Scottish Court of Session Decisions

James Hosie, cabinetmaker's machineman, Dobbie's Loan, Glasgow, raised an action in the Sheriff Court at Glasgow against Fred. M. Walker, Limited, bedroom suite manufacturers, Mathieson Road, Glasgow, concluding for payment of £300 as damages at common law, or alternatively for £249, 12s. under the Employers' Liability Act 1880 (43 and 44 Vict. cap. 42), for personal injuries received while in the defenders' employment.

The pursuer, after stating that he had been in the defenders' employment for some time, and was on the morning of the 25th November 1905 working at an American hand-stripping machine when he was ordered by the foreman, a superintendent in the sense of the Employers' Liability Act, to another machine, made the following averments—“(Cond. 4) At or about 11·30 a.m. on said date the pursuer was ordered by his foreman to resume work at the stripping machine. By means of said machine, which is driven by electricity, planks of wood are planed into the desired shape. The chips of the wood that is being planed collect at the feet of the operator, and if allowed to accumulate render him liable to slip, with danger of his hands going into the knives. Brushes ought to be provided and in readiness to sweep away these chips, but only two brushes were provided by the defenders for the use of fifteen machines, instead of one brush for each machine, as is usual and necessary in such works, and these two brushes, which were inadequate in number and defective in themselves, were rarely to be found by those requiring them. The chips are in use to be cleared away by boys directed by the said foreman. Pursuer observing the unsafe condition of the flooring on account of the large accumulation of chips which render the operator's foothold insecure beside a dangerous machine, asked the said foreman to have the chips cleared away and to send a boy for the purpose, or to provide him with a brush and he would do it himself. The said foreman told him to go to hell and go on with his work. The pursuer in view of said refusal, and thinking, as was the fact, that it was unsafe to his life and limb to continue his work without clearing away the chips, proceeded to make a rough scraper to come in place of the brush, with which the defenders failed or refused to provide him, to aid in the work of clearing away the chips, as was usual and necessary in such circumstances. The said machine was the proper machine to use for the purpose. The pursuer had just started the machine, when the machine, partly owing to the impossibility of securing a firm foothold, ‘kicked’ the wood out of his hands with the result that, in consequence of his insecure foothold, the pursuer was thrown forward and pursuer's left hand fell against the revolving blades of the machine. The blades cut off four of the fingers of the pursuer's left hand. The knives of said machine revolve at great speed in the direction opposite to that in which the plank is being moved. The machine is said to kick when, on account of a notch in or the dampness of the plank, or the clogging of the machine by chips, or from any other cause, the revolving knives fail to cut the plank as desired. In that case the force driving the knives causes the obstructed blade to force the plank in the direction contrary to that in which said plank was proceeding, with the result that it is driven with great speed and force out of the hands of the operator. The knives are then left uncovered and the hands of the operator fall upon them. … (Cond. 5) Said stripping machine is a highly dangerous machine unless it is kept free from chips and the knives are properly fenced and guarded. The said stripping machine was defective in respect that the blades were not protected by an efficient guard. The usual and proper guard is what is called an overhead guard, which effectually prevents the hands of the operator coming in contact with the knives. This is known to the defenders, who are also aware that, owing to the absence of said guard, accidents had occurred at machines of the make of defenders' said stripping machine. Said machine ought to have had a feed-roller to keep the wood flat, but it had no such roller. The absence of such roller made an overhead guard necessary. But the guard the defenders provided was old, antiquated, and defective, not covering the knives at all, and, moreover, permitting the operator's hand to go between the guard and the upright iron back of the machine, where the knives work. Said guard is not, as it ought to be, a guard when the machine is stripping wood. (Cond. 6) The accident to the pursuer was due to the negligence of the defenders, who were bound to take proper precautions for the safety of the pursuer and failed to do so, in respect that—(First) they failed to remove said chips or provide means for the purpose of doing so, as a boy or a brush or other appliance for removing the chips, and insisted on the pursuer going on with said work when they knew it was dangerous for him to do so. (Second) They failed to provide an efficient guard, as required by the Factory Acts and by the Common Law, to protect the operator from injury by the revolving blades of said machine, all as hereinbefore set forth. The defenders are accordingly responsible to the pursuer at Common Law. (Third) The accident was due to the defective system of working in said works. Said system was defective in the particulars detailed in this condescendence, but especially in respect of defective machinery, insufficient plant, and the absence of any provision for the removal of chips, which made the pursuer's work on said machine more than usually dangerous. (Cond. 7) In any event the defenders are responsible to the pursuer under the Employers' Liability Act 1880, section 1, in respect of the defects in ways, works, plant, or machinery already detailed.”

The pursuer pleaded—“(1) The pursuer having been injured through the fault of the defenders, is entitled to compensation from them at common law, or under the said Act.”

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The defenders, inter alia, pleaded—“(1) The pursuer's statements are irrelevant.”

On 14th May 1906 the Sheriff-Substitute ( Fyfe) pronounced the following interlocutor:—“… Sustains defender's first plea quoad all the grounds of action except that set forth in the second count of condescendence 6; quoad hoc allows a proof, and sends the case to the diet roll of 31st May current: Quoad ultra repels the defences.”

