Scottish Court of Session Decisions

Robert Kettlewell, glazier, raised this action in the Sheriff Court of Lanarkshire at Glasgow against R. L. Paterson & Company, glaziers there, concluding for payment of £230, or such other sum as might be found due to him under the Employers Liability Act, as compensation for personal injury in respect of an accident which befel him while in the employment of the defenders.

He averred that he was in the defenders' employment in October 1884, and that at that time they were employed in executing glazier-work in connection with the erection of a goods station for the Glasgow and South-Western Railway Company at Glasgow, that several men were engaged at the glazier-work, and that the scaffolding and all the arrangements connected with it were under the supervision of the defenders and of their foreman David Ronald. He further averred—“(Cond. 3) A scaffold was erected in said station by the contractors or joiners for the use of painters; said scaffold was erected about 30 feet from the ground, and close to the roof of said station. On Friday 31st October 1884, and about three o'clock in the afternoon, the defenders' said foreman ordered defenders' workmen to mount said scaffold and proceed to glaze the roof of said station. The pursuer was the first to mount said scaffold, and while he and a fellow-workman were passing along the same it suddenly and without any warning gave way under them, and the pursuer was precipitated to the ground, falling on his left side. The pursuer was very seriously injured, one or more of the bones of his left foot being fractured, his left leg swollen and bruised, and his left side and both arms partially paralysed. (Cond. 4) The injuries sustained by the pursuer were caused by the negligence of the defenders, or of a person in their employment, and for whom they are responsible, in neglecting to superintend the erection of said scaffold, or to see that it was properly tested before allowing their workmen to proceed upon it. It is believed and averred that the material used in the construction of said scaffold was insufficient for the purpose, and had been condemned as unfit for flooring or sarking. (Cond. 5) In proceeding upon said scaffold the pursuer was acting under the orders of defenders' said foreman, to whose orders he was bound to conform, and in conforming to which he sustained the injuries above mentioned.”

The defenders denied that Ronald was their foreman, or entitled to take control of the work or give directions to the men, and averred that he was a fellow-workman of the pursuer, and employed in manual labour. They stated that they had supplied a scaffolding which was sufficient, but that the pursuer instead of being on it. was, when the accident occurred, on the joiners' scaffolding, which he was using as more convenient.

The defenders pleaded, inter alia—“(4) The pursuer having been injured through no fault or negligence of the defenders, or of a person in their service for whom they are responsible, they should be assoilzied with costs. (5) The said David Ronald not being defenders' foreman, but a fellow-workman of pursuer's, defenders should be assoilzied with costs.”

From the proof it appeared that the pursuer and Ronald and two other men in the defenders'

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employment were employed in removing putty from the inside of the frames in the glass-roof. Their own scaffolding, consisting of certain planks placed on the tie-rods, was about 9 feet below the roof, and they were using, as is common in the trade, a knife on the end of a stick as their means of removing the putty. They used their own planks on the day before the accident, and on part of that day itself. The painters, however, had a scaffolding for themselves placed by the joiner nearer the roof, the use of which scaffolding would enable the glaziers if they used it to do the work without placing the knife on the stick. Their work was done in advance of that of the painters. Ronald was the oldest of the glaziers, and represented the defenders in the absence of R. L. Paterson, sole partner, and he had a slightly higher pay than the rest. He told his men, including the pursuer, to use the painters' scaffolding as more convenient, in doing which he acted on the suggestion of the joiner who erected it. It was supported by across “needle” of wood between the tie-rods, and after the pursuer and one of the other glaziers had used it about an hour the “needle” broke, and the pursuer fell and received severe injuries.

On 26th October 1885 the Sheriff-Substitute ( Spens) pronounced this interlocutor:—“Finds the pursuer was on the 31st October 1884 in the employment of defenders, and was on that day seriously injured by the plank of a scaffold, which had been put up on that morning for painters, giving way, pursuer having gone upon said scaffold along with another workman of defenders, and having been precipitated violently to the ground in consequence of said plank breaking: Finds, under reference to note, that no fault is proved against the defenders, nor anyone for whom they are responsible, sustains accordingly the defences, and assoilzies defenders, &c.

“ Note.—It cannot be argued that Ronald was in any sense a foreman in the sense of the 2d sub-section of the 1st section of the Employers Liability Act, for he, like the pursuer, was simply a journeyman glazier, equally working with his hands, but it is said that this is a case where the 3d sub-section is applicable. Ronald, it is said, was a person to whose orders the pursuer was bound to conform, and did conform, with the result that the accident in question was caused to pursuer, and it is said this happened through Ronald's negligence in not testing the scaffold. Ronald was apparently paid some 5s. a-week more than the other glaziers, and he had unquestionably been much longer with defenders. He undoubtedly took the lead, and in the absence of the sole partner of defenders' firm it was to him that the inspector of works at the railway station communicated anything that had to be said as to the job. The men also, I believe, regarded him as the proper person to give orders in the absence of the master himself. Whether, however, Ronald was a person for whom the masters were responsible in the sense of the 3d sub-section seems to me a question of some difficulty, and in the view which I take it is not necessary that I should decide it. Having reference to the evidence led by pursuer, I do not think any liability was proved in the light of that evidence, and on the assumption that Ronald ordered the pursuer to work on the scaffold, which I do not think is proved. The pursuer's case on the evidence led for him simply amounted to this, that Ronald assumed without inquiry that the scaffold put up by a foreman joiner for the painters would be sufficient for the glaziers. He was entitled to assume that a foreman joiner was better qualified to judge of the safety of the scaffold than a journeyman glazier, and I could not have held that there was negligence on the part of Ronald in not personally testing this scaffold. The pursuer and his fellow-workmen were every bit as well qualified as Ronald to judge as to the safety of the scaffold, and so far as the master is concerned I think he is protected by the accident being one which happened through a risk incident to the employment.

