Stewart's Executrix v Clyde Navigation Trustees
| Jurisdiction | Scotland |
| Judgment Date | 29 March 1946 |
| Docket Number | No. 33. |
| Date | 29 March 1946 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Sorn.
Negligence—Breach of statutory duty—Contributory negligence—Volenti non fit injuria—Docker injured by crane while unloading cargo—Failure to employ signaller—Docks Regulations, 1934 (S. R. & O. 1934, No. 279), Reg. 43.
The Docks Regulations, 1934, provide:—Reg. 43. "When a cargo is being loaded or unloaded by a fall at a hatchway, a signaller shall be employed. … Provided—(1) That this regulation shall not apply in cases where a barge, lighter or other similar vessel is being loaded or unloaded if the driver of the crane or which working the fall has a clear and unrestricted view of those parts of the hold where work is being carried on. …"
A cargo of granite chips was being unloaded from the hold of a lighter by dockers whose function was to gather the chips into heaps so that they could be lifted by a grab attached to a crane. When work commenced two of the dockers, including one who had been instructed to act as signaller to the craneman, were absent, and the others started work in a part of the hold which was visible to the craneman. After a time one of the dockers moved into a part which was invisible to the craneman, who, however, continued to raise and lower the grab in accordance with signals from men whom he could still see. On the first lowering of the grab into the invisible part of the hold it struck the docker who was working there, and injured him. The proper practice in cases where a signaller was required was to station him on deck near the hatch mouth.
In an action of damages brought by the injured docker against the harbour authority as employers of the craneman, the Lord Ordinary (Sorn) held that the craneman had been negligent both at common law and under Reg. 43, in respect that he had operated the crane in the absence of a specially appointed signaller, but that the docker, having voluntarily accepted the risk, was not entitled to damages.
Held (1) (rev. judgment of Lord Sorn) that the defence of volenti non fit injuria had not been set up, in respect that there was no proof that the docker knew that there was still no signaller, and that, in any event, the mere fact that he had continued at his work was insufficient to establish that he had accepted the risk of working without a signaller, (2) that the docker was not himself in breach of Reg. 43 so as to be guilty of contributory negligence, in respect that Reg. 43 was not addressed to dockers engaged in unloading a cargo but only to their employers and to the persons responsible for working the crane, and (3) that, as the craneman had been guilty of negligence, the pursuer was entitled to damages.
Expenses—Taxation—Scale of taxation—Public authority—Harbour trustees constituted by statute—Award of expenses as between solicitor and client—Public Authorities Protection Act, 1893 (56 and 57 Vict. cap. 61), sec. 1 (b).
Held by Lord Sorn, distinguishing Livingstonia Steamship Co. v. Clyde Navigation Trustees, 1928 S. C. 270, that the Clyde Navigation Trustees were a public authority and, having successfully defended an action of damages based on the negligent operation of a crane which it was their duty to provide, were entitled to expenses taxed as between solicitor and client.
