Adair v Colville & Sons
| Jurisdiction | Scotland |
| Judgment Date | 27 November 1926 |
| Docket Number | No. 15. |
| Date | 27 November 1926 |
| Court | Court of Session |
Lord Justice-Clerk (Alness), Lord Ormidale, Lord Hunter, Lord Anderson.
Workmen's CompensationAct 1906 (6 Edw. VII. cap. 58), sec. 1 (4)Assessment of compensation on failure of action of damagesSheriff Court action of damages for death of workmanVerdict in favour of employersApplication of verdict by Sheriff with reservation of pursuers' rights under Workmen's Compensation ActsUnsuccessful appeal against Sheriff's interlocutorSubsequent unsuccessful action for reduction of Sheriff's interlocutorApplication thereafter for award of compensationCompetency.
Workmen's CompensationAct 1906 (6 Edw. VII. cap. 58), sec. 1 (4)Assessment of compensation on failure of action of damagesDeductionsExpensesUnsuccessful action for reduction of decree in action of damagesDeduction of expenses awarded in action of reduction.
The dependants of a workman, whose death was caused by injuries sustained by an accident in the course of his employment, brought an action against his employers at common law and under the Employers' Liability Act, 1880. The case went to jury trial in the Sheriff Court, and the Sheriff, having found that the verdict was for the defenders both at common law and under the Act of 1880, applied the verdict accordingly, but reserved to the pursuers any rights competent to them, under sec. 1 (4) of the Workmen's Compensation Act, 1906, to have compensation assessed. The pursuers appealed, and the appeal was dismissed as incompetent, in respect that the evidence had not been recorded. The pursuers then brought an action for reduction of the Sheriff's interlocutor, and that action was ultimately dismissed in the House of Lords. The pursuers then moved in the original action for assessment and payment of compensation, the amount of which had been consigned by the defenders in that action.
Held (1) that, in consequence of the reservation contained in the interlocutor applying the verdict, the pursuers were still entitled to have compensation assessed, notwithstanding that the verdict had been applied and notwithstanding their appeal against that interlocutor; and (2) that the expenses found due to the defenders in the action of reduction fell to be included in the deductions from the compensation payable to the pursuers.
Dicta of Lord President Clyde and Lord Skerrington in Perth General Station Committee v. Stewart, 1924 S. C. 1004, approved and applied.
Harrison v. Wythemoor Colliery Co.ELR, [1922] 2 K. B. 674, commented on.
(Sequel to Adair v. Colville & Sons, 1922 S. C. 672, and Adair v. Colville & SonsENR, 1924 S. C. 981, and 1926 S. C. (H. L.) 51.)
In June 1921 Mrs Jeanie M'Ghie or Adair, Glengarnock, and others, the widow and children of the deceased Robert Adair, brought an action in the Sheriff Court at Kilmarnock against David Colville & Sons, Limited, carrying on business at Glengarnock, Ayrshire, craving decree for 1000 as damages at common law in respect of the death of Robert Adair, or, alternatively, 780, or such other sum as might be found due by the defenders, under the Employers' Liability Act, 1880.
Robert Adair died from burns caused by the explosion of molten metal which had been poured into a damp pit. The pursuers averred negligence, and also that the deceased Robert Adair was acting upon the orders of a foreman of the defenders.
The subsequent history of the litigation between the parties, so far as bearing upon the subject of this report, was as follows:The employers lodged defences, and, inter alia, averred that the pursuers had elected to claim 300 under the Workmen's Compensation Act, 1906, which sum the employers had paid into Court. They pleaded that the pursuers were barred from claiming damages at common law, or under the Employers' Liability Act. That plea was repelled, and the case was sent for trial by a jury. The case was tried before the Sheriff (Lyon Mackenzie) and a jury on 6th and 7th March 1922, without a shorthand writer, the agents for the parties having lodged in process a minute agreeing to dispense with a record of the proceedings. The Sheriff proponed certain questions to the jury, to which the jury returned answers. Thereafter the Sheriff pronounced the following interlocutor: Finds in law that, in respect the answers returned by the jury to the questions proponed to them do not support the case laid on record either at common law or under the Employers' Liability Act, 1880, the verdict is for the defenders; Applies the verdict accordingly, reserving to the pursuers any rights competent to them under section 1 (4) of the Workmen's Compensation Act, 1906 *;
The pursuers appealed to the Court of Session; and on 14th July 1922 the appeal was dismissed as incompetent in the absence of a record of the proceedings, and the case was remitted back to the Sheriff.1 The process was thereupon retransmitted to the Sheriff Court, where it remained until the present appeal.
