Bissett v Heiton & Company

• Jurisdiction: Ireland
• Judgment Date: 31 July 1930
• Date: 31 July 1930
• Court: Supreme Court (Irish Free State)

Supreme Court.

Bissett v. Heiton & Co.

MARY BISSETT

Plaintiff

and

THOMAS HEITON AND COMPANY, LIMITED, Defendants (1)

Negligence - Fatal accident - Statutory duty - Obligation to test rope - Retrial as to breach of statutory duty - Province of Judge and jury - Meaning of "tested" - Factory and Workshop Act, 1901 (1 Edw. 7,c. 22), sect. 79 - Regulations.

Motion by the defendants for an order that the verdict of the jury and the judgment entered thereon on 26th February, 1929, be set aside, and judgment entered for the defendants; or, in the alternative, that a new trial be ordered.

The facts of the case and the material portion of the evidence appear fully from the judgments of the Court.

The plaintiff, on behalf of herself and her infant children, obtained a verdict for damages for the death of her husband based on the alleged negligence of the defendants while the deceased was in their employment. This verdict was reversed on appeal, by the Supreme Court, on the ground that there was no evidence to support the findings of the jury on the question of negligence. Since, however, a question as to non-compliance with Regulations made under the Factory and Workshop Act, 1901 (1 Edw. 7, c. 22), had been raised in the particulars of negligence, but no question upon it had been left to the jury, the Supreme Court ordered a new trial of the action limited to the question whether the rope, the breaking of which caused the death of the deceased, had been properly tested before the defendants allowed it to be used. Upon the retrial, evidence was given that the rope had been tested, but the jury found that the rope had not been properly tested, and judgment was entered for the plaintiff for the amount previously assessed. Upon appeal:

Held (FitzGibbon and Murnaghan JJ., Kennedy C.J. dissenting) that the word "tested," as used in the Regulations made under the Factory and Workshop Act, 1901, was used in a particular or special sense; that the interpretation of the Regulations was for the Court; that there was no evidence on which the jury could find that the test made was not a proper test; and that judgment should be entered for the defendants.

Per FitzGibbon J.: It is for the Judge and not for the jury to define the test when it has not been defined by the Regulations themselves. Breach of the Regulations is a crime; it is for the Judge to define the crime, and for the jury to say whether the accused person has committed it; but it is not in accordance with the law that the issue of guilty or not be left to the jury in such terms that one jury may find that a man who has in fact applied a particular test is guilty, and that another jury may find that another man, who has applied the same test, is innocent.

Cur. adv. vult.

Kennedy C.J.:—

This action was brought by the plaintiff, Mary Bissett, claiming, for the benefit of herself and her infant children, damages for the death of her husband, James Bissett, who was a labourer in the employment of the defendants, and was killed on the 6th day of February, 1928, when engaged in unloading a vessel at the Custom House Docks, Dublin. The cause of the death of the plaintiff's husband was the falling upon him of a coal tub which was being used in the unloading of the ship, and which, when it was swinging over the head of the deceased man while being raised on a crane by means of a wire rope worked by a windlass and running over a pulley, fell, by reason of the wire rope suddenly breaking across. The action was founded on the alleged negligence of the defendants, but in the

particulars of the negligence furnished by the plaintiff's solicitor, in addition to a number of particulars of alleged negligence at common law, the plaintiff also alleged that the defendants were negligent in failing to comply with the provisions contained in the regulations with reference to the unloading of ships in docks or harbours, made on the 24th day of October, 1904, by the then Secretary of State, in pursuance of the powers vested in him by the Factory and Workshop Act, 1901. When the action went to trial, the only questions submitted to the jury by the learned trial Judge were questions relating to the alleged common law negligence, upon which the jury found in favour of the plaintiff for £1,200. An appeal was taken to this Court, when the findings of the jury, in so far as they found that the defendants were guilty of negligence, were set aside on the ground that there was no evidence to justify these findings. The point was, however, made that, though the question of non-compliance with the regulations under the Factory and Workshop Act, 1901, had been raised in the particulars, no question upon it had been left to the jury. The particular question which was pressed as one upon which a finding should have been obtained from the jury, and upon which, if favourable to the plaintiff, she would be entitled to hold her verdict, was the question whether the rope had been tested, as required by the regulations. This Court held that the regulations imposed an absolute duty on the defendants in respect of the testing of the rope in accordance with Regulation No. 9 of Part III of the Regulations, and, though the learned trial Judge had not in fact been asked by counsel to leave the question to the jury, we thought that the interests of justice required that we should remit the case in order to have a finding on this one question, which was, in the order of this Court, pronounced on the 21st December, 1928, set out in express terms as follows:—