Archibald Stewart brought an action against the Trustees of the Clyde Navigation in which he claimed damages for personal injuries sustained by him through their fault and negligence and breach of statutory duty in connexion with the provision of a crane operated by one of their servants.1
The defenders averred, inter alia:—(Ans. 1) "… Explained that the defenders are a public authority acting under and in terms of the Clyde Navigation (Consolidation) Act, 1858, and the Acts amending the same which are referred to for their terms. They administer thereunder in the public interest the undertaking of the Clyde Navigation Trust which includes a large section of the River Clyde and the harbours and works therein and adjacent thereto. Reference is made to section 76 of the said 1858 Act. They are not a profit earning body. They have power to levy rates on vessels and goods under sections 97 to 104 of said Act, and power to borrow money under section 45 thereof. Under section 63 provision is made for the application of the money so raised. In terms of sections 6 to 8 of the Clyde Navigation (Constitution) Act, 1905, provision is made for the election of the trustees to administer the defenders' undertaking. Moreover the present action is in respect of an alleged neglect or default in the execution of said Acts or of the defenders' public duty or authority, and, accordingly, the defenders are entitled to the benefits conferred by section 1 (b) of the Public Authorities Protection Act, 1893." †
The defenders pleaded, inter alia:—"(3) The accident having been caused or at least materially contributed to by the fault or breach of statutory duty‡ of the pursuer, the defenders should be assoilzied. (4) Separatim, the pursuer having continued to work without a signaller being employed and having thus voluntarily accepted any risk caused by the absence of a signaller, the defenders should be assoilzied." "(7) The defenders being entitled to the benefits of the Public Authorities Protection Act, 1893,
expenses should be awarded to them taxable on the solicitor and client scale."A proof was allowed and led, and the following narrative of the evidence is taken from the opinion of the Lord Ordinary (Sorn):—"In this case the pursuer is a docker in the employment of Messrs P. O'Malley, stevedores, Glasgow, who received an injury on 19th August 1944 while the lighter “Tuscan” was being unloaded at Customs House Quay, Glasgow. A crane belonging to the defenders, the Trustees of the Clyde Navigation, was being used in the unloading, and the pursuer alleges that the accident was due to negligence on the part of the craneman for which the defenders are answerable. The “Tuscan” was lying with her port side to the quay, and the crane on the quay side was opposite or slightly abaft the after end of the hatch which was being unloaded. The craneman from his position was able to see the starboard side of the hatch and the forward side and some part of the bottom, but he could not see the port side or the after part of it. The cargo consisted of granite chips, and, for convenience, I shall describe the process of unloading this kind of cargo as it is normally carried out.
"To begin with, the crane works without any assistance from the stevedores. The loads of chips are taken up by the crane by means of a self-acting grab from such spots in the hold as are within its radius, and this process continues until the level of the chips has sunk near to the skin of the ship with the result that the grab can no longer pick up full loads. At that stage it becomes necessary for trimming to be done, and the dockers go aboard and shovel the chips, especially from the wings, into heaps suitable for the grab to pick up. From the time that the dockers go into the hold the craneman no longer acts independently, but, after swinging the grab over the centre of the hatch and lowering it to within a short distance of the surface of the chips, he waits at that point and looks for a signal from someone on board the ship. Thereafter it is his duty to manoeuvre the grab in obedience to the signals given to him. I shall return later to the question of who should give these signals to the craneman.
"The pursuer's version of what occurred is as follows:—It is said that a gang of dockers consisting of five men, one of whom, John Barrett, had been told off by the travelling foreman for the job of hatchmouthman, had come down to the quay at about 8 a.m., when unloading began, and had waited on the dock during the first stage of the operation. It appears that two of their number, namely Barrett and Smith, had left the quayside for purposes of their own when the moment arrived for the second stage to begin. Notwithstanding their absence the remaining three men, namely the pursuer Stewart, Coffey and Hoey, went down into the hold and began the trimming. They say that, having got down to the hold, Coffey and Hoey went to work at the starboard side forward and that Stewart went over to the port side forward. The case then is that the craneman swung the grab over the centre of the hatch, and, after only a momentary pause and without receiving a signal from anybody, that he swung the jib to port in such a way as to bring the grab, or the chain from which it was suspended, in contact with the port side coamings, as the result of which the grab swung in under the coamings and struck the pursuer, pinning him against the side of the ship. For the defenders, the craneman, Webster, tells quite a different story. His version is that the three men went down as described and that thereafter the work proceeded in the usual method, that is to say, that he swung the grab over the centre of the hatch and moved it upon signals received from one or other of the men in the hatch. He says that it was not the first operation which caused the accident, but that quite a number of lifts had been made and that the men had been down working in the hold and giving signals to him for about 20 minutes before the accident happened. He describes the lift which caused the accident in this way. He says that he put the grab over the centre of the hatch in the usual manner; that one of the men was then working in the port wing and out of his sight; that one of the other two men who were on the starboard side pointed towards the port wing, thus indicating that he should swing the grab to that part of the hold; that he acted upon the signal and moved the jib slowly in that direction; and that the two men on the starboard side followed the grab and guided it with their hands in the desired direction. He says that when the chain reached the...
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