Scottish Court of Session Decisions

Mrs Annie Macfarlane Rennie or Bell, Greenock, brought an action as an individual and as tutrix and administratrix-in-law for her children against William Adam & Company, coppersmiths, Dock Breast, Greenock, to recover damages at common law from the defenders for the death of her husband, who was killed by an accident while in their employment.

On 20th March 1907 the Lord Ordinary ( Johnston) allowed a proof before answer.

Opinion.—“I think that the condescendence is partly relevant and partly irrelevant. The pursuer's position on record is that the deceased Robert Galbraith Bell was employed as a coppersmith, and that he had no experience of the work he was ordered to undertake, which was the dismantling and removing of heavy utensils from a disused sugar refinery in Greenock.

“Now, his widow says that the deceased and those who were working with him went to the defenders' works to obtain tackle; that there was no tackle suitable for lowering the utensils to the ground; that, according to the practice in the defenders' works, all tackle required by their employees hung up in the brass shop, and from this tackle they were in use to make selection of what they required. Then she says deceased did the best he could by taking certain slings and removing them to the sugar refinery; that he and his mates broke up the utensils and lowered parts to the ground. When they came to the heavy portion they failed to get it down owing to something jamming, and in course of their efforts the pulley gave way, and the deceased was precipitated to the ground and killed. And then the pursuer goes on to aver fault on the part of the defenders.

But she sets forth no relevant averment of defective construction.

It is not said that the rope was frayed or insufficient for the weight, but for aught that is said it was a perfectly efficient piece of plant if properly used, but was, on the statement, improperly used, by the rope being rove through the wrong place, it having been passed through the thimble instead of round the thimble of the tackle. The thimble not being intended to stand a strain in this way, gave way, and the accident happened.

This is not a relevant statement of defective construction or of defective condition, or of an accident happening through defective condition or construction of plant. But then it is also alleged that it was ‘gross negligence on the defenders' part to entrust to the deceased and his fellow-workmen the duty of executing, unaided, work which required the direction and assistance of skilled riggers in order to allow of its being safely performed.’

I cannot say at this stage that this is irrelevant. I think that if it turned out that these coppersmiths are artificers, whose experience is confined to the workshop, that it was not proper to have sent them out to perform this operation of breaking up and lowering from a fourth storey utensils of such considerable weight.

I cannot say how the matter will turn out on proof, but I can say that I think there is enough relevantly stated to justifiy inquiry. But I do not think that the case ought to go to a jury. The case is, at least, only partly relevant, and it is difficult, before a jury, to confine the evidence to that which bears on the relevant part of the case, and, whatever care the presiding Judge may take in charging them, to induce the jury to restrict their consideration to that part of the evidence.

I shall therefore allow a proof before answer.”

The pursuer reclaimed, and argued—(1) The whole case was relevant, and accordingly the Lord Ordinary's ground for withholding it from a jury was inapplicable and fell. (2) Even assuming that part was not relevant, that was no valid ground for withholding the case from a jury.

Argued for the defenders and respondents — The Lord Ordinary had a discretion as to the mode of trial to be allowed, and as to what was special cause for not sending a case of this kind to a jury. The Court was not ready to interfere with this discretion, and there was no ground for doing so in this case — Vallery v. M'Alpine & Sons, May 16, 1905, 7 F. 640, 42 S.L.R. 535; Jack v. Rivet, Bolt, and Nut Company, Limited, March 10, 1894, 6 F. 572, 41 S.L.R. 429; Edinburgh Railway Access and Property Company v. John Ritchie & Company, January 7, 1903, 5 F. 299, 40 S.L.R. 244; Fearn v. Cowpar, March 14, 1899, 1 F. 751, 36 S.L. R. 593. Barclay v. M-Alpine & Sons, May 26, 1904, 12 S.L.T. 45, and Cooke v. Leith Harbour Commissioners, November 24, 1905, 13 S.L.T. 536, were also referred to.