Scottish Court of Session Decisions

On 2nd October 1911 Thomas M'Millan, ship's rigger, Whiteinch, brought an action against Barclay, Curie, & Company, Limited, engineers and shipbuilders there, for payment of £500 at common law, or alternatively for £85 odd under the Employers' Liability Act 1880, as damages and solatium for the death of his son, who was fatally injured while at work in the defenders' employment.

The pursuer averred—“(Cond. 2) On or about the 5th day of July 1911, and for some time previous thereto, the said deceased Thomas M'Millan junior was in the employment of the defenders at the construction of a vessel in their shipbuilding yard at Whiteinch. He was engaged as a rivet boy, and on the said 5th July he was working in that capacity on the promenade deck of said vessel. The said deck was composed of teak, and the seams thereof were filled in with pitch, and it was the duty of the deceased to watch the rivetters who were engaged on the boat deck about 8 feet above, and to pick up and throw over the side of the vessel by means of two small sticks used like tongs the red-hot parings of the rivets thrown down by them upon the promenade deck. These red-hot parings were thrown down over the deck in all directions, and it was necessary for the deceased in performing his work to keep a sharp look-out on the rivetters to see that none of the parings fell upon himself, and to watch where they did fall. He had to run quickly from place to place as they fell and pick them up before they set fire to the pitch on the deck or marked the teak wood. While so employed he worked under the orders and supervision of John Graham, a foreman in defenders' employment, whose sole or principal duty was that of superintendence, and who was not ordinarily engaged in manual labour. (Cond. 3) About 11 o'clock a.m. on said 5th July 1911 the pursuer was engaged at the said work; when running to pick up a red-hot paring he slipped on the deck of said vessel, and falling over the side thereof, a distance of 55 feet or thereby, was instantaneously killed. The said deck was in a slippery condition. The pitch had become hard, and rendered footing uncertain, and the teak wood had become slippery in consequence of a rainfall that morning. Teak wood when wet always becomes slippery and uncertain to walk on. At the place where the deceased fell over there was no fencing of any kind at the edge of the deck, and nothing to prevent one who slipped on the deck from going over the side. (Cond. 4) The death of the said deceased Thomas M'Millan junior was due to the fault and negligence of the defenders. It was their duty to take all usual, reasonable, and necessary precautions for the safety of the workmen in their employment. They knew or ought to have known that the hard pitch at the seams of the said deck made the footing uncertain, and that teak wood when wet is especially liable to become slippery. They ought, when they employed a boy like the deceased to work on the said deck, at work which necessitated his running quickly from one part of the deck to another, while taking care to avoid falling particles of red-hot rivets, to have taken precautions against his falling over the side of the deck through a stumble or slip thereon. This precaution was rendered more necessary on account of the height of the said deck from the ground. Such precautions could easily have been taken at the time the said accident happened. The stanchions, through which the rails of the said promenade deck were to be put, were in position, and ropes could easily have been fastened to them in such a way as to prevent any accident. Such a precaution is a reasonable one to take, and is usually taken in similar circumstances. The defenders, however, failed to take that or any other precaution, and left a space of several feet at the edge of the said deck without any fencing or other protection, and the accident to the deceased resulted from this failure. After the accident they erected a wooden fence at the said place. The deceased Thomas M'Millan had not much experience of the effect of heat upon a teak wood deck, and he did not appreciate the danger to which he was exposed. (Cond 5) Alternatively, the said accident was due to the fault of the defenders' superintendent, the said John Graham, for whom the defenders are responsible, in respect that he failed in the duty of superintendence entrusted to him. He was in charge of the work on the day and at the time in question, and it was his duty to take all necessary and reasonable precautions for the safety of the pursuer's said son. He ought to have erected a fence or railing along the side of said ship at the part thereof where the pursuer's said son was working. The said John Graham knew that pursuer's said son was employed on said promenade deck, and that the said teak wood deck became specially slippery after a shower of rain such as had fallen that morning and he also knew that the side of said ship at the part thereof where the pursuer's said son was working was unfenced and unprotected. He knew or ought to have known that the state of the deck constituted a great danger to anyone engaged, as the deceased was, in running quickly from one part to another. He could easily have erected a fence by means of a rope fastened to the iron stanchion which was in position along the edge of the deck. He failed, however, to take this or any other precautions for the safety of pursuer's said son, and this failure caused the said accident.”

The defenders pleaded, inter alia—“(1) The pursuer's statements are irrelevant. (4) The accident not having been due to fault or negligence on the part of the defenders, or of anyone for whom they are responsible, the defenders are not liable in compensation therefor.”

On 13th November 1911 the Sheriff-Substitute

Page: 244↓

( Craigie) allowed a proof before answer.

On the requisition of the pursuer the cause was remitted to the First Division of the Court of Session. He proposed an issue in ordinary form with alternative schedules.

Argued for defenders—(1) The action was irrelevant at common law. At common law an employer had discharged his duty when he had provided a competent staff, sufficient plant, and a safe system of working. In this case the competence of the staff and the sufficiency of the plant were not called in question, and the pursuer's averments did not disclose a defective system. They showed that the danger was occasioned by a casual shower of rain, and that it was of a temporary nature, calling for temporary precautions, which arose in the ordinary course of carrying on the work, and was not due to a defective system. That being so the defenders were not liable— Harper v. James Dunlop & Company, Limited, December 5, 1902, 5 F. 208, 40 S.L.R. 174; Thomson v. Baird & Company, Limited, November 26, 1903, 6 F. 142, 41 S.L.R. 152. Even if the pursuer had averred that there was a duty on the defenders to provide a permanent fence, such an averment would not by itself have been sufficient to make the case relevant at common law unless he had also averred facts and circumstances from which a dangerous system could be inferred— Burns v. Henderson & Company, Limited, June 2, 1905, 7 F. 697, 42 S.L.R. 586; Forsyth v. Ramage & Ferguson, October 25, 1890, 18 R. 21, 28 S.L.R. 26. This he had failed to do. (2) The action was also irrelevant under the Employers' Liability Act, for there was no duty on the defenders or their servants to fence the deck in question.

Argued for pursuer (the Court having called for a reply on the first branch only of the defenders' argument)—(1) The action was relevant at common law. The danger was permanent and not casual. It continued so long as the boy was working on the deck, and the provision of a rail would have been only a reasonable precaution— Wallace v. Culter Paper Mills Company, Limited, June 23, 1892, 19 R. 915, 29 S.L.R. 784; Smith v. Baker & Sons, L.R. [1891], A.C. 325.