Kemp and Dougall v Darngavil Coal Company Ltd
| Jurisdiction | Scotland |
| Judgment Date | 15 July 1909 |
| Docket Number | No. 196. |
| Date | 15 July 1909 |
| Court | Court of Session |
Lord Guthrie, Lord Kinnear, Lord Pearson, Lord Johnston.
ReparationNegligenceDuty towards injured personLiability of colliery company for injury caused by defect in one of their wagons while used by another companyWorkmen's Compensation Act, 1906 (6 Edw. VII. cap. 58) sec. 6Relief.
A colliery company contracted to deliver coal alongside a ship at Grangemouth. They loaded the coal on wagons hired by them from wagon builders, and conveyed it by the Caledonian Railway Company alongside the ship at Grangemouth Docks. The wagons were then taken charge of by a firm of stevedores, employed by the harbour authorities, for the purpose of loading the ship, and to effect this the wagons were run up a gradient to the tilting cranes, and after being emptied into the ship were returned down a gradient to the Caledonian Railway lines. While one of the wagons was being returned down the gradient a workman employed by the stevedores was injured through a defect in the brake.
The workman having claimed and obtained compensation for the injury from the stevedores, the stevedores brought an action against the colliery company for recovery of the sum so paid.
Held (rev.judgment of Lord Guthrie, Ordinary, diss. Lord Johnston) that, as at the time of the accident the wagon was being used for a purpose outside the contract of the colliery companywhich was merely to deliver alongside ship,the colliery company owed no duty to the injured man, and so were not liable for repayment of the sums recovered by him as compensation; and defenders assoilzied.
Caledonian Railway Co. v. Warwick, Nov. 26, 1897, 25 R. (H. L.) 1, followed.
Elliott v. HallELR, 1885, L. R., 15 Q. B. D., 315, distinguished.
On23d April 1908, Messrs Kemp & Dougall, stevedores, Grangemouth, brought an action against the Darngavil Coal Company, Limited, Glasgow, concluding for declarator that the defenders were bound to free and relieve the pursuers of all liability in respect of a claim for compensation under the Workmen's Compensation Act, 1906, made against the pursuers by Thomas Laing, a coal trimmer, who had been injured while in their employment, and for decree ordaining the defenders to pay to Thomas Laing 1 per week during incapacity, and to repay to the pursuers the sum already paid by them as compensation to Thomas Laing.
The pursuers averred that, in October 1907, the defenders sold a cargo of coals for shipment on the s.s. Prima at Grangemouth. The cargo of coals was loaded at the defenders' pits in wagons the property of the defenders, or otherwise supplied by the defenders, and was conveyed by the Caledonian Railway Company to the docks at Grangemouth, the railway company's contract being merely one of haulage. On arrival at the docks the coal was loaded on the Prima, the loading and stevedoring being performed by the pursuers on the employment of the Caledonian Railway Company, who were the harbour authorities.
The pursuers further averred:On the arrival of trains alongside the ship at Grangemouth the wagons are taken in charge by the pursuers, whose men, either by hand or by means of the capstan, take them one by one to the hoist. Two men are engaged in the process, and a third man called a trimmer is hoisted with the wagon on board ship for the purpose of tipping the coals into the ship's hold. The wagon is then lowered and placed on what is known as the high level. On the morning of 21st October 1907 the pursuers' men were engaged in the process before described, and the trimmer was Thomas Laing, a servant in their employment. After four wagons had been emptied into the ship's hold and lowered to the high level, the said Thomas Laing, in accordance with the usual practice, proceeded to take the four wagons down from the top to the bottom of the high level. In accordance with the usual practice Laing proceeded to walk alongside the wagons which were being taken down to the foot of the level. The wagons are each supplied with a hand brake, and on the journey, Laing, who was walking alongside the second wagon, proceeded to use the brake for the purpose of regulating the speed of the wagons, when the same, instead of acting, suddenly went down to a perpendicular position, throwing Laing off his balance in front of the rear wheel of the wagon, which passed over his body, with the result that both of his legs had to be amputated.
