Ritchie v James H. Russell & Company
| Jurisdiction | Scotland |
| Judgment Date | 11 May 1966 |
| Date | 11 May 1966 |
| Docket Number | No. 19. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Thomson.
Negligence—Master and Servant—Breach of statutory duty—Safe working place—Scaffold in process of erection—"Building operation"—Factories Act, 1961 (9 and 10 Eliz. II, cap. 34), sec. 176 (1)—Construction (General Provisions) Regulations, 1961 (S. I. 1961, No. 1580), regs. 2 (1) and 7 (1).
The Factories Act, 1961, by sec. 176 (1) enacts:—"“Building operation” means the construction, structural alteration, repair or maintenance of a building." The Construction (General Provisions) Regulations, 1961, enact, by reg. 2 (1):—"These Regulations apply—(a) to building operations …," and, by reg. 7 (1):—"Sufficient safe means of access … shall … be provided … to and from every place at which any person has at any time to work and every such place shall … be made and kept safe for any person working there."
A workman was injured while engaged in erecting scaffolding in order that a structural alteration could be carried out on a wall. In an action of damages against his employers he averred that the accident was due to their fault at common law and to their breach of reg. 7 (1).
Held (rev. judgment of Lord Thomson) that the pursuer had not relevantly averred a breach of reg. 7 (1), per the Lord President on the ground that the regulation did not apply to the erection of a temporary structure such as a scaffolding, andper Lord Migdale and Lord Cameron on the ground that the erection of the scaffold was not a "building operation," and action so far as laid on breach of the regulation dismissed.
George Ritchie brought an action of damages for personal injuries against his employers, James H. Russell & Company Limited.
The following account of the circumstances as averred by the pursuer is taken from the opinion of the Lord President:—"The material facts for present purposes appear to be as follows:—The defenders had been engaged to make certain structural alterations on the wall of St Raphael's Hospital. For this purpose a scaffolding was required. Two trestles had been placed in front of the wall where the alteration was to be made, and two battens had been placed on top of the two trestles. As this was not high enough for effecting the alterations to be made on the wall, it was intended to place two further trestles on top of the battens. Since the distance between the legs of the two further trestles was about three feet, the battens had to be placed three feet apart. The pursuer climbed up on to these battens and stood there in order to receive and place the two further trestles in position. In the course of performing this latter operation he lost his balance and fell to the ground sustaining injuries."
The pursuer averred:—(Cond. 4) "Further and in any event the accident was caused through the defenders' breach of statutory duty. The said operations upon which the defenders were engaged were building operations to which the Construction (General Provisions) Regulations, 1961 (S. I. 1961, No. 1580), applied. Reference is made to Reg. 2 (1) (a) thereof. Regulation 7 (1) of the said Regulations provides,inter alia, that any place at which any person has at any time to work shall so far as is reasonably practicable be made and kept safe for any person working there. The pursuer had to perform his said task on some form of working platform placed on top of the lower trestles. In terms of the said regulation it was the duty of the defenders to make said place safe for the pursuer so far as was reasonably practicable. In this duty the defenders failed …"
The defenders pleaded, inter alia:—"(1) The pursuer's averments being irrelevant et separatim lacking in specification and insufficient in law to support the conclusions of the summons, the action should be dismissed."
On 14th January 1966, after a Procedure Roll discussion, the Lord Ordinary (Thomson) repelled the defenders' first plea in law and approved an issue and counter-issue.
At advising on 11th May 1966,.—
LORD PRESIDENT (Clyde).—This is an action of damages brought by a workman against his employers following on an accident when he fell off a scaffolding which he and his fellow workmen were engaged in erecting at a building. The action is laid at common law in respect of an alleged failure to provide a safe system, and alternatively, for breach of a statutory duty under regulation 7 (1) of the Construction (General Provisions) Regulations, 196110,which is concerned with the safety of working places.
It is not disputed that the pursuer has made relevant averments of a case at common law, and the sole issue at this stage of the action, both before the Lord Ordinary and before us, was as to the relevancy of the pursuer's statutory case. Upon that matter there would not appear to be any material conflict of fact between the parties, and while the pursuer asked us to hold that his statutory case was a relevant one, as the Lord Ordinary held it to be, the defenders maintained that in the...
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Gary Gallagher V. Kleinwort Benson (trustees) Limited And Others
...facts of the present case were analogous, in counsel's submission, to those in Sumner. Counsel also cited Ritchie v James H. Russell & Co, 1966 SC 158 and Campbell v City of Edinburgh District Council, 1991 SLT 616. In the light of these authorities, counsel submitted that Drysdale had been......