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Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Morton v William Dixon Ltd [1909] ScotCS CSIH_5 (19 March 1909)
Cite as: [1909] ScotCS CSIH_5, 1909 SC 807, (1909) 1 SLT 346

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19 March 1909

William Dixon, Limited.

Lord President.—(After the narrative quoted above)—The learned Judge who tried the case indicated very plainly, and his views have been amply borne out by the evidence, that there is grave doubt whether this man was ever struck at all. There is also some doubt whether, if he were struck, the blow really hurt him. Speaking for myself, I should not have thought it proper to grant a new trial upon either of these grounds, because although the truth upon this matter may very well be so, and I should be inclined to give great weight to the views of the Judge who conducted the trial and saw and heard the witnesses, I still think that there was evidence relevant to these matters which, if believed by the jury, would justify the verdict.

But upon the other matter I have come to the conclusion that there really was no evidence before the jury that the fact of the blow being received was due to any negligence on the part of the defenders. No one says that the system of having hutches going up in the cage and the opening of the door by means of a “policeman” is a wrong system. It goes without saving that there may be pieces of coal upset by the bump at this point, and nobody says that such a thing can be helped. But the one fault which was alleged against the system was this: It was said that there ought to have been some sort of shielding contrivance which, in conjunction with the roof of the cage itself, would have prevented there being a danger zone at the foot of the pit. The evidence as to the space which that danger zone represents is singularly unsatisfactory. I should have thought that there was no room for doubt, because it is a mere question of measuring with a measuring rule; and yet we have conflicting evidence. Some witnesses say that the space is only 2 inches. If it were really so, one could not imagine that any arrangement could be made which would leave the moving cage with a clearance of less than 2 inches. On the other hand, other witnesses say that there was a space of 12 or 14 inches. The jury would come to their own conclusions about that.

But the point is whether there ought to have been some penthouse arrangement, and whether the failure to provide such an arrangement was negligence on the part of the defenders. As to this there is no evidence whatsoever except that of one expert witness, who says he thinks such a thing might have been put there. I look upon this matter as one of great importance not merely for this particular case, but for cases of this sort generally. Where the negligence of the employer consists of what I may call a fault of omission, I think it is absolutely necessary that the proof of that fault of omission should be one of two kinds, either—to shew that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or—to shew that it was a thing which was so obviously wanted that it would be folly in anyone to neglect to provide it.

Now, how does the evidence stand here? There is just one witness who says this might have been done, and he mentions some pits in which it is done. All the other witnesses say they know of no such thing. It is quite certain that there is no evidence here that it was a common expedient. But what, so far as I am concerned, influenced me in the case was that among the witnesses who were examined were the two workmen who formed the committee of the pit and from time to time inspected the appliances of the pit, and reported to the owners what, if anything, they thought necessary to be done. There never was a suggestion by these men that this appliance should be put there, and when it was suggested to them they looked upon it as an impracticable thing. In that state of the evidence it is impossible to come to the conclusion that there was negligence on the part of those employers.

If the accident had happened in a certain way, and it had then been suggested that here was something which never happened before but still had happened now, and that the employer should have guarded against it by the adoption of some appliance, and the employer notwithstanding had said he did not propose to do so—that would have been a perfectly different state of circumstances. But in the state of utter doubt in which I am left upon the evidence as to whether the thing is practicable at all—I mean owing to the question of space—I think it is out of the question to say that there is negligence on the part of the employers here because they did not put in a thing which nobody ever asked them for, and which, if it exists at all, is certainly not a common thing.

I am bound to add, and I do this for the benefit of employers, that the only difficulty I have had in the matter has been caused by the absurd attitude taken up by their expert witnesses. When the matter was put to them, instead of taking the frank line and saying that the appliance is not in any view necessary, and that they did not think it would be any good, they started ridiculous theories as to its interfering with the ventilation and so on, which really were an insult to the intelligence of anyone who was listening to them. I should like expert witnesses to know the impression they make on my mind when they give that sort of evidence.

On the whole matter I am of opinion that there ought to be a new trial.

