Scottish Court of Session Decisions

Lord Justice-Clerk.—The facts in this case are certainly peculiar. It appears that the pursuer ordered two barrels of paraffin oil, which were conveyed to Fort-William by Macbrayne's steamer. When the barrels were unloaded on the quay at Fort-William the first mistake occurred, and it was a mistake on the part of the defenders. Their carter took up the two barrels of paraffin and with them a third barrel, which did not contain paraffin, but which he delivered as paraffin at the pursuer's premises; and, accordingly, in his book there is a receipt for three barrels of paraffin. That mistake could easily have been checked by the defenders, because the delivery by the carter was not in accordance with the manifest, which was in their hands; and if they had first looked at the manifest they would have seen that what, according to the manifest, was to go to the pursuer was two and not three barrels. But they did nothing. The assistant at the pursuer's store received the three barrels, not knowing what the order was that his master had given, and in the pursuer's absence the three barrels were rolled into the store. The defenders intimated to Mr Macdonald that they had delivered two barrels of paraffin to him and asked him to pay the freight, but only on two barrels. That was the first occasion on which the pursuer's attention seems to have been directed to these barrels. Going to his store he gave a kick to one barrel for the purpose, as he said, of ascertaining that it was full, and he gave a kick to the other to ascertain if it also was full. He had no other purpose in going to his store except to ascertain whether the two barrels were full; and being satisfied as to this he paid the freight for the two barrels. While matters were in that position the third cask was put upon the gauntrees in order that the paraffin which it was supposed to contain might be drawn off. A candle stuck in a bottle was used to light the place, and when the contents were drawn off the volatile motor spirit which it contained caught fire, and there was a violent explosion and the store was practically burned down.

In these circumstances it is not disputed, and cannot be disputed, that the primary blame attached to the defenders, who could have found out perfectly well the mistake that had been made if they had been attending to their business. There is, therefore, a prima facie case against them. But they meet that with the plea that the pursuer himself was to blame, because he ought to have ascertained not only that three barrels had been delivered, but that one of these barrels contained motor spirit. That is a question which depends very much upon circumstances, and I must say that the circumstances here do not suggest that there was anything to lead the pursuer to make such an inquiry. It is said to be a fault that his men who took the barrels into his store did not inform him of the fact that there were three barrels. But can that be held to be contributory negligence, looking to the pursuer's knowledge? He was in the belief that he received two barrels, whereas in point of fact there were three; and that nothing had been delivered to him except paraffin, whereas a barrel of dangerous motor spirit was delivered to him. It is really very much a jury question whether there was contributory negligence; and treating it as a jury question I have come to the conclusion that the Sheriff-substitute was right in holding that such a case had not been made out. The Sheriff's fifth finding is that “if the pursuer had exercised reasonable care to safeguard his own interests, the fact that a barrel of naphtha which he had not ordered had been delivered to him would have been discovered before the occurrence of the fire, and the failure of the pursuer to take such reasonable care directly conduced to the accident which subsequently occurred.” I am unable to agree with that finding; nor am I able to agree with what he says in his note—that but for the pursuer's own neglect of reasonable precautions the misfortune which he sustained would not have happened. I have said already, and I repeat, that most undoubtedly, but for the defenders' own neglect of reasonable precautions, the misfortune would not have occurred. I do not think there is sufficient ground—and I understand your Lordships entertain the same view—for differing from the Sheriff-substitute, who, primarily disposing of the case, was justified in holding that the pursuer had made out his case on the two points in which he found in his favour.

There remains only the question of damages as it arises under head 8 of the pursuer's claim, which Mr Hamilton asked us to sustain. I cannot see how it could possibly be held that the pursuer could competently claim damages in respect that, when the fire occurred, he climbed to the top of a fourteen feet wall for the purpose of trying to put it out with a hose, and fell from an adjoining roof. I cannot say that that was a natural consequence of what took place. It was his own act. I do not go the length of saying that he should have kept his hands in his pockets and sent for the fire brigade, but he ought not to have exposed himself to that risk as there was no call upon him to do so.

Upon the whole matter I am for recalling the Sheriff's interlocutor and reverting to that of the Sheriff-substitute, both as to the findings in fact and as to the damages.