"It is ordered that a new trial of this action be had, limited to the following question, viz.:—Whether the rope, the breaking of which caused the death of James Bissett, had been properly tested before the defendants allowed it to be used in hoisting in connection with the processes of unloading goods in or at the Custom House Docks, and of unloading the ship "Kenneth" in the said docks on the 6th day of February, 1928."

The Court further ordered that judgment be entered by the Judge trying the action pursuant to the finding of the jury upon this question, and to the findings of the jury (not set aside as above-mentioned) on the trial already had. The findings which so remained standing were:—

"1. Was the rope defective? Answer—Yes.

3b. Were the defendants negligent in failing to employ a competent workman? Answer—No.

4. Was M'Neill negligent? Answer—No.

5b. Was the accident due to the negligence of M'Neill? Answer—No.

6. Have the plaintiff and the other persons in whose behalf this action is brought suffered loss by the death of James Bissett? Answer—Yes.

7. Assess damages. Answer—£1,200" (which was apportioned between the plaintiff and her children).

The re-trial of the action on the question specified in the order of this Court took place on the 25th and 26th February, 1929, before Mr. Justice O'Byrne and a jury, whereupon the jury answered the question referred for re-trial by this Court in the negative—that is to say, that the rope, the breaking of which caused the death of James Bissett, had not been properly tested before the defendants allowed it to be used for the purposes already mentioned. Upon this finding, judgment was given for the plaintiff for the amount previously assessed with costs.

The defendants have appealed upon the following grounds:—"(1) That said verdict was against the evidence, contrary to the evidence and against the weight of the evidence, and there was no evidence to support it, and was perverse.

(2) That the jury misconceived the meaning of the question submitted to them.

(3) That once it was proved that the test that was applied was properly carried out, it was not competent for the jury to consider whether the test was a proper one or not.

(4) That, as this was a cause of action depending upon a statute, in law it was only necessary to prove that a test pursuant to the statutory regulations had been properly carried out.

(5) That the learned Judge should have entered judgment for the defendants, as requested by counsel for the defendants, upon the evidence, which was uncontroverted, that the test had been carried out."

At the re-trial the defendants undertook the onus of proving affirmatively that the rope had been "properly tested." They proved that they had got the rope from Messrs. Allan Whyte and Company of Glasgow, who were the makers. They then called Mr. James S. Archibald, the works engineer of Messrs. Allan Whyte and Co. He described the composition of these steel-wire ropes. They are made up of four strands of thirty wires each. Each strand has a centre of hemp, and there is another centre of hemp in the core of the rope. They test the wires themselves, but they have no means of testing rope. They buy the wires in coils of twenty thousand feet each. The ropes are made in lengths of eighteen hundred feet each, and fifteen coils of wire go to the making of one eighteen hundred foot-length or coil of rope. The eighteen hundred foot-length of rope is cut into fifteen ropes, of one hundred and twenty feet each. The rope which broke was one of these ropes of one hundred and twenty feet in length. They take a piece three feet long out of each coil of wire for the purpose of testing the wire before using it for the manufacture of rope. They apply tensile, tortional and bending tests to the piece of wire so taken. For the purpose of testing the rope, they take a piece five feet long from the eighteen hundred foot-length before it is divided up into the separate ropes of one hundred and twenty feet, which they sell. No test is made of any of the separate ropes as sold. They send the five-foot testing piece to the Royal Technical College at Glasgow, to be tested in the laboratory of that institution. The witness had not personally sent a test piece of the coil from which Heiton's rope was cut, and no direct or first-hand evidence was given that a section had, in fact, been sent for...