Scottish Court of Session Decisions

Jane Sharp, a minor, with consent of her father, raised this action against the Pathhead Spinning

Page: 369↓

Company (Limited), Kirkcaldy, for the sum of £250 as damages in respect of injuries received by her while in their employment. At the time of the accident she was within a few days of being fourteen years of age. The work which she was set to do, which is fully described below, included the cleaning away from the teeth or heckles of a carding-machine the tow which collected thereon. She was doing this (contrary to orders) when the machine was in motion, and the sleeve of her dress was caught in one of the heckles. Her left arm was drawn between the rollers and so badly injured that it had to be amputated a little below the elbow. The ground of action was thus stated in the pursuer's pleas-in-law:—“(2) The defenders having failed to provide for the pursuer proper appliances for the cleaning of said machine, and thereby compelling her to use her hands for this purpose, and the pursuer in so doing having received the injuries condescended on, the defenders are liable for the consequences. (3) The pursuer being a young and inexperienced girl, the defenders in employing her must be held to have contracted to keep her free from all injury she might sustain in assigning to her such a dangerous duty as the charge of a carding-machine. (4) Pursuer being a child within the meaning of the Factory and Workshops Act of 1878, and she, in contravention thereof, having been employed to clean machinery in motion, and in the course of which she received the injuries condescended on, she is entitled to compensation.”

The defenders stated that the pursuer had represented herself to them to be above the age of fourteen, and that the accident occurred through her unnecessarily and against their orders and rules interfering, while the machine was in motion, with a part thereof at or near to one of the lower wheels at the side of it, where she had no occasion or right to be, her injuries being thus due to her own fault.

They pleaded—“(2) The defenders not having been to blame for the said accident, and the same having been caused by the pursuer's own fault, the defenders are entitled to absolvitor.”

The nature of the work which the pursuer had to do, as it appeared at the proof, is thus explained in the note of the Sheriff-Substitute:—“From the evidence as a whole, and his own observation, the Sheriff-Substitute thinks, that while the work at which the pursuer was engaged is somewhat hard and trying work, and that consequently careful managers generally avoid employing such young girls at it, it is not of itself dangerous. It consists in attending to eight cases which feed the machine with tow, and another case into which the machine discharges. In addition to this, when the machine gets clogged with the tow which is continually flying about it, the worker must ‘set-off’ the machine—that is, disengage it from the general motive power—which is done by pulling out a handle, and then take off the tow. Besides this there are stated times in the day when the machinery is stopped for the purpose of more thorough cleaning. Now, in none of these operations (except possibly in pulling out the handle, which is perhaps nearer a driving-belt than it ought to be) has the worker to put her hands or any other part of her person near going machinery.” Evidence was led to show that the pursuer had been told not to attempt to clean the machine while in motion, and that she had been found fault with for touching it while in motion. She denied that she had.

The Sheriff-Substitute ( Gillespie) pronounced this judgment:—“Finds in fact that the accident which resulted in the loss of the pursuer's arm was caused by her attempting, contrary to express orders, to clean part of the carding-machine while it was in motion: Finds in law that she is not entitled to recover damages from the defenders: Assoilzies the defenders from the conclusions of the action.

“ Note.—The pursuer was a month under fourteen years when she was engaged by the defenders, and eight days under fourteen when the accident occurred. It is not alleged that she had an educational certificate in terms of the 26th section of the Factory and Workshops Act 1878. The defenders therefore committed a breach of the statute in employing the pursuer as a full-timer. The proof shows reprehensible laxity on the part of the defenders and another employer in taking on a girl as a full-timer without any proper inquiry as to her age. Still, the breach of the Act did not of itself make the defenders responsible for every accident that might befall the pursuer in her work, although it may create a certain presumption against them. [ His Lordship then explained the nature of the work (as above given), and stated his grounds for concluding on the evidence that the pursuer had been told not to touch the machine when in motion.] The Sheriff-Substitute is very sorry (because it is impossible to prevent one's sympathies being with the pursuer) to be obliged to come to the conclusion that the pursuer was doing a thing which was not only obviously dangerous, but which she had been expressly forbidden to do. Great allowance must be made for the pursuer's youth, and the Sheriff-Substitute feels hesitation whether he has made enough allowance, but still, after carefully reading the decisions cited, he inclines to think that even a girl of the pursuer's age, who acts as she did, cannot make her employers liable for the consequences. Although the pursuer was new to that particular machine, she had worked in factories for some time, and ought to have known the necessity of strict adherence to the rule of not touching a machine in motion.”

