Gallagher v Balfour, Beatty & Company
| Jurisdiction | Scotland |
| Judgment Date | 07 June 1951 |
| Date | 07 June 1951 |
| Docket Number | No. 73. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Guthrie and a Jury.
NegligenceMaster and ServantLiability of employer to servantFaulty system of workingFault of omissionProof of negligenceCommon practice in like circumstancesPrecaution which it would be folly to neglect to provide.
A labourer, who had been injured by a fall of rock while engaged in a tunnelling operation, brought an action of damages against his employers, alleging that the accident was due to the fault of the defenders in failing to provide a proper system of inspection and testing of the roof of the tunnel. The case was sent for trial by jury. At the trial the only evidence of general practice led on behalf of the pursuer related to the practice in coal mines, but evidence was led by the defenders that their system of inspection and testing was in conformity with the common practice in tunnelling schemes. The jury returned a verdict for the pursuer and awarded damages.
In a motion for a new trial the defenders contended (1) that the verdict was contrary to the evidence, no negligence on their part having been established; and (2) that the award of damages was excessive. In answer to the defenders' first contention, it was maintained for the pursuer that, even assuming that the defenders had proved that their system of inspection and testing conformed to the usual practice of other employers in like circumstances, it was nevertheless open to the jury to take the view that the defenders had been negligent in failing to take additional precautions for the protection of their workmen.
In granting a new trial on the ground that the award of damages was excessive, the Court discussed the dictum of Lord President Dunedin in Morton v. William Dixon, Limited,1909 S. C. 807, at p. 809, and its application in recent decisions.
Anthony Gallagher, a labourer, brought an action against Balfour, Beatty & Company, Limited, in which he claimed 4000 as damages for injuries to his right hand sustained through rock falling from the roof of a tunnel in which he was working as an employee of the defenders.
The case was tried before Lord Guthrie and a jury on 21st and 22nd November 1950. The following summary of the relevant evidence is taken from the opinion of the Lord President:"The evidence is in many respects very inconclusive and unsatisfactory. Neither the exact place of the accident nor the extent of the fall from the roof is clearly established. I am satisfied that the fall which injured the pursuer was confined to one or two pieces of stone of no great size, and did not consist, as one witness maintained, of four barrowfuls of rock weighing about half a ton; but the jury may have taken a different view. I should be prepared to hold that the accident took place some 300 feet back from the working face and not 90 feet as the pursuer asserted, but that is only my conclusion on the evidence. For the pursuer the only evidence of general practice was that of a mining engineer who spoke to the application of the Coal Mines Regulations to coal mines and who admitted that he had no experience of tunnels of the type in question, but thought that the Coal Mines Regulations should apply to them. For the defenders the only evidence of general practice was that of their agent Mr Jones who has had long practical experience of tunnelling in Canada, Italy and in various Scottish schemes, mainly, I gather, in the defenders' employment. I have no doubt that the evidence of Mr Jones in describing the precautions actually adopted by the defenders, and in asserting that he had never known or heard of other or greater precautions being taken, is well founded, but the jury was doubtless entitled to take a different view, and to rule practice out of the case. The position is further complicated by evidence that quite near the point where the accident must have taken place there was a fault which had subsequently to be arched over, and where the roof was undoubtedly insecure for at least some distance; and there was a suggestion, to put it no higher, that the defenders knew or ought to have known that, particularly after blasting, this section of the roof should have been specially examined."
The jury found in favour of the pursuer and assessed the damages at 2000.
The defenders enrolled a motion for a new trial, which was heard before the First Division (with Lord Guthrie) on 17th and 18th May 1951.
At advising on 7th June 1951,
LORD PRESIDENT (Cooper).The pursuer was employed by the defenders as a labourer in the construction of a tunnel on the Loch Sloy Hydro-electric Scheme. Owing to the fall from the roof of a stone or stones, he lost the little finger of his right hand and suffered an impairment of his gripping power. In a common law action at his instance against his employers a jury has awarded as damages the sum of 2000. This verdict is now attacked on the double ground that it is contrary to the evidence and that the damages are excessive.
The case made on record is one of omission to take proper safety precautions, the critical averment being that it is usual and necessary that inspections of the tunnel roof should be made before each shift, or at least after every blast at the face, and that these inspections should be accompanied by tests with the aid of a long-shafted hammer or other like implement. The legal foundation for this case must be found in Lord Dunedin's well-known pronouncement in Morton v. Dixon.3
[After the summary of evidence quoted above, his Lordship proceeded]
The basis of the general verdict which was returned is of course inscrutable; but, taking the evidence as it came out, it is possible that the jury may have taken the view that the roof fall was a large one, that it was associated with the defective section of roof and with the blasting which was taking place not far off, and that, irrespective of general practice altogether and irrespective of the defenders' general duties in relation to the safety of the tunnel as a whole, the special circumstances of the time and place combined to make further precautions so obvious that their neglect inferred clear fault on the part of the defenders.
Upon...
To continue reading
Request your trial
-
Simmons v Swan Brothers Ltd and Forth-Ryco Ltd and Marriott International Services Ltd 1986 Civil Jur. No. 123
...Co. Ltd.UNK [1956] 1 All ER 385 General Cleaning Contractors Ltd. v ChristmasELR [1953] AC 180 Gallager v Balfore, Beattic & Co. Ltd.SC [1951] SC 712 Wilson & Clyde Coal Co. Ltd. v EnglishELR [1938] AC 57 Smith v Vange ScaffoldingWLR [1970] 1 WLR 733 Olsen v Lorry and Gravesend Aviation Ltd......
- Tennant v Direct Line Insurance Plc
-
Bonnington Castings Ltd v Wardlaw
...v. Magistrates of EdinburghSC, 1953 S. C. 34, Lord President Cooper at p. 41. 4 1909 S. C. 807. 5 Gallagher v. Balfour, BeattySC & Co., 1951 S. C. 712, Lord President Cooper at p. 6 1 Edw. VIII and 1 Geo. VI, cap. 67. 7 Ebbs v. Whitson & Co.ELR, [1952] 2 Q. B. 877;Brown and Ganley v. Joplin......
-
Brown v Rolls Royce Ltd
...Reference was made to Carroll v. Andrew Barclay & SonsSCSC, 1947 S. C. 411, 1948 S. C. (H. L.) 100;Gallagher v. Balfour, Beatty & Co.SC, 1951 S. C. 712; Paris v. Stepney Borough CouncilELR, [1951] A. C. 367; Morris v. West Hartlepool Steam Navigation Co. Ltd.ELR, [1956] A. C. 3 Wardlaw v. B......