Robertson v R B. Cowe & Company
| Jurisdiction | Scotland |
| Judgment Date | 06 November 1969 |
| Date | 06 November 1969 |
| Docket Number | No. 4. |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Lord Leechman.
NegligenceMaster and ServantBreach of statutory dutyFactoryDuty to make working place safeWorkman injured through collapse of scaffoldNo averment or proof of cause of collapseReasonable foreseeabilityRelevancyFactories Act, 1961 (9 and 10 Eliz. II, cap. 34), sec. 29 (1).
ProcessCondescendenceSufficiency of avermentsReliance by Lord Ordinary on fact elicited in evidence but not averred or founded on.
ProcessConduct of proofOmission to crossexamineAction of damages for personal injuriesBreach of statutory dutyPursuer working on scaffoldAverment that scaffold unsafeNo suggestion put to employee who erected scaffold that work so done that scaffold unsafe.
The Factories Act, 1961, enacts by sec. 29 (1), inter alia,that every 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."
In an action of damages against his employers based on sec. 29 (1) a workman averred that he was working on a scaffold provided by them when it collapsed and he was injured. In a proof before answer it was established that the pursuer was working in a normal way, and no specific reason for the collapse was proved. In weighing the evidence the Lord Ordinary relied to some extent on evidence, which emerged as part of the description of the locus, that the scaffold was set on a rough sloping surface. The pursuer had not averred this or attempted to prove that it caused the collapse.
Held (dub. the Lord President) that the pursuer had established a breach of sec. 29 (1), in respect (1) that it was sufficient for him to aver and prove that the scaffold collapsed under him when he was working normally, without establishing the cause of the collapse, and (2) that he was not bound to show that the accident was reasonably foreseeable.
Observations by Lord Guthrie and Lord Migdale on the applicability of the test of reasonable foreseeability to a case based on sec. 29 (1).
Opinion by Lord Guthrie (1) that the Lord Ordinary was not entitled to rely on the evidence as to the nature of the surface on which the scaffold was set; and (2) that it was not essential for counsel for the pursuer to put it in cross-examination to the employee who erected the scaffold that he had done so in such a way that it was unsafe.
David Robertson brought an action of damages against R. B. Cowe & Co. in respect of injuries sustained by him while working in their employment.
The following summary of the facts is taken from the opinion of Lord Migdale:"The pursuer was employed in painting the stern of a fishing boat which had been hauled up on a cradle on the defenders' slipway in Fraserburgh. A trestle carrying the end of a plank on which he was working fell away from the side of the ship, carrying him and the plank with it. He landed on the ground and sustained a fracture of his right ankle. He was awarded 8337. This amount is not now challenged. He originally laid a case at common law, but the Lord Ordinary rejected it and his decision is now accepted. The only claim with which we are concerned is laid on a breach of section 29 (1) of the Factories Act, 1961."
The parties averred, inter alia:(Cond. 3) "The said accident was caused by the fault and negligence of the defenders. It was their duty to provide reasonably safe and sufficient plant for the use of their employees, such as the pursuer, and a reasonably safe system of working. In particular it was their duty to provide staging which was reasonably secure and not likely to fall when put to ordinary use as above condescended on. In these duties the defenders failed and so caused the said accident. They provided dangerous plant for the use of the pursuer. They provided staging which was likely to fall (as in fact happened) when used normally. Reasonably safe and sufficient staging does not fall when used normallyres ipsa loquitur. If the defenders had carried out the said duties incumbent upon them, the said accident would not have occurred. With reference to the defenders' averments in answer it is admitted that certain duties were incumbent on the pursuer. Explained that he performed all of said duties. Reference is made to condescendence 2. Quoad ultra the defenders' averments in answer so far as not coinciding herewith are denied. (Ans. 3) "Admitted that certain duties of reasonable care for the safety of the pursuer were incumbent on the defenders. Explained and averred that they fulfilled all such duties incumbent on them in the circumstances.Quoad ultra denied. The said accident was caused, or in any event materially contributed to, by the fault and negligence of the pursuer. It was his duty to take reasonable care for his own safety. In particular it was his duty not to attempt to paint parts of the ship which could not readily be reached while standing on the said staging, and not to overreach himself. In these duties he failed, and so