Scottish Court of Session Decisions

This was an action of damages for bodily injury raised by Peter Gilligan, a labourer, against his employers George Milne & Company, shipowners and timber merchants, Aberdeen. The action was laid both at common law and under the Employers Liability Act 1880.

The pursuer was a labourer in the defenders' woodyard, and on 29th July 1886 his leg was broken by the fall upon him of some planks of wood which had been piled in the defenders' yard, and which he was assisting to remove to a cart.

In the record (as amended) he averred that there was a foreman over the squad of four men to which he belonged, and that neither he himself nor any of those working with him had ever been instructed how to conduct the work of taking the wood from the piles to the carts. “(Cond. 3) The logs or planks, which were of considerable weight, measured 20 feet long, and were 6 inches by 3 in breadth and depth, were piled up in tiers or ranks to the height of about 6 feet. They were not piled in such a way as to insure safety to the men working at them. The planks were cut at

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the saw-bench by men working by the piece, who (to save time) piled them in a very careless manner, and in consequence the tiers were very unsteady, and very liable to fall. Moreover, several logs were, without the pursuer's knowledge, built in between the backmost tier and the wall so as to rest or press against the said tier, and its unsteadiness was thereby increased. Further, it is averred that the logs were piled in an unusual place (viz., inside the mill), and so near the saw-bench, that there was not sufficient room for the work of removal, and that the want of proper space added to the difficulty and danger of the operations. There were no ‘binders’ on the tiers to prevent them from falling, so in the circumstances mentioned it was dangerous to remove the logs tier by tier, and they should have been removed flat by flat. The pursuer and his fellow-workmen were, however, in ignorance of the danger, and were also unskilled and inexperienced, and they proceeded under the direction of the defenders' foreman, to whom the superintendence of the work had been entrusted by the defenders, to remove the logs tier by tier. The foreman saw them at the work, and it was his duty to have pointed out to them the danger, and to have provided against it, but he gave no warning and no directions to them.” He then set out (Cond. 4) that when two of the three tiers had been taken down, and he was taking the topmost plank off the remaining tier, the tier bulged out and fell on him, and caused the injury in respect of which the action was raised. “Had the planks been built up at a sufficient distance from the saw-bench the pursuer could have escaped; as it was, he was jammed against the bench.” “(Cond. 5) The said accident was due to the fault and negligence of the defenders, or of those for whom they are responsible, in not exercising reasonable care in the proper building of the pile in question, or in failing to instruct the pursuer and those associated with him how to perform the work. The foreman, after the accident happened, said that the pile should have been taken down by reducing all the tiers equally. Had the foreman so instructed them at the commencement of the job, or sent an experienced man to work with the squad, the accident would not have occurred.”

The defenders denied fault, and alleged that in any view there was contributory negligence. They maintained also, on the record as amended in the Court of Sessiou, that the pursuer's statements were irrelevant.

Proof having been allowed, the pursuer appealed for jury trial, and proposed an issue for the trial of the cause.

The defenders objected that there was no issuable matter on record, the only averment of fault of a specific kind being made as to the fault of the ordinary workman who had piled the logs. The work was certainly ordinary labouring work, which required no special skill, so that the pursuer's averment, that though unskilled he had been put to work without instruction in it, did not raise any relevant case against the defenders.

The pursuer admitted that he had not set out a case on which an issue should be granted at common law, but argued that he was entitled to an issue under the Act. The averments showed that the foreman was present, and did not interfere to prevent ignorant men doing the work in an unsafe way. That was tantamount to an order so to do it.

At advising—