilt. The pole which had tilted up had not been preserved by the defenders, and had disappeared. Evidence was led by the defenders to show that it was a usual practice to erect staging for red—leaders to work upon in the same manner as had been done in the present case, provided the chain from the deck was fastened to the pole between 3 and 4 feet from the ship's side. Some witnesses for the pursuer averred that, in order to have made the staging quite safe, either the end of the pole on which it rested should have been fastened to the deck side, or a rope preventer should have been attached to the end nearest the ship's side to keep it from drooping.

On 24th January 1895 the Sheriff-Substitute ( Spens) pronounced the following interlocutor :—“Finds that the deceased James Davison, the son of pursuer, was on 12th July 1894 in the employment of defenders, and was on that day engaged as a red—leader in connection with work on the “Behera,” a vessel then lying in the Govan Dock undergoing repairs: Finds that about eight o'clock on the morning of said day the said deceased went upon the staging for the purpose of proceeding with his work as a red-leader, and the effect of his going on the staging added to the weight thereon, made the pole which supported the scaffolding, the larger end of which rested against the vessel, and the smaller end rested against the dock side, to tilt up 20 to 22 inches : Finds the effect of this was to give the staging on which the said deceased was a violent shake, in consequence of which he lost his footing, and fell to the ground, sustaining fatal injuries, to which admittedly he succumbed on 16th August thereafter: Finds said staging was put up under the superintendence of the foreman carpenter in the employment of defenders, the witness Phillips: Finds, under reference to note, negligence in the construction of the staging is not proved : Therefore sustains the defences, and assoilzies defenders, and decerns: Finds pursuer liable in expenses, and decerns, &c.

“ Note.—[After examining the evidence]— … All these witnesses concur in saying that this method of construction was their method of construction, and, as I have already said, no witness examined is able to

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point to an accident having happened through the pole having shifted in the way which it did in this case. The quotation from Chalmers' evidence, the evidence of Phillips himself and the other foremen carpenters, goes at least to show this—that, if the construction was in point of fact faulty and unsafe, at the very highest it was merely error of judgment. There is no theory of saving trouble or expense. The method adopted was the method which experience had sanctioned, and, if error of judgment there was in the circumstances detailed, that cannot in all fairness be described as negligence. Accordingly, it seems to me that I would be going beyond the existing lines of authority to affirm in this case that personal negligence has been proved against George Phillips. There will therefore be decree of absolvitor.”

The pursuer reclaimed, and argued—The defence that the usual practice was followed here failed, because in the present case it must be held to be proved that the chain from the deck was fastened to the pole at least 5 feet from the vessel's side, otherwise the tilting of the stage was unaccountable. If an accident is proved by the pursuer to have occurred, and it was clear that it was due to some defect in construction, there was no onus on the pursuer to specify the defect. But here a reasonable explanation of the defect had been proved by the pursuer, namely, the fact that the pole was slung too near the centre of balance, and was not tied at either end to prevent tilting up —Fraser v. Fraser, June 6, 1882, 9 R. 896; Walker v. Olsen, June 15, 1882, 9 R. 946.

Argued for defenders—Pursuer had failed to make out his case. No fault or defect had been proved in the staging or machinery. The evidence showed that the staging had been erected in the ordinary way. The pursuer had failed to show that the accident was caused by reason of anything for which his employers were responsible. The defenders should be assoilzied. —Macfarlane v. Thompson, December 6, 1884, 12 R. 232.

At advising—