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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sneddon v. The Mossend Iron Co. [1876] ScotLR 13_563 (23 June 1876) URL: http://www.bailii.org/scot/cases/ScotCS/1876/13SLR0563.html Cite as: [1876] ScotLR 13_563, [1876] SLR 13_563 |
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Page: 563↓
Sheriff of Lanarkshire.
Expenses — Sheriff — Statute 16 and 17 Vict. cap. 80, sec. 3 — 31 and 32 Vict. cap. 100, sec. 72.
A coalmaster held not liable in damages for the death of a miner caused by the fault of some one or other of those appointed to superintend the mine, there being no proof that incompetent men had been appointed, or that the master had failed to supply them with necessary apparatus.
Where a case was brought by appeal from the Sheriff Court, and judgment (reversing that of the Sheriff) given on a point of law not pleaded in the record— held that the appellant was not entitled to expenses in the Sheriff Court.
Observations ( per Lord President) on the duty of Sheriffs under 16 and 17 Vict. cap. 80, sec. 3.
This was an action raised by Robert Sneddon, miner, against the Mossend Iron Company, a company consisting of two partners only, Messrs William and James Neilson, in which he concluded for the sum of £500 as solatium for the loss, injury, and damage sustained by him in consequence of the death of his son John Sneddon, a miner working in a pit near Bellshill in Lanarkshire. The accident by which the death of John Sneddon was caused was the fall of a portion of the roof of the pit, which it was alleged by the pursuer was insufficiently supported and unsafe. The defence stated, in a minute of defence, was—A denial that the falling of the roof or sides, whereby the pursuer's son John Sneddon was killed, was occasioned by culpa on the part of the defenders, or others for whom they are responsible, said fall having arisen either from some latent defect in the roof or sides or materials supporting the same, in respect of which the defenders were not responsible, or from the fault of the deceased himself or of some one or more of his fellow-workmen”; and a statement “that in any event the damages claimed are excessive.” The Sheriff-Substitute ( Clark) allowed a proof, and on 4th August 1875 pronounced the following interlocutor:—
“Having heard parties procurators and made avizandum, Finds that on or about the date libelled, the 11th August 1873, while the pursuer's son, the deceased John Sneddon, miner, was engaged in the employment of the defenders as a miner in their coal-pit known as No. 1 Orbiston pit, and at or near the place known as the causeway top, and at or near a horizontal pivot-wheel at the top of an incline, the roof and sides of the place at which he was working gave way and fell upon his person, so that he was crushed to the ground and killed, by and through the fault of the defenders, or of those for whom they are responsible: Therefore, and for the reasons assigned in the subjoined note, Finds the defenders liable to the pursuer in damages, and assesses the same at the sum of Two hundred pounds sterling, and decerns against the defenders for said sum accordingly: Finds the defenders liable to the pursuers in expenses.”
On appeal the Sheriff ( Dickson) adhered to the judgment, but reduced the damages to £100.
The defenders appealed to the First Division, and argued—In the case of a company like this, where the partners took no personal charge of the workings, they could not be held liable for damages to any of the workmen employed by them unless it were shewn that they were in fault, either (1) in not appointing competent men to superintend the workings, or (2) in not providing proper gearing and appliances for the conduct of the workings. The former was not alleged on record, and the latter was disproved on the evidence. The failure to support the roof was the cause of the accident here, and if there was any fault in the case it lay with the persons charged with that duty, i.e., the oversman, or some one of the deceased's fellow workmen. There was no personal superintendence exercised by the defenders, and therefore no liability.
Argued for the pursuer and respondent—The servant is not, of course, to be protected against the consequences of his own carelessness, but the master is, on the other hand, bound to protect him against accident by taking all reasonable precautions. Now, here there was a bad system of working and an insufficient staff of workmen, either of which is sufficient to make the master responsible if an accident occurs, as this did, in consequence. There was a special necessity here for personal superintendence on the part of the masters, for new workings had been opened up, and in these circumstances it will not do to shift liability to the fellow-workmen of the deceased, who can only be held to be responsible for the carrying out of a system of working; the master is responsible for the adoption of that system.
