That disposes of the whole judgment of the Sheriff-Substitute, but of course we have to consider whether apart from that a relevant case has been stated. Whether a relevant case could have been stated in the circumstances I am not sure. It looks as if an attempt had been made to pile up every ground of liability for damages, with the result that it is impossible to extract from the record any specific ground of liability. As the record stands it seems to me that the only real averment is that the accident was owing to the man who built in the joist building it in loose, and in such a manner that it was not apparent that it was loose. Now, that was the fault of a fellow-workman. I am of opinion therefore that the action should be dismissed.
Lord M'Laren —I agree. In order that there may be a case of defect of works and ways you must first have something that professes to be a “work” or a “way.” Then, supposing it to be a “way” and that it is defective, the employer is responsible as for a breach of the general rule that he is to provide what is necessary for safe and efficient working of his business. But I do not think, when a man is to remove some planks lying across an unfinished floor and he gets to them by walking across the joists, that there is anything that professes to be a “way,” or that the order is to go on a “way” if an order given is to go upon the joists. It is an order to go where there is no way. It is a necessary incident to the construction of buildings that the men employed have to go about the work as best they can. If they cannot get along without a “way” a scaffolding may be provided, and no one doubts that there may be defects in scaffolding for which the person who provides it would be liable. Now this is the only ground that the Sheriff-Substitute has given for his decision, and I think it is unsound. It is right to say that in my view the fault, if fault there was, was that of a fellow-workman, namely, the man whose business it was to make the end of these joists secure, and who did something to it which gave it the appearance of being secure without properly building it in. So far as one can discover from this record that was not a fault for which the employer would be liable either at common law or under the statute.
Lord Kinnear and Lord Pearson concurred.
The Court on February 5 dismissed the action as irrelevant.
Page: 386 ↓
On February 19, fourteen days after the case had been dismissed, the pursuer presented a note in which, after narrating the course of the action, he stated that he was entitled to compensation under the Workmen's Compensation Act 1897 and was desirous to have it assessed, and prayed the Court to remit the case to the Sheriff to proceed with it under the Workmen's Compensation Act 1897, or to do further or otherwise as should seem proper.
The respondent objected.
Argued for appellant—The appellant was entitled to compensation under the Workmen's Compensation Act 1897, and under sec. 1 (4) such compensation was to be assessed in the action raised independently of that Act and found of no avail to the workman. There ought therefore to be a remit to the Sheriff-Substitute to assess the amount. Such a remit was the competent and proper course— Quin v. John Brown & Company, Limited , June 2, 1906, 8 F. 855, 43 S.L.R. 643; Little v. P. & W. MacLellan, Limited , June 16, 1900, 2 F. 387, 37 S.L.R. 287. It was not necessary that the motion for a remit should be made before the Court had pronounced judgment dismissing the action of damages. The section imposed no time limit within which the motion must be made, and the appellant was entitled to reasonable time for consideration before proceeding further. To refuse the application here would cause great hardship, as the accident having occurred on 18th May 1906 it was, under sec. 2 (1), now too late to institute proceedings under the Workmen's Compensation Act 1897. The object of sec. 1 (4) was not to prevent the workman obtaining his remedy save on a strict observance of certain Conditions, but to simplify procedure and prevent the multiplication of actions— Edwards v. Godfrey , [1899] 2 QB 333 , and the Workmen's Compensation Act 1897, sec. 1, sub-sec. (2) ( b ).
Argued for respondent—The application came too late— Baird v. Higginbotham & Company, Limited , March 14, 1901, 3 F. 673, 38 S.L.R. 479. Even were the Court prepared to take a lenient view on the question of time, the application here could not be granted. Section 1 (4) of the Workmen's Compensation Act 1897, relied on by the appellant, only applied to the case where a workman came into Court averring that his employer was liable under that Act as well as for damages otherwise. The appellant had not done so here, and the question of liability for compensation had never been considered. The liability was in fact denied, and the whole question must be included in the remit. That was practically instituting proceedings anew, this time under the Workmen's Compensation Act, and that after the time for such proceedings had expired.
The opinion of the Court (the Lord President , Lord M'Laren , Lord Kinnear , and Lord Pearson ) was delivered by
Lord President — The Court are of opinion that this case is ruled by the case of Baird v. Higginbotham & Company in the other Division. We are not prepared to go back on that decision, and therefore hold that this motion comes too late.
The Court refused the prayer of the note.
Counsel for Pursuer and Appellant— Orr, K.C.— J. A. Christie. Agents — St Clair Swanson & Manson, W.S.
Counsel for Defender and Respondent— Orr Deas. Agents— Simpson & Marwick, W.S.