Scottish Court of Session Decisions

Neil M'Nab, painter, 30 Hinshaw Street, Glasgow, brought an action against Robert Fyfe, painter, 61 St George's Road, Glasgow, in the Sheriff Court of Lanarkshire at Glasgow, under the Employers Liability Act 1880, concluding for payment of £300.

The pursuer was a journeyman painter in the employment of the defender, and averred that he was sent by the defender along with some other men to paint certain pillars in New City Road, Glasgow, and that to do so he had to go to the top of a 26-foot ladder.

The pursuer further averred—“(Cond. 2) Defender's foreman, following the usual custom in the trade in similar circumstances, posted another man below at the foot of the ladder to steady it. This was absolutely necessary for the safety of the man above, as the pillar was a round one, and afforded no firm or sufficient grip to the ladder, which required to be kept steady by a man below. (Cond. 3) While pursuer was painting said pillar as aforesaid his foreman ordered away the man at the foot of the ladder and replaced him by a young boy, who was not able to hold the ladder steady, with the result that it slipped from the pillar and fell to the ground, a distance of 26 feet, bringing the pursuer violently to the ground also, and severely injuring him. (Cond. 4) The said foreman or superintendent (whose name is unknown to the pursuer) is a person whose sole or principal duties are those of superintendence, and who is not ordinarily engaged in manual labour, and is also a person whose orders the pursuer and his fellow-labourers were bound to conform to. Said foreman was negligent in removing the man who was steadying the ladder, and replacing him by a young boy, who was manifestly unable to steady such a long and heavy ladder with a painter at the top, and it was in consequence of his negligent orders that the accident to the pursuer occurred. Pursuer was not aware of any alteration having been made, and continued at his work till the accident happened …. (Cond. 7) Pursuer sustained severe and extensive bruising of his right side, which has since totally incapacitated him from work of any kind. He has also sustained a very severe shock to his system, and has since the date of the said accident been under medical treatment, and it is likely that he will be incapacitated for work for a considerable time to come.”

The defender denied the material averments of the pursuer, and pleaded that the action was irrelevant.

The Sheriff-Substitute ( Strachan) allowed a proof.

The pursuer appealed to the Court of Session for jury trial.

In the Single Bills the defender objected to the cause being tried by a jury, upon the ground that the averments of fault on the part of an unknown servant alleged to be a foreman were vague; that the injuries condescended on were trifling, and that in the whole circumstances it was not right that the defender should be subjected to the expense of a jury trial.