Authorities— Byrne v. Burn, 16 Dunlop 1026; Bartonshill Company v. Reid, 3 M'Queen 294 (Lord Cranworth's observations); Wright v. Roxburgh, 2 Macph. 748; Wilson v. Merry and Cunninghame, 6 Macph. 84 (especially Lord Chancellor's observations); Leddy v. Gibson, 11 Macph. 304; Howells v. The Landore Siemeris Steel Company, Law Reps., 10 Queen's Bench, 62; Hall v. Johnston, 33 Law Journal, Exchequer, 222; Paterson v. Wallace, 1 M'Queen 748; Weems v. Mathieson, 4 M'Queen 215, and cases quoted there,
At advising—
Page: 564↓
There is a little delicacy in affirming positively that there was any fault in this case at all. We may be of opinion that there was or that there was not; but if there was, it plainly lies among three persons—Munro, the colliery manager, Gillies the oversman, and Downie the roadsman. The special fault alleged is that the roof was not properly supported. These three persons had all that duty laid on them. Of course the duty of supporting the roof will vary with the substance of which the roof is composed. In this case it seems to have been a dangerous one; but there is some delicacy in positively affirming that there was fault in Munro, Gillies, or Downie, for it is quite possible that an action may be raised by the pursuer Sneddon against these three parties, and it would be embarrassing to have to consider on other evidence their liability if we had pronounced them, upon the evidence before us now, to have been in fault. Of course the evidence in this case would not be res judicata against them, but still it would be embarrassing to have pronounced our opinion on the matter of fact. But as I am quite clear that if there was fault, it was fault in not supporting the roof, and that the persons charged with that duty were Munro, Gillies, and Downie, or one or other of them, it is not necessary to determine the question. Take it that the fault was with one or other or all of these parties, the question we have to decide is—Are the defenders liable for that fault? It is not alleged that any of these persons were unfit for their posts. On the contrary, there is evidence to show that they were persons of skill and experience, and that being so it is impossible to distinguish this case from that of Wilson v. Merry & Cunninghame. I am not referring to any expressions or dicta that fell from the noble and learned Lords in deciding that case. I am simply referring to the principle of our own judgment, viz., that where persons, like the partners in this company, not themselves engaged in the work, employ competent persons to do that work, they are not liable for the fault of these persons, even where death results from that fault.
The Mossend Iron Company having only two partners, and carrying on a variety of works, these works were not under the personal superintendence of the partners, but of skilled persons, of such skill and experience as a master is entitled to trust to. It is not very easy to see what more these partners could have done; they
Page: 565↓
The pursuer is the father of the late John Sneddon, miner, a young man of about twenty-three, who was unfortunately killed by a fall of a portion of the roof of the place where he was working in the defenders' coal-pit, and while in their employment. The father claims damages in respect that the death of his son was caused, as he alleges, by fault on the part of the defenders, or those for whom they are responsible. The accident happened on the 11th of August 1873, and this action was raised on the 4th of September 1874.
It does not appear necessary, in the view which we are taking of this case, to pronounce decidedly on the question of fact whether there was fault or not causing the accident in which the pursuer's son met his death. We must assume the fact of fault, because fault is alleged, and we are dealing with the relevancy.
Now, it appears on these averments that the defenders, partners of the Mossend Iron Company, though the employers of the man killed, were not present on the occasion; that they are not alleged to take personal charge of the pit-workings, or even of the furnishing of apparatus, or the direction of the system of working; and it is not alleged that the persons whom they appointed as manager, oversman, and roadsman, were persons unfit or incompetent to discharge the duties committed to them. Such incompetency or unfitness has not been alleged. Under these circumstances, the question which arises in point of law is—Whether, on the alleged facts, the defenders are liable in damages to the pursuer in respect that the death of his son was caused by the fault of one or more of the defenders' servants, including the manager, the oversman, and the roadsman employed by them?
It is of great importance, especially to the operative classes, that the true state of the law on this subject should be known. If the absence of redress in the form of damages tends to make them more cautious, it may be of some service. The protection which the law affords to workmen in a coal-pit, in such a case as this, ought not to be matter of doubt, and ought to be seen clearly to be according to justice.
The law on the subject has in recent years been frequently considered, and the change in the law has been favourable to the employers. The redress afforded to workmen has been restricted and limited. The protection against responsibility on the part of the employers has been extended and strengthened.
In the case of an injury inflicted on a stranger, the master or employer has frequently been held responsible for the fault of his servant. The maxim qui facit per alium facit per se applies, and the master cannot in that case escape from responsibility because the act was not done by his own hand but by the hand of his servant. This has been repeatedly recognised as law. It is so stated by our institutional writers; it has been repeatedly so decided; and it is so laid down authoritatively by Lord Cranworth in the Bartonshill Coal Company v. Reid, and by the Lord Chancellor (Lord Cairns) in the case of Wilson v. Merry & Cunninghame; and Lord Colonsay in the same case says—“I hold it to be quite clear that the liability of a master for injury done by the fault or negligence of his servant falls to be dealt with on different principles where the sufferer is a stranger and where the sufferer is a fellow-servant engaged in the same common employment.”