Note.—“Under the Employers' Liability Act, pursuer's averment is that the work the foreman ordered him to perform was to plane planks of wood into a desired shape. But his own statement is that this was not what he was doing when he was injured. What he was doing nobody asked him to do. He was making a tool which he intended to use, not for the purpose of planing planks, but for the purpose of sweeping away rubbish, which the foreman had not asked him to do.

Under the Employers' Liability Act the employer is only liable vicariously for injury sustained in the execution of work ordered by a superintendent.

No such case is disclosed here, nor is there any case disclosed of defect in ways, works, plant, or machinery in the sense of the Act.

I do not think a statutory claim is relevantly averred.

As regards the Common Law claim, the first head of alleged negligence is ( a) that the employers failed to provide a brush for removing chips; and ( b) that they insisted on pursuer planing without the chips being removed, which was dangerous. It is clear upon pursuer's own statement that ( b) is not the employers' responsibility; for defenders, who are a limited company, took no personal supervision. As regards ( a) there might be some colourable liability if the failure to provide a brush, and the injury to pursuer, bore to each other the relationship of cause and effect. It does not seem to me that it is relevantly averred that they did. I do not think, therefore, that the first common law ground of liability is relevantly averred.

The third ground of common law liability stated is, I think, obviously irrelevant.

There remains only the second ground — that the machine at which the pursuer was set to work was inefficiently guarded. I have considerable hesitation in holding even this relevant, but there is, perhaps, enough stated to entitle pursuer to inquiry.

I have therefore allowed a proof upon this one matter.”

The pursuer appealed to the Sheriff ( Guthrie), who on 10th July 1906 recalled his Substitute's interlocutor and allowed a proof before answer.

Note.—“Sheriff Fyfe in disallowing proof as to part of this cause has probably been influenced by the doctrine stated by Sheriff Glegg in his Work on Reparation at p. 454, founding on the case of Sutherland v. Monkland Railway Co., 19 D. 1904. I am not sure that that case is entirely the same as this, and some light was thrown upon the subject by the cases under the Workmen's Compensation Act quoted by the appellant. I particularly refer to the dictum of Lord Kinnear in Durham v. Brown Brothers, 1 Fr. at p. 286, ‘that a man does not cease to be in the course of his employment merely because he is not actually engaged in doing what is specially prescribed to him if in the course of his employment an emergency arises and without deserting his employment he does what he thinks necessary for the purpose of advancing the work in which he is engaged in the interest of his master.’ That doctrine is at least sufficient to justify the allowing of a proof before answer; whether it is applicable or not will fall to be decided at the end of the day. Meantime I think the averment is sufficient. I have less hesitation, as a proof has already been allowed as to part of the case by Sheriff Fyfe, and I do not think that there is any advantage in dividing the cause into two parts.”

The pursuer appealed to the Court of Session for jury trial. The defenders took objection to the relevancy.

Argued for the respondents (defenders)—The pursuer's averments were irrelevant. The accident was due to pursuer doing something not his work, and which he had not been ordered to do. It was in fact due to his trespassing—his using the machine for a purpose for which it was not intended. There was accordingly no case under subsection 3 of section 1 of the Employers' Liability Act 1880. If after his protest no brush was provided, he might either have refused to go on with his work or gone on with it, and if he had chosen the latter alternative and had been injured, that would have been a different case. Pursuer did not even aver that what he did was the best or only method of removing the chips. A trespasser could not complain of lack of proper fencing; moreover, a mere general averment that a machine was dangerous and imperfectly fenced did not make a case relevant— Cameron v. Walker, January 15, 1898, 25 R. 449, 35 S.L.R. 347—and further, the accident was not due to the want of fencing, but was due to the pursuer stumbling— Greer v. Turnbull & Company, October 27, 1891, 19 R. 21, 29 S.L.R. 38. The case of Hindle v. Birtwhistle ( cit. infra) had no application. If there was to be inquiry it should be by proof.

Argued for the pursuer (appellant)—The averments were relevant both at Common Law and under the Employers' Liability Act 1880. The mere fact that a workman was not doing his ordinary work at the time of the accident made no difference if he was doing something incidental to it and in the interest, not of himself, but of his master. The machinery was insufficiently fenced both at Common Law and under the Factory and Workshop Act 1878 (41 and 42 Vict. cap. 16), sec. 5 (3), as amended by the Factory and Workshop Act 1891 (54 and 55 Vict. cap. 75), sec. 6, by which “all dangerous parts of the machinery” must be securely fenced; and this obligation was not

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confined to machinery which was dangerous in the ordinary course of working— Hindle v. Birtwhistle, [1897] 1 QB 192; Kelly v. Glebe Sugar Refining Company, June 17, 1893, 20 R. 833, 30 S.L.R. 758. In any case, there were relevant averments under sec. 1 (1) of the Employers' Liability Act 1880 of defects in the “ways,” which were insecure owing to the chips, and in the “plant,” because there were not enough brushes through the fault of the superintendent. The injuries were serious and the case should go to jury trial.

At advising—