“The master joiner, however, was adduced by defenders, and his evidence put a somewhat different complexion upon the case. I do not think that it can be held that all he states is proved, but what is accepted of his evidence capable of argument for the pursuer must be taken as qualified with that which is capable of argument for defenders. His statement is to the effect that he came forward to pursuer as well as Ronald, and told him that if they used the scaffold it would be on their own responsibility. He explains that it would have been perfectly safe for the painters, because they would have tied the planks together, and unless the position of certain of the planks had been shifted, the scaffold would have been safe enough. Pursuer denies that he was present when any statement was made by the master joiner as to the painters' scaffold at all, but in this he is contradicted by Ronald. What I think did happen was, that after the statement of the foreman joiner, whatever it was, Ronald suggested that the pursuer and his fellow workman should take advantage of the painters' scaffold, which being much nearer the roof of the station was very much more convenient for the men for the preliminary operations as to glazing the roof. I do not think it is proved that Ronald ordered the men to go on the painters' scaffold. It does not appear that the foreman joiner gave any caution as to the necessity of not shifting the planks or having them tied, and Ronald's story is to the effect that the foreman joiner suggested that the painters' scaffold might be made available for use without hint as to there being danger in the matter.

“On the whole matter (1) I am inclined to hold that it is not proved Ronald was in fault; and (2) that the pursuer and his fellow-workman were quite as well able as Ronald to judge of the sufficiency of the scaffold, the failure to test which is the act of negligence libelled. It may be noted that if the evidence of pursuer's fellow-workman is to be believed, after pursuer and he had been working for some time he got frightened as to the stability of the scaffold, and communicated his apprehensions to pursuer, who seemed to have put them aside, with the result that they worked on till the plank snapped. This evidence seems to furnish argument that the pursuer was working in the face of a known danger, and at all events to strengthen the argument that the accident came about through a known risk incident to the employment.”

The pursuer appealed to the Sheriff, who on 25th March 1886 pronounced this interlocutor:—“Finds that the man Ronald was a servant in

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the employment of the defenders, to whose orders the pursuer and others were at the time of the accident after mentioned bound to conform: Finds that on the said occasion the said Ronald ordered the pursuer and others to go on the upper or painters' scaffold, and that they obeyed him and did so: Finds that while at work on the said scaffold it gave way and broke down, and along with it pursuer was precipitated to the bottom, receiving the injuries complained of: Finds that the cause of the said accident, and the consequent injuries received by the pursuer, were imperfection of the said scaffold and the negligence of the said Ronald in directing the pursuer to go on said scaffold without his having previously ascertained its fitness and sufficiency: Finds the defenders responsible under the 3d sub-section of section 1 of the Employers Liability Act for the negligence fore-said: Therefore recals the interlocutor appealed against: Finds the defender liable in damages to the pursuer: Assesses the same at the sum of one hundred pounds sterling, for which decerns against the defenders in pursuer's favour: Finds the pursuer entitled to expenses, &c.

“ Note.—The real cause of the accident appears to have been the presence of knots in the wooden ‘needle’ which broke, and which knots could easily have been seen by anyone who made a suitable examination. On examining the evidence I am quite clear that the man Ronald was in a position which rendered it imperative on the pursuer and the other workmen to obey any orders he might give. I am also satisfied that he gave the order to the pursuer to go up to the upper scaffold. Indeed he admits this himself, although he afterwards attempts to put another gloss on the matter. It is proved, however, against him as clearly as such a thing could be, and with evidence which I think no common jury would refuse to accept. It may be that Ronald did not in so many words give the order himself. But I have no doubt that he did substantially give the order, or, in other words, he endorsed what was said in his presence as if it had been his own order. These things being so, the next question is whether Ronald was guilty of negligence as under the 3d sub-section of section 1 of the Employers Liability Act. Now, it seems to me that if we are once satisfied that he gave the order, his negligence follows as a matter of course. If he did not know of the danger, he ought to have known of it before giving the order. The pursuer and the others were entitled in obeying that order to take it for granted that Ronald knew what he was about before giving it. For these reasons it seems to me that negligence is proved, and that in terms of the section above quoted the defenders are responsible in the consequences.”

The defenders appealed to the Court of Session, and argued—The position of Ronald was not that of a foreman, as the work was under the personal superintendence of the defenders, who had provided suitable scaffolding for their workmen. If this was not used by them, then those who used the other scaffolding for their own convenience did so at their own risk, and the defenders could not be held liable. Alternatively, even if Ronald was to be held as a foreman from the evidence, there was no negligence on his part such as to involve the defenders in liability.

Replied for the pursuer—The pursuer met his accident while obeying an order of the defenders' foreman, and they were thus liable for the damage he had sustained. There was negligence in the sense of the statute on Ronald's part in not examining the scaffold erected by the joiners before ordering the pnrsuer to mount it. An examination would have discovered its defects, and the defenders were liable for Ronald's negligence in failing to make this examination.

At advising—