Lord Dundas.—I also think that we ought to revert to the judgment of the Sheriff-substitute. I was at first impressed by the counter view expressed briefly, but precisely, in the Sheriffs interlocutor and note. I thought, and I still think, that if the pursuer and his assistants had kept each other better informed as to what was ordered on the one hand by the pursuer, and what was received at the shop on the other hand, this regrettable accident could hardly have occurred. When three barrels were tendered at the shop the assistant would at once have been placed on his guard and put on his inquiry as to why three and not two barrels arrived. Again when the freight notice was brought for two barrels the pursuer would have been in the position at once to say, “Oh! but we have got three,” and again inquiry would have resulted.

I find it difficult to believe that a business of this size and character could not have been conducted on some such principles as these. But, however this may be, it would be a very different matter to hold that an imperfect system ought to be treated as negligence on the part of the pursuer in a question between him and the defenders, who have admittedly been in fault in the matter. No authority at all importing such a result was cited to us, and I think it would be to take a very harsh view against the trader if we were to hold such an imperfect system to be negligence. Short of so holding, I do not see how the pursuer or his assistants were put upon their inquiry in the matter, or had really any reason to suspect or anticipate the presence of any danger. Three casks were brought to the shop—to the assistant who was ignorant of what the order had been— and the delivery book showed three barrels of paraffin oil. I am not prepared to hold that it was negligence on the part of the assistant to take in the three barrels, conform to the delivery book, and to put them in the store, or even not to report what had happened to his master when he returned.

Then, again, when the freight was asked for on two casks the pursuer knew that he had ordered two. He went down to his store and he says that he satisfied himself, certainly on rather a cursory examination, that he had two barrels. There again I am not prepared to hold that it was contributory negligence on his part to assume that all was right without making special inquiry from his assistants as to what had actually arrived. The stencilling on the bottom of the cask on which the respondents found cannot, I think, be pressed far. I do not think that the fact of the non-observance of the stencilling can be imputed as sufficient ground for contributory negligence. Therefore, although it is a pity that this business should have been conducted in a somewhat loose and unsatisfactory style, I think that falls distinctly short of anything that can be held in law to be contributory negligence on the part of the pursuer.

There was a separate argument—if it be a separate argument—for the defenders, based on the alleged remoteness of the damage. It was said that the defenders' fault, which was admitted, was not the causa proxima of the misfortune, and that the defenders were not liable. I cannot agree with that view. What happened seems to me to have followed as a natural and not improbable result of the defenders' negligence. I see here no case of abnormal or violent interruption of the chain of causation in the facts which followed upon the misdelivery. I therefore think that the Sheriff-substitute was right upon the question of liability.

The damages awarded by him under heads one to seven are accepted by both parties; and as regards the appeal by Mr Hamilton for an award under head eight, I agree that we should not allow anything under that claim. On these grounds I am for recalling the interlocutor of the Sheriff and reverting to that of the Sheriff-substitute.

Lord Salvesen.—I agree on both points. The case is a very interesting one in its facts, because one may say that it could scarcely be anticipated that the misdelivery of a barrel of naphtha should eventually have caused the destruction of the store into which it was put.

But the mistake which the defenders made was a very serious one. They were entrusted for the purpose of carriage with two barrels of paraffin for delivery to one customer and with one barrel of naphtha for delivery to another, and the latter barrel was labelled at the time when it came into their custody with a label to the effect that the contents were highly inflammable, giving off inflammable vapour at a temperature of less than 73 degrees Fahr. In these circumstances one would have thought that very special care would have been taken to see that the goods were not mixed up and that the naphtha was not delivered to a person for whom it was not intended. The goods were properly entered on the manifest, but at the time they arrived the clerk who was in charge did not take the trouble to check them by means of the manifest. For no better reason than that the three barrels were similar and that one was labelled as for the pursuer, all three were assumed to be for him, and not merely so but they were all assumed to have the same contents without any examination having been made of the barrels, although if this had been done the mistake could not have been made. That was a grave mistake, and, prima facie, it is not unreasonable to suppose that an ordinary and natural consequence of the delivery of naphtha to a person who does not know that it is highly inflammable, and is at the same time informed that it is paraffin, might well be to give rise to a fire in the premises of the receiver, as in fact happened.

