Scottish Court of Session Decisions

Lord Young—I am of the same opinion I cannot say I have any criticism to offer on the manner in which this record has been prepared.

The pursuer is a carter, and in the course of his business he was crossing from the south to the north bank of the Clyde by this subway, and the cage on the north bank had begun to ascend, and he avers that “suddenly, unexpectedly, and without any warning the ascending cage gave a violent jerk upwards,” causing him to lose his balance, and flinging him through the canvas which is described, and injuring him severely. Now it is stated in the next article of the condescendence that this accident, which was serious upon the statement of it, was caused through the fault and negligence of the defenders. [ His Lordship then quoted condescendence 6.] Now, when a man is the victim of such an accident as is here said to have occurred I do not think it is incumbent upon him before raising an action to have skilful experts employed to examine the premises, machinery, and method of working, and report upon the condition of matters at the date of the accident, in order to enable him to state on record in what respects the machinery, &c., was defective. I know of no law that lays such an obligation upon him. I do not know that a carter, such as the pursuer, would be in a position to send experts to the works in order to make an examination of the kind. It is incumbent upon him, however, at the trial to satisfy the jury, or the judge if the case is tried without a jury, that what occurred would not have occurred if everything had been in proper order. He must prove to the satisfaction of the tribunal that what happened was attributable to defective machinery, or inexperienced or unskilled working.

In my opinion such a case as is here stated ought to be sent to trial; and it occurs to me that a case such as this, in which the public as well as the pursuer is interested, is a most suitable case to be tried by a jury.

Lord Trayner—The only question before us at present is whether the pursuer has averred a relevant case. I think the case is irrelevant, because of the want of specification. In condescendence 6 three grounds of fault are alleged, and all of them are to my mind much less specific than they should be. The first ground of complaint is, that the cage was of defective construction, that its sides and doors were not strong enough. Nothing could be more general. The pursuer should have specified what the cage should have been, either in view of the use to which it was being put or in view of what is usual in the construction of such cages. If the cage in question is of the construction and strength usual in such cages, then it is difficult to see how the defenders were in fault so far as this ground of action is concerned. The second fault averred is that the hoisting and lowering apparatus was defective and unsafe because it jerked. But the jerking on the occasion libelled might have been purely accidental. The pursuer, in my opinion, should have stated what it was in the condition of the apparatus which caused the jerking. It is said he did not know this. Then how does he know that the jerking was the result of the defenders' fault? The third ground put forward by the pursuer is that the man in charge was not a skilful or experienced man. But that is the pursuer's deduction from the fact that the cage jerked—he has no other ground, or at all events he has averred none, for believing that the man in charge of the hoist was unskilful. The whole averments of fault are as vague and indefinite as they could be, and do not give the defenders fair notice of the case they have to meet. For these reasons I am for sustaining the objection to the relevancy.

Lord Moncreiff—I agree with the majority of your Lordships. I think that the averments here are sufficiently specific to be relevant. We now understand that the accident is said to have happened in this way—While the cage in which the pursuer was being carried was ascending in the framework it unexpectedly stopped with a violent jerk, and as there was nothing strong enough at least to prevent a person in the cage from being thrown against the framework, the pursuer was in consequence of the jerk thrown against the framework and injured severely. If there had been sufficiently strong sides to the cage no accident, it is said, would have happened. Now turning to condescendence 6 we find that three grounds of fault on the defenders' part are set forth—namely, first, the absence of sufficiently strong sides and doors to the cage; secondly, defects in the raising apparatus, causing the cage to ascend with frequent and unexpected jerks; thirdly, the absence of a competent man in charge. In short, the pursuer's case is that either the defenders did not provide suitable apparatus for working this hoist, or if the apparatus was suitable that it was worked carelessly by the person in charge. I do not think that the pursuer is bound to say which of these causes led to the accident. I do not intend to impugn any of the cases that were referred to. But the case here averred is not a case of latent defect, in which some piece of machinery suddenly and without any previous warning goes out of order. According to the pursuer's statement the defenders were well aware of the liability of this cage to jerk. On the whole matter, I think that the pursuer is entitled to have his case sent to trial.