This distinction must now be considered as quite settled. There is a series of decisions, some of which have been already alluded to, which leave no doubt on the subject. In the case of injury to a workman by the fault of a fellow-workman, even though that fellow-workman occupy the position of an oversman or manager, we must now hold it as settled that the maxim respondeat superior and the maxim qui facit per alium facit per se does not apply, and that the ruling maxim is culpa tenet auctorem. Unless the employer has personally interfered and done the wrong, or has failed in duty by appointing an unfit or incompetent servant—his fault in that case consisting in his careless or injudicious appointment—he is under no responsibility for accidents caused by the fault of any of his servants. I think that in the decision in the case of Wilson v. Merry & Cunninghame in this Court, on 31st May 1867, effect was given to the law established by the course of English decisions, and the judgment of this Court in favour of the employers was affirmed in the House of Lords. I see no reason to alter the opinion which I expressed in that case, with this qualification, that I then attempted, as I had done on previous occasions, to make a distinction and exception in regard to the position of a superior manager with general superintendence, whom I was disposed to regard as the representative of the master rather than as a fellow-workman of the man injured. This distinction was not accepted. The House of Lords in affirming the judgment placed the case on the broader ground, that in a question of damages for injury inflicted by the
Page: 566↓
It is not for me to venture on any speculation in regard to the reasonableness or the expediency of the course and progress of the law on this matter. But, with great respect and diffidence, I must say that I do not feel able to appreciate fully the logical ground for recognising to the extent now enforced the distinction between an employer's liability for a servant who injures a stranger, and his liability for a servant who injures a fellow-servant. So long as the distinction was limited to the case of the fault of one of several workmen engaged in the same employment, at the same time and at the same place, in the same work, I could understand the distinction, as in that matter the one servant might be held to confide in the other, and to run the risk of injury in the common work—such as two men engaged in felling one tree, or working at one wheel, or digging together in one pit. But when the rule releasing employers from liability is extended to the case of a manager who has charge of the work, and has authority given him over the men, and who represents the master in the exercise of that authority, I find great difficulty in understanding the distinction. If an employer keeps away from the works, appointing a manager of ordinary competence, and leaving all to him, then he, the master, is not responsible at all for any injury done to workmen in his employment, even though by the fault of his manager; and yet he would still be responsible for the act of that manager, or indeed of one of his inferior servants, if an injury were inflicted on a stranger. The case of injury to a stranger was considered by the House of Lords, and specially by Lord Cairns, in deciding this same case of Wilson v. Merry & Cunninghame, and this distinction was recognised. Therefore, in now applying the law we must apply it as involving to the full extent that distinction. It does not commend itself to my mind. But that must be my own fault. Either the recognition of the manager as the employer's representative, for whom the employer should be responsible, or the enforcement of the rule culpa tenet auctorem in all cases, whether the case of a stranger or the case of a workman, would in my view be more consonant to sound reason than the present state of the law turning upon this distinction.
However, I concur in holding that the law has been settled as Lord Cairns explains it, and I cannot do otherwise than concur in applying it in this case.
Pearson, for the appellant, having moved for expenses, both in the Inferior Court and in this Court,—
The
Page: 567↓
The following interlocutor was pronounced:—
“Recal the interlocutors of the Sheriff-Substitute and the Sheriff, dated respectively the 4th August and 31st December 1875: Find, in point of fact, (1) that on or about the 11th August 1873, while the pursuer's (respondent's) son, the deceased John Sneddon, miner, was engaged in the employment of the defenders (appellants) as a miner in their coal-pit known as No. 1 Orbiston pit, and at or near the place known as the cause-way-top, and at or near a horizontal pivot-wheel at the top of an incline, the roof and sides of the place at which he was working gave way and fell upon his person, so that he was crushed to the ground and killed. (2) that the death of the said John Sneddon was caused by the support of the roof having proved insufficient; (3) that the defenders took no personal superintendence of the mining operations in the said pit, but devolved these entirely on James Munro as colliery manager, and his subordinates; (4) that the duty of providing for the support of the roof lay on the said manager, and John Gillies as oversman, and William Downie as roadsman; and (5) that these parties were experienced and skilful persons, quite competent to the discharge of the duties committed to them, and were furnished by the defenders with all the requisite materials to enable them to discharge their duties: Find in law, that if the roof fell through the fault of the said James Munro, John Gillies, and William Downie, or any one or more of them, the defenders are not answerable for such fault: Therefore assoilzie the defenders from the conclusions of the summons, and decern: Find no expenses due to or by either party in the Inferior Court, but find the appellants entitled to expenses in this Court; allow an account thereof to be given in, and remit the same when lodged to the Auditor to tax and report.”
Counsel for Pursuer— Fraser— J. C. Lorimer. Agent— P. H. Cameron, S.S.C.
Counsel for Defenders— Dean of Faculty (Watson)— Pearson. Agent— John Gill, Solicitor.