caused the said accident. He negligently attempted to paint part of the ship which could not readily be reached while standing on the said staging. He negligently overreached himself. Had the pursuer fulfilled the duties incumbent on him, the said accident would not have happened." (Cond. 4) "Further, and in any event, the said accident was caused by the defenders' breach of statutory duty. The said slipway, Fraserburgh, was a yard in which ships or vessels were reconstructed, repaired or refitted. It was thus a factory within the meaning of the Factories Act, 1961 Further, at the material time the defenders were in possession of the said slipway, and regulated and controlled the work which was done there. They were thus the occupiers of the said factory. It was therefore their duty to comply with the provisions of the Factories Act, 1961, and in particular with section 29 (1) thereof. [The subsection was quoted.] In their said statutory duties the defenders failed, and so caused the said accident. The staging was the pursuer's working place, and it was not made and kept safe, in respect that the trestle gave way and fell away as hereinbefore condescended upon. If the defenders had performed the said duties incumbent on them, the said accident would not have occurred." (Ans. 4) "The Factories Act, 1961, is referred to for its terms, beyond which no admission is made. Quoad ultra denied. Explained and averred that the defenders duly fulfilled any statutory duties incumbent on them in the circumstances. The said accident was caused, or in any event materially contributed to, by the fault and negligence of the pursuer, who himself brought about any unsafety in the place at which he was working. Reference is made to answer 3 hereof. There was no reasonably practicable step to make and keep the said staging safe which the defenders did not take."
The pursuer pleaded, inter alia:"(1) The pursuer, having suffered loss, injury and damage through the fault and negligence, et separatim breach of statutory duty, of the defenders, as condescended on, is entitled to reparation from them therefor."
The defenders pleaded, inter alia:"(1) The pursuer's averments being irrelevant and insufficient in law to support the conclusions of the summons, et separatim being lacking in specification, the action should be dismissed."
On 7th February 1969 the Lord Ordinary (Leechman), after a proof before answer, repelled the defenders' pleas in law and awarded damages.
At advising on 6th November 1969,
LORD GUTHRIE.The pursuer, a marine engineer, was in May 1965 temporarily employed by the defenders as a ship's painter. In this action he sues the defenders for damages arising out of an accident in the course of his work on 31st May 1965. He stated two grounds of action on record: first, a case of negligence of the defenders at common law based on the maxim res ipsa loquitur;and second, a case of breach by the defenders of their statutory duty under section 29 (1) of the Factories Act, 1961.1 After a proof before answer the Lord Ordinary rejected the common law case, and his decision on this matter was accepted by counsel for the pursuer in the Inner House. He held the defenders liable for breach of statutory duty, and awarded the pursuer damages of 8337. The defenders reclaimed against his interlocutor and moved for absolvitor, but did not challenge the Lord Ordinary's assessment of damages if they were liable.
On record the pursuer averred that on the day of his accident he was painting a fishing boat, Crystal River, drawn up stem first on the slipway at Fraserburgh. It is agreed that the slipway is a factory within the meaning of the Act. The pursuer stated on record that he had to work on staging belonging to the defenders and erected by them on the port side of the boat. The staging consisted of five trestles each 20 feet high, with a single plank 8 inches wide and 2 inches thick placed between each pair of trestles. The planks were about one foot away from the boat, and about 7 feet below its top rail. The pursuer moved on to the plank running between the trestles nearest the stern of the boat. As he was preparing to begin painting, the trestle nearest the sea gave way and fell away from the boat, causing the pursuer to fall to the ground, when he sustained serious injuries. The pursuer denied averments by the defenders that in order to paint the stern it was necessary, as he knew, to move the trestle nearest to the stern backwards about one foot, and that he attempted to paint the stern of the boat without moving the scaffolding, overreached himself and fell, and in overreaching himself pushed part of the staging away. In condescendence 3, dealing with the defenders' negligence, the pursuer averred that the defenders "provided staging which was likely to fall (as in fact happened) when used normally." In condescendence 4 the averment of fact on which the statutory case is based is in these terms: "The staging was the...
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