All that being admitted the only case for the defenders is that the pursuer is disentitled to recover compensation for the loss that he has suffered through their mistake, because he did not take due care to prevent such mistakes occurring. I think that here one must distinguish between obligations arising out of contract and obligations arising out of delict. It may well be that the knowledge of the servant in the former class of case must be imputed to the employer; but it does not seem to me to follow in the least that when you are dealing with a question of negligence the knowledge of the servant is to be imputed to the employer so as to make him guilty of negligence, as he would have been if the knowledge had been actually his.

Here it is perfectly true that, if the servant, who received delivery of these goods as paraffin, had communicated to his employer that he had received three barrels instead of the two, which the employer alone knew he had ordered, the mistake might have been discovered and the accident prevented. But I cannot see how it can be said to be negligence on the part of the pursuer, which shall bar him from an otherwise valid claim, that he did not conduct his business in such a way that mistakes of this kind should always be discovered when made or rectified within a very short time after they were made. If he had knowledge, or reason to believe, that a barrel of highly inflammable material which he had not ordered had been put into his cellar, it certainly would have been negligence on his part if he took no means of protecting his property against the possible consequences of such inflammable material being in his cellar: but it would be stretching the doctrine of contributory negligence to a point that it has never yet reached if we were to hold that, because the pursuer's assistant knew that there were three barrels which were said to contain paraffin and the pursuer knew that he had only ordered two barrels of paraffin, the knowledge of these two persons is to be combined so as to make the pursuer responsible, on the footing that he possessed knowledge that neither he nor his servant actually had. No authority was quoted to us which in the remotest degree supported that proposition, and I am not in favour of so extending the doctrine of contributory negligence.

On the question of damages I agree with your Lordships in the view that it was not a natural or necessary result of the initial negligence of the defenders that the pursuer should suffer injuries by falling off a roof in the way he did. If he had been in the store at the time and had been singed that would have been a totally different thing. But that was not so. He volunteered to try to put out the fire, primarily in his own interests because he was uninsured, but he thereby exposed himself to a risk which he was under no obligation to incur, and which he was not entitled to incur at the expense of the defenders. However meritorious his efforts may have been, the injury which he suffered was not the natural consequence of their negligence.

Lord Guthrie.—I am of the same opinion. The defenders have supported the judgment of the Sheriff on both the grounds relied on by him: first, that the pursuer was guilty of contributory negligence, and second, that what took place was not a consequence which the defenders were bound to anticipate. On the second point I think with your Lordships that there is sufficient sequence of causation to warrant us in holding that what took place was a natural consequence of the defenders' initial fault.

The Sheriff's judgment on the matter of contributory negligence proceeds on the proposition which he thus states:—“In my opinion the pursuer was bound in his own interests to take reasonable care to prevent goods which he had not ordered being accepted by his servants and placed in his store, and I think it would only have been reasonable care on his part to keep his servants informed what goods he had ordered and when he expected to receive them and to require them to inform him of the arrival of goods without undue delay.” In a sense that is, in ordinary circumstances and apart from the accidents which will occur in the best regulated business, an obviously sound proposition, because it is a mere statement of the method according to which business is ordinarily conducted by efficient business people. But the Sheriff uses it in a special sense—namely, that breach of the duty stated by him will, in all circumstances, amount to contributory negligence and bar a claim for damages for admitted or proved negligence. Moreover, the Sheriff states the proposition without referring to the element which introduces very special considerations—namely, that the goods in question were of a dangerous and inflammable nature.

It seems to me the Sheriff rather assumes another question which the circumstances, as I read them, do not raise, and which may be a difficult one, viz., whether a person getting goods known to him not to have been ordered and known to him to be dangerous, and retaining these goods for a lengthened period, without taking any steps either to return them to the person from whom the goods were got or to take such precautions as would prevent the dangerous material from doing injury, might not, in those circumstances, be barred from a claim of damages for admitted or proved negligence. It seems to me that the circumstances of this case do not raise that question, because I have assumed in that question knowledge and want of precaution, which the circumstances here show do not exist.

I am satisfied with the way in which the Sheriff-substitute has dealt with the questions which are truly raised in the case. The result is that I am unable to agree with the fifth finding of the Sheriff. [His Lordship quoted the finding.]