Ronald v Gilmartin
| Jurisdiction | Scotland |
| Judgment Date | 19 February 1935 |
| Date | 19 February 1935 |
| Docket Number | No. 45. |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION.
with three consulted Judges. Sheriff of Lanarkshire.
NegligenceMaster and ServantLiability of master under Employers' Liability Act, 1880Negligence of superintendentForeman of gang of dock labourers assisting in work of gangWhether foreman's principal duty that of superintendenceWhether "ordinarily engaged in manual labour"Employers' Liability Act, 1880 (43 and 44 Vict. cap. 42), secs. 1 (2) and 8.
The Employers' Liability Act, 1880, enacts, by sec. 1: "Where personal injury is caused to a workman (2) by reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him whilst in the exercise of such superintendence " the defence of common employment shall not be open to the employer; and, by sec. 8, that "person who has any superintendence entrusted to him" means a person "whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour."
A dock labourer, who was one of a gang employed by a stevedore to unload a ship, was injured while so employed. The foreman of the gang acted as hatchmouthman, and had a duty to see that cargo was lifted out of the hold, without swinging, by a winch operating through a derrick, and, as part of this duty, to stop the winch, when necessary, by signalling to the winchman. He failed to discharge this duty of stopping the winch, with the result that two bales struck the hatch and fell from the derrick and injured the dock labourer.
In an action of damages brought by the dock labourer against the stevedore, it was proved that the foreman's duties, in addition to his foregoing duty as hatchmouthman, were to engage and dismiss the gang; to allocate to them their work, which they carried out under his orders and supervision; and to assist in guiding the load, when it was raised, towards, and arranging it on, a barrow, on which it was wheeled to the quayside. He was paid a higher wage than the rest of the gang.
Held, by a Court of seven judges, (1) that the foreman's principal duty was that of superintendence, and that, since any manual labour he performed was subsidiary to that duty, he could not be regarded as "ordinarily engaged in manual labour" within the meaning of the Employers' Liability Act, 1880; and (2) that, as the accident had happened through the foreman's negligence while in the exercise of his duty of superintendence, the defender was liable in reparation to the pursuer.
Falconer v. M'CabeUNK, (1900) 3 F. 210,overruled.
On 29th October 1933 Andrew Ronald, dock labourer, 89 Plantation Street, Glasgow, brought an action in the Sheriff Court at Glasgow against John Gilmartin, stevedore, 12 Queen's Dock, Glasgow, concluding for payment of 675 as damages in respect of personal injuries sustained by him as the result of an accident while employed by the defender as a member of a gang of dock labourers in the work of unloading the cargo of a steamship at Princes Dock, Glasgow.
The pursuer averred that the accident was caused (1) by defective tackle, viz., a "snotter," provided by the defender; or, alternatively, (2) by an act of negligence on the part of Martin Foy, who was the foreman of the gang of dock labourers to which the pursuer belonged. The pursuer maintained that the defender was liable in reparation to him (1) at common law in respect of the defective tackle supplied by him; or, alternatively, (2) under the Employers' Liability Act, 1880, in respect that Foy was a person to whom superintendence had been entrusted, within the meaning of sections 1 (2) and 8 of the Act of 1880. The pursuer subsequently abandoned his common law claim.
