M'Gowan v. Smith [1907] ScotLR 44_384 (19 February 1907)

M'Gowan v. Smith [1907] ScotLR 44_384 (19 February 1907)

Open joists in a house under construction are not a 'way' within the meaning of the Employers' Liability Act 1880, sec. 1(1), and any defect in them caused by a fellow workman is not attributable to the employer. A motion to assess compensation under the Workmen's Compensation Act 1897, sec. 1(4) must be made timeously; a delayed application is incompetent.

Citation
[1907] ScotLR 44_384
Parties
Pursuer and Appellant: Michael M'Gowan, senior; Defender and Respondent: Alexander Smith
Jurisdiction
Scotland
Judgment Date
19 February 1907
Procedural Posture
Civil Appeal / Inner House, First Division, Post Dismissal Motion
Outcome
Appeal dismissed; application for compensation assessment refused as not timeous.
Legal Topics
Employers' Liability, Workmen's Compensation, Negligence, Master and Servant, Procedural Time Limits
Tort Labour Law Employers' Liability Workmen's Compensation Negligence Master and Servant Procedural Time Limits

Case Brief

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Parties

Michael M'Gowan, senior

Pursuer and Appellant

Alexander Smith

Defender and Respondent

Procedural Posture

Civil Appeal / Inner House, First Division, Post Dismissal Motion

Legal Issues

  1. 1 Whether open joists in a house under construction constitute a 'way' under the Employers' Liability Act 1880, sec. 1(1)
  2. 2 Whether a motion to assess compensation under the Workmen's Compensation Act 1897, sec. 1(4) can be made after dismissal of the action and if not timeously made

Ratio Decidendi

Open joists in a house under construction are not a 'way' within the meaning of the Employers' Liability Act 1880, sec. 1(1), and any defect in them caused by a fellow workman is not attributable to the employer. A motion to assess compensation under the Workmen's Compensation Act 1897, sec. 1(4) must be made timeously; a delayed application is incompetent.

Court Disposition

Appeal dismissed; application for compensation assessment refused as not timeous.

Orders

  • Action dismissed as irrelevant.
  • Prayer for remit to assess compensation under the Workmen's Compensation Act 1897 refused.