On appeal the Sheriff ( Crichton) adhered to the judgment of the Sheriff-Substitute.

“ Note.—In the pleas-in-law annexed to the petition several grounds for holding the defenders liable to the pursuer are set forth. At the discussion which took place before the Sheriff the grounds of liability stated in the second and fourth pleas-in-law were not insisted in, but it was maintained that the fault on the part of the defenders which rendered them liable to the pursuer was their having employed so young a girl to work at a dangerous machine. In support of that contention reference was made to the opinions of the Judges in the case of Ross v. Thomson & Company, November 2, 1882, 20 Scot. Law Rep. 46. The pursuer at the time of the accident was within a few days of fourteen years of age, and the proof shows that it is not usual to employ girls under the age of sixteen or seventeen to work at a carding-machine. Notwithstanding what is stated by some of the witnesses, the Sheriff, after inspecting the machine, concurs with the Sheriff-Substitute in thinking that working at a carding-machine is not dangerous employment. What

Page: 370↓

the pursuer was attempting to do when she got her arm injured was exceedingly rash and most dangerous, and would have been so for a person of skill and experience. She says that while the machinery was in motion she was picking the tow off the roller underneath the machine with her hand. Now, although this was a careless and even reckless thing to do, still, looking to the youth of the pursuer, her contention would have had some force if it had been proved that the defenders had not instructed her as to how the work at the machine was to be performed, or that they had failed to warn her not to interfere with the machine while in motion, or that they neglected to provide her with some implement for the proper performance of her work, or that the appliance for ‘setting off’ or on the machinery was not in working order. In employing a person so young as the pursuer to do work which it is proved is usually done by older persons, the defenders were bound to see that every precaution was taken for her safety. On consideration of the evidence, however, the Sheriff thinks it is proved that the pursuer was instructed how to do her work at the carding-machine. It is not difficult work, and is easily learned. She was cautioned not to interfere with the machinery while in motion. Indeed, she was found fault with for doing so. She says she got a stick from Mr Nicoll to put in below the roller if the tow fell down. On the day of the accident this stick had gone amissing, and without troubling herself to search for it or to ask for another she attempted to take off the tow with her hand. She ought not to have done this even with the stick when the machinery was in motion. Again, the machine is quite easily stopped. There is the usual appliance for setting off or on the driving-belt, which there is no difficulty in working.”

The pursuer appealed, and argued—(1) The defenders were acting in contravention of the provisions of the Factory and Workshops Act 1878 (41 Vict. c. 16) in employing the pursuer as a full-timer. She was under fourteen years of age when the defenders employed her, and their breach of the statute raised a strong presumption against them. (2) The result of the evidence was that the employment to which she was put was not of such a kind as girls of her age were usually put to, and was dangerous for one so young.

Authority— Gibb v. Crombie, July 6, 1875, 2 R. 886.

The defenders replied—Even assuming that the employment of the pursuer had been in violation of the Factory Act, such employment did not per se render her employers liable for every injury she might receive in the course of her employment— Carty v. Nicoll, November 16, 1878, 6 R. 195. Especially was this so when she had herself contributed to the injury by disregarding the orders of her employers— Casswell v. Worth and Another, January 18, 1856, 25 L.J., Q.B. 120.

At advising—