M'Quade v. William Dixon (Ltd)

Section 2. “A workman shall not be entitled under this Act to any right of compensation or remedy against the employer in any of the following cases—that is to say, (1) Under sub-section 1 of section 1, unless the defect therein mentioned arose from or had not been discovered or remedied owing to the negligence of the employer, or of a person in his employment, and entrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition.”

This was an action of damages at common law and under the Employers Liability Act 1880, raised by Michael M'Quade, a pony driver in a mine at Blantyre, against William Dixon (Limited), coal—masters, Glasgow, in respect of personal injuries sustained by him when in the defenders' employment.

He pleaded—“(3) The pursuer having been injured while in the employment of the defenders as a workman through the fault or negligence of the defenders, or of those for whom they are responsible, are liable to the pursuer in damages, and decree should be pronounced in terms of the second conclusion of the petition under the Employers Liability Act 1880, section 1, sub-sections 1, 2, and 3.”

The Sheriff-Substitute ( Spens ) having allowed proof before answer, the pursuer appealed for jury trial.

The pursuer replied—The action was relevant under sections 1 (sub-section 1) and 2 (sub-section 2) of the Act. It was the roadsman's duty to keep the “way” and the plant in good order. He ought to have removed the broken sleeper out of the premises altogether. This he might easily have done. His employer was, then, under the above sections, liable— Mitchell v. Coals Iron Company , November 6, 1885, 23 S.L.R. 108 .