Lord M'Laren.—The only ground of liability alleged in this case is negligence on the part of the owners of the mine in respect of the want of some protection for the heads of the men who were working at the bottom of the pit and placing the hutches in the cage. I assume in favour of the pursuer that he was struck by a piece of coal which fell from a considerable height and with such force as to hurt him and temporarily unfit him for work. It may be that his case on that point has been exaggerated. On the question of responsibility as for negligence I agree with your Lordship that this could only be established against the employer if he had neglected some precaution that is usual in the trade, or if not proved to be a usual precaution is at least so obvious that he is inexcusable in not having seen the necessity for it. Now, there is no evidence in this case that it was usual to put up a screen of any kind to protect the heads of the men who were working below, or that it was ever considered necessary. I am much impressed by the circumstance to which your Lordship has adverted, that the committee of workmen who were charged with the duty of assisting the employer with suggestions of anything that could be done for the safety of their fellow-workmen—that this committee examined the shaft, and did not suggest any additional precaution. In these circumstances, I think there is really no evidence of negligence; at least the evidence is so scanty that only one verdict was possible, viz., that negligence had not been established. On that ground, although the sum of damages is not large, I think that when a new trial is claimed we are bound to grant it.

Lord Kinnear.—I concur.

Lord Pearson.—I also agree.

Lord Johnston.—It is, I think, to be regretted that after this long trial the defenders did not acquiesce in the verdict and pay the small amount of damages awarded, rather than incur the heavy expense of moving for a new trial. Whatever the cause the pursuer is now a man thoroughly broken in health, and such acquiescence would have been a gracious and charitable act, but that only. For if I am required to consider the case on the ordinary principles applicable to trial by jury, I feel bound to say that I thought at the time, and still think, that the verdict is one which cannot stand.

The form of the verdict is unusual, and as I presided at the trial I think it proper that I should state its origin. It is explained by the course of the trial. The pursuer came into Court on a record which, while it alleged a blow on the head from a piece of falling coal and attributed the fall of that piece of coal and the consequent blow to the negligence of the defenders and the faulty system of the defenders' pit, deduced the pursuer's present symptoms and condition and nothing else from that blow, and he based his claim to compensation solely upon the present symptoms and condition. The evidence was led wholly to support that case, and counsel addressed themselves solely to the case made on record and supported or endeavoured to be supported by the evidence. Naturally, in my charge to the jury, I followed the same course, and, looking to the extent and variety of the evidence, I thought it my duty to try and assist the jury, in arriving at their verdict, by asking their consideration, inter alia, of certain definite questions, and amongst them

First, was the pursuer struck by any piece of coal at all?

Second, if he was so struck, was the blow the cause of the physical condition of which he now complained? and

Fifth, was it due to any negligence of the defenders?

This explains the exceptional form of the verdict, which I accepted in the form in which it was tendered instead of directing the jury to find generally for the pursuer, as I thought the defenders entitled to have the real mind of the jury recorded.

The first of the questions which I suggested to them the jury have answered in the affirmative. While I had doubts at the time whether the blow from a piece of coal was not entirely imaginary, there was evidence to go to the jury, and on this point their verdict cannot be disturbed.

The second question the jury answered in the negative, and in my opinion they could do nothing else. It was proved to demonstration that from a time anterior to the alleged accident the pursuer had been suffering from what was diagnosed by the only doctor who saw him contemporaneously to be a severe chill followed by influenza, which left in their train most disastrous effects on his nervous system, and entirely accounted for his present condition. It was impossible after the evidence for the jury to find that the accident had anything to do with the pursuer's present condition.

The last question the jury answered in the affirmative, and I suppose it is the imputation thus cast upon their system of working which has justified, in the eyes of the defenders, their motion for a new trial.

I should, I think, have had more difficulty in disposing of this matter in favour of the defenders than your Lordships entertain. But I accept your Lordships' conclusions.

But the jury have tacked on to their answer to the second question a finding evolved for themselves, to the effect that the blow from the falling piece of coal, though it was not the cause of the condition of which the pursuer complained on record, and to which his evidence and his counsel's speech were entirely directed, yet did him injury at the time. For this I think the jury had no warrant in the evidence. I thought so at the time, and on a careful perusal of the evidence I am confirmed in the view I then held. And had I been sitting alone I should have made this matter my ground for allowing a new trial.

But as your Lordships have determined to grant a new trial on other and more general grounds, I shall not occupy the time of the Court by stating my reasons in detail. It is sufficient that I say that, while I think the pursuer's present condition has affected both his memory and his judgment, and that he is not intentionally misstating the circumstances of and surrounding his accident, I am satisfied that at every point he is contradicted by overwhelming independent evidence, and that in finding that the blow from the falling piece of coal did him injury at the time, the jury have gone so against the weight of the evidence that their verdict ought not to stand.

[1909] SC 807

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