M'Millan v. Barclay, Curle, & Co., Ltd [1911] ScotLR 242 (20 December 1911)

M'Millan v. Barclay, Curle, & Co., Ltd [1911] ScotLR 242 (20 December 1911)

The pursuer's averments did not disclose a relevant case at common law because there was no allegation of a defective system or failure to provide a competent foreman; the danger was temporary and under the foreman's control. However, a relevant case was stated under the Employers' Liability Act 1880, as it was averred that the foreman knew of the danger and failed to take customary precautions.

Citation
[1911] ScotLR 242
Parties
Pursuer: Thomas M'Millan; Defender: Barclay, Curle, & Company, Limited
Jurisdiction
Scotland
Judgment Date
20 December 1911
Procedural Posture
Reparation (damages) / Appeal From Sheriff Court to Court of Session Inner House, First Division
Outcome
Action dismissed so far as laid at common law; issue allowed under the Employers' Liability Act 1880.
Legal Topics
Employer's Liability, Common Law Negligence, Master and Servant, Workplace Safety, Relevancy of Pleadings
Tort Employment Law Employer's Liability Common Law Negligence Master and Servant Workplace Safety Relevancy of Pleadings

Case Brief

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Parties

Thomas M'Millan

Pursuer

Barclay, Curle, & Company, Limited

Defender

Procedural Posture

Reparation (damages) / Appeal From Sheriff Court to Court of Session Inner House, First Division

Legal Issues

  1. 1 Whether the pursuer's averments disclosed a relevant case of employer's liability at common law for the death of his son.
  2. 2 Whether the pursuer's averments disclosed a relevant case under the Employers' Liability Act 1880.

Ratio Decidendi

The pursuer's averments did not disclose a relevant case at common law because there was no allegation of a defective system or failure to provide a competent foreman; the danger was temporary and under the foreman's control. However, a relevant case was stated under the Employers' Liability Act 1880, as it was averred that the foreman knew of the danger and failed to take customary precautions.

Court Disposition

Action dismissed so far as laid at common law; issue allowed under the Employers' Liability Act 1880.

Orders

  • Dismissal of common law claim as irrelevant.
  • Proof allowed under the Employers' Liability Act 1880.