Scottish Court of Session Decisions

A man who has engaged a contractor to do work for him in such circumstances as the present case discloses is not absolved from liability to anyone suffering damage through deleterious material being left on the ground after the contract is completed. In my opinion the defender was here bound to see that the interests of third parties were properly safeguarded. I propose to your Lordships that we should sustain the appeal and recal the Sheriff-Substitute's interlocutor, and with the appropriate findings give decree in favour of the pursuer for £57, 10s., which, if damages are due, is admitted to be the amount, and which includes the value of the cow and any collateral damage due to loss of milk.

Lord Dundas—[ After dealing with a question with which this report is not concerned]—A remaining question was argued, whether the man Macpherson was really a servant of the defender or a contractor. I do not think it is necessary to decide that actual matter one way or the other. The job in question was quite a simple one. The defender told Macpherson to do it. It involved a risk that poisonous matter in the shape of chips or flakes might be left about on the surrounding grass. I think that risk imposed a duty on the defender to avoid dangerous consequences to the pursuer and to the public, and I do not think he could free himself by delegation, even assuming that he instructed Macpherson—which is not proved—that he should clear up the chips before he went away as part of the job. I think there was negligence here for which the defender is responsible.

Lord Salvesen—I concur with your Lordships in all that has fallen from both of you, and there fore I do not propose to detain the Court long by any observations of mine.

I would merely point out that it is not enough for a defender to point out that he contracted with another to do the work, and that that contractor failed to do what he had undertaken. To raise a defence in law exonerating an employer it must be an independent contractor—that is to say, one who is not subject to the control of the employer, and whose contract cannot be lawfully terminated at the pleasure of his employer. In looking upon the relation that existed between Macpherson and the defender in this case, I do not think that he was an independent contractor in that sense so as to free the employer from the consequences of any negligence which he might be guilty of.

But while this might be a more or less difficult question, it appears to me that the case is capable of being decided upon very simple legal grounds. If a man employs another, whether by contract or as his servant, to perform operations the necessary or ordinary result of which will be the deposit upon his neighbour's ground of dangerous material, then it appears to me that there is a duty upon that person either to guard his neighbour from the consequences of the dangerous deposit or to have the dangerous deposit removed, and that he would not escape liability even if he had given instructions to somebody else for its removal if his instructions were not carried out.

On that simple legal ground I think the defender cannot shelter himself behind Macpherson, even although it had been part of Macpherson's contract—as I agree with your Lordship in the chair it was not—to remove this material which he dislodged in the course of the work which he undertook for the defender.

Lord Guthrie— After dealing with a question which is not the subject of this report—As to the other question I agree with your Lordship in the chair that it is not necessary to decide here whether Macpherson was an independent contractor or the defender's servant. The defender knew the nature of the operations and the character of the place where they were carried on, and was bound to have seen, whether Macpherson was a contractor or a servant, that he removed the dangerous results of the operations. But I agree further with Mr MacRobert on that question, that whether Macpherson was contractor or servant, the defender is liable, because it is proved that he authorised Macpherson to execute these operations, which necessarily involved a deposit of dangerous material on ground which he had no right to use, and which he was bound to know was used for grazing the pursuer's cow.

The Court pronounced, with expenses, this interlocutor—

“Recal the interlocutor of the Sheriff-Substitute appealed against: Find in fact (1) that on or about 5th June 1918 the defender employed a man William Macpherson to repair his boats; (2) that Macpherson proceeded to repair said boats, which were then drawn upon the grazing land on which the pursuer had the right to pasture one cow; (3) that in the course of said repairs and as a result incidental to their execution quantities of old paint scrapings were dislodged and fell upon the grazing land in question; (4) that said paint scrapings contained a considerable percentage of white lead, which if consumed by an animal acts as a poison; (5) that defender took no steps to guard against said poisonous material being a source of danger to animals which were lawfully grazing on said land by directing the same to be removed or otherwise; (6) that the pursuer's cow consumed a part of said material, and as a consequence thereof died on 23rd June 1918: Find in law on foregoing facts that the defender is liable to compensate the pursuer for the loss

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which he has sustained: Assess the said compensation at the sum of fifty-seven pounds ten shillings (£57, 10s.), and decern against the defender for payment of that sum in full of the conclusion of the action, with legal interest thereon from this date till payment.”