The pursuers also averred that Laing had claimed compensation from them, and that the Sheriff, acting as arbiter, had awarded him 1 per week, which the pursuers had paid up to the date of the raising of this action. They averred that the accident was due to the fault of the defenders, or those for whom they were responsible, in sending out a wagon with the brake in a grossly defective condition, and that the defenders had culpably and negligently failed to make an examination of their plant, or to have the same periodically overhauled and repaired, as was necessary for the safety of men who had the duty of working at the wagons. They also referred to section 6 of the Workmen's Compensation Act, 1906.*
In answer the defenders averred that their contract was to deliver the coals alongside the ship at Grangemouth. They also denied that the accident was due to any fault on their part. They stated that the wagon in question was hired by them from Messrs Pickering & Company, who had agreed to perform all the necessary repairs to the wagons so hired, and to keep them in running order. They also stated that it was the custom and the duty of the Caledonian Railway Company to inspect all wagons conveyed on their lines, and to see that they were in an efficient state of repair. They averred that the wagon was in an efficient state of repair when it left their premises, and that, if the brake were really defective, the defect could easily have been remedied, and must have been obvious to anyone working with the wagon, and should have been observed and remedied by the Caledonian Railway Company or the pursuers, or the injured man himself.
The pursuers pleaded;The accident to the said Thomas Laing having been caused through the fault of the defenders, or of those for whom they are responsible, as condescended on, the pursuers are entitled to decree, in terms of the conclusions of the summons, with expenses.
The defenders pleaded, inter alia;(1) The pursuers' averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed. (3) The said accident not having occurred through any fault on the part of the defenders, they are entitled to be assoilzied. (4) The said accident having been caused, or materially contributed to, by the fault of the said Thomas Laing, and of the pursuers, or of one or other of them, the defenders ought to be assoilzied.
On 28th November 1908 the Lord Ordinary (Guthrie), after a proof, granted decree as craved.*
The defenders reclaimed, and the case was heard on 6th and 7th July 1909.
Argued for the reclaimers;(1) The pursuers' right of relief against the defenders could only arise if the defenders themselves were under liability to make reparation to the injured man. They were not so here, for they owed no duty to the injured man. No duty arose ex dominio. This was not the case of a machine of such a dangerous character that special precautions were required. The only duty that could arise must arise eitherex contractuor by invitation. There was neither invitation nor contract here. The sole contract on the part of the defenders was to deliver the coal alongside the ship. They had nothing whatever to do with what happened afterwards, and had no contract either with the pursuers or their workmen, and in no sense invited the injured man to run this wagon down the gradient from the tilting cranes. The case was ruled by Caledonian Railway Co. v. Warwick,1 which was directly in point.2 The decision
in Elliott v. HallELR1 was not in point, for in that case there was held to be both implied contract and invitation. In any event that decision was overruled by Caledonian Railway Co. v. WarwickELRENR.2 So tooM'Lachlan v. s.s. Peveril Co., LimitedSC,3 depended on invitation, and was in the same category as Heaven v. PenderELR4 and Indermaur v. DamesELRELR.5 (2) In any event the defenders were guilty of no negligence. The duty of inspection lay either on Pickerings, the owners of the wagon, or on the Caledonian Railway Co. or the stevedores, who were using the wagon when the accident occurred.6
Argued for the pursuers and respondents;(1) The Lord Ordinary was right in holding the defenders liable, for when an owner of plant sent out that plant to be used by the servants of other employers he owed these servants the same duty of seeing that the plant was not defective as he owed his own servants.7 These were precisely the circumstances here, and the case fell under the rule in Elliott v. HallELR1 and Heaven v. PenderELR.4 (2) If there was a duty on the defenders there was clearly negligence, for they had not properly inspected their wagons, nor had they efficiently delegated the duty of inspection.8
At advising on 15th July 1909,
Lord Kinnear.This is an action by which a certain firm of stevedores, who have been found liable under the Workmen's Compensation Act to pay compensation to a workman injured in their service, claim relief from the defenders, who are a colliery company, on the ground that the accident was really caused by the defenders' fault or negligence, and therefore that the injured workman would have had a good action against them at common law founded upon fault. The parties are agreed that this plea, which is undoubtedly a perfectly good one under the Workmen's Compensation statute, must be considered in exactly the same way as if we were dealing with it in a direct action by the injured workman himself against the defenders; and therefore the question is whether the pursuers have...
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