A proof was allowed and led, at which the following facts, as set forth in the interlocutor finally pronounced by the Second Division, were established:"(1) That on 29th June 1933 the pursuer, who is a dock labourer, was engaged as one of a gang in the unloading of the s.s. Meta at Princes Dock, Glasgow; (2) that the vessel was being discharged of her cargo at four hatches; (3) that the gang to which the pursuer belonged was concerned with the discharge at No. 1 hatch, some in the hold, others on deck and on the quay; (4) that with five others the pursuer was working in the hold; (5) that on the morning of said 29th June the defender through his foreman, the witness Angus M'Kinnon, instructed four men, of whom Martin Foy was one, to engage gangs and proceed to the aforesaid several hatches to unload the vessel; (6) that Martin Foy engaged his gang, which consisted of fifteen, or, if he himself be included, sixteen men, and proceeded to his allotted hatch; (7) that Martin Foy was in charge of the gang, of which the pursuer was one, engaged in the discharge of cargo at said hatch; (8) that the duties of the said Martin Foy were as follows:(i.) (a) to engage a gang of men as aforesaid; (b) to allocate to each of them his post; (c) to dismiss a man if that were necessary; (d) to supervise the work of the gang, which as a gang and individually had to obey his orders; (e) at the end of the day to hand each man his pay contained in a poke which had been brought to him from the office and to return to each his insurance book which he had received from him at the beginning of the day; and, further, in the course of the unloading, (ii) (a) to instruct the winchman so that the loads might be lifted without swinging, and, in particular, when a load was swinging to signal the winchman to stop his winch; (b) to give a hand to the two men in charge of the barrow to guide the load towards and arrange it upon the barrow and that the extent to which he may give assistance of this kind is not a matter of any instruction from his employer but is largely in his own discretion; (9) that when a vessel which is being discharged has risen with the tide to the level of the quay, and consequently the cargo instead of being discharged at the mouth of the hatch is being discharged direct on to the quay, a man is specially appointed on the quay to help in the landing of the load, and is known as a lander or hooker; (10) that in point of fact this position had not occurred at the time of the accident after mentioned; (11) that the said Martin Foy was paid 2s. 6d.per day more than the current rate of pay of a dock labourer; (12) that the position which Martin Foy occupied on the day in question is filled not by one of the stevedore's permanent staff but by a workman appointed for the particular job, and that Martin Foy very frequently acted in charge of a gang; (13) that on the said date Martin Foy duly performed the above-mentioned duties with the exception of (i.) (c) which was not necessary, and of (ii.) (a) which was; (14) that when cargo is being drawn from the sides of the ship, as it was at the time of the accident after mentioned, it is the duty of the man in charge at the hatch mouth, in this case Martin Foy, to stop the winch so that the load may be steadied in the square of the hatch under the plumb of the fall and so be lifted without swinging; (15) that during the operation of unloading the s.s. Meta at No. 1 hatch the loads were not being so steadied, with the result that they were ascending with a swing; (16) that consequently one of them caught in the underside of the coamings of said hatch and that the said Martin Foy failed even then to signal to the winchman to stop, with the result that the tackle broke and the load descended striking the pursuer, to his loss, injury, and damage."
The pursuer pleaded, inter alia:"(2) The pursuer having suffered loss, injury, and damage as the result of the fault of the defender, he is entitled to decree as craved.1 (3) Alternatively, the pursuer having suffered loss, injury, and damage as the result of the fault of the defender's foreman, he is entitled to decree as craved under and in terms of the Employers' Liability Act, 1880."
The defender pleaded, inter alia:"(2) The defender having supplied a snotter sufficient and fit for its purpose, and there being no fault or breach of duty on his part to the pursuer, there is no liability upon him at common law, and he should therefore be assoilzied, with expenses. (3) Alternatively, any fault for the injury to the pursuer being fault of the winchman or of the hatchmouthman, and they being fellow servants of the pursuer, there is no liability on the defender therefor, and he should be assoilzied, with expenses. (4) The foreman referred to by the pursuer not being a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour, there is no liability on the defender under section 1 (2) and section 8 of the Employers' Liability Act, 1880. (5) Assuming that the hatch-mouthman is a person for whom the defender is legally liable in terms of the Employers' Liability Act, 1880, there being no fault on his part, the defender should be assoilzied, with expenses."
On 12th March 1934 the Sheriff-substitute (Macdiarmid) found, inter alia, that the accident was caused by the negligence of Foy; but found further, following the case of Falconer v. M'CabeUNK,2 that Foy was not a person to whom superintendence had been entrusted within the meaning of the Employers' Liability Act, 18803; and assoilzied the defender.
The pursuer appealed to the Court of Session, and the case was heard before the Second Division on 4th December 1934, when the case was remitted for hearing before a Court of seven judges.
On 24th and 29th January 1935 the case was heard before the Second Division, together with Lord Blackburn, Lord Morison, and Lord Fleming. Counsel for the defender intimated that it was admitted that the accident was due to the negligence of Foy, and, in the event of damages being found due, they had been agreed at a sum of 300.
LORD JUSTICE-CLERK (Aitchison).On 29th June 1933 the pursuer was injured by accident when in the employment of the defender. He was working as one of a squad of men in...
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