On 17th March 1923 the pursuers brought an action of reduction of the Sheriff's interlocutor applying the verdict. On 8th January 1924 the Lord Ordinary (Constable) dismissed that action as irrelevant. On 17th July 1924 the Second Division, along with three consulted Judges, adhered to that interlocutor.2 The pursuers then appealed to the House of Lords in forma pauperis, and on 11th June 1926 the House of Lords refused the appeal.3
On 30th April 1923 the defenders had moved the Sheriff in the original action to order payment to them of the 300 consigned, but the Sheriff refused the motion in hoc statu in view of the action of reduction then pending in the Court of Session. On 16th July 1926 the motion was renewed by the defenders and was granted by the Sheriff, who, on the same day, refused a motion by the pursuers
to find them entitled to compensation under the Workmen's Compensation Acts, and to assess the amount thereof at 300.
The pursuers appealed, and the case was heard before the Second Division on 10th and 12th November 1926.
Argued for the pursuers;(1) The pursuers were entitled to have compensation assessed under the Workmen's Compensation Acts. If the Sheriff' had applied the verdict in favour of the defenders without any reservation, he would have been functus and could not have assessed compensation.1 The reservation contained in his interlocutor, however, made a radical difference. If that reservation was not wholly idle, it distinguished the present case sharply from the earlier cases.2 The Sheriff had treated the reservation as meaning nothing, and as serving no purpose. He was not entitled so to construe his interlocutor, especially as such a reservation was quite proper, and was effective to keep the original action alive for the purpose of assessing compensation.3 Moreover, the reservation was made in an action where liability to pay compensation was admitted, and compensation had actually been consigned. The defenders' argument that the reservation was a reservation of rights, and that that was a different thing from a reservation which kept an action alive, was fallacious, because the only right open to the pursuers which could be reserved was the right to have compensation assessed in the original action, and consequently the reservation necessarily involved that the action was kept alive for that purpose. Even that purpose was formal, for it did not require to be determined that compensation was due. That was admitted, and the only thing that required to be done was to issue a certificate for the amount thereof, which could be done by the Court without a remit back to the Sheriff.4 But, if the defenders had maintained that the proof in the original action had shown that the pursuers were not entitled to compensation or that the reservation was incompetent, they could have appealed in order to get rid of the reservation. That showed that the original action had not been unconditionally and unreservedly disposed of.5 (2) The pursuers were not barred from claiming compensation because they had appealed against the Sheriffs interlocutor. The defenders contended, and the Court held, that that appeal was incompetent,6i.e., that there never was a real appeal. Accordingly, the defenders were now barred from pleading that there had been any appeal, or, at least, any appeal which operated as an election to proceed at common law or under the
Employers' Liability Act, 1880. Harrison'sELR case1 was distinguishable, because there the appeal was after compensation had been assessed, and the judgment was that compensation could not be assessed under reservation of a right to appeal in ordinary form. The procedure for assessing compensation was Workmen's Compensation procedure, and in such procedure an appeal except by stated case was incompetent. (3) The expenses of the reduction, in so far as the defenders were entitled thereto, could not be deducted from the compensation found due. The only expenses which could be deducted were the expenses of bringing the action, i.e., the original action. The reduction was a separate and independent process. Both section 18 of the Act of 1923 and section 1 (4) of the Act of 1906 must be strictly construed, for the policy of the Workmen's Compensation Acts was to secure that the workman should receive his compensation free from counter-claims.2
Argued for the defenders;The pursuers had a choice between two rights, (a) their rights at common law and under the Act of 1880, and (b) their rights under the Workmen's Compensation Acts. The latter were enforceable by arbitration or under section 1 (4) of the Act of 1906. But the ordinary law of election applied. The pursuers could not take a decree upon either claim, reserving right to proceed upon the other.3 If they took a decree in their claim for damages, they lost their right to compensation. If they took a decree for compensation, they lost their right to claim for damages. Section 1 (4) did not affect that in any way; it merely conferred on the...
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...in addition to Cameron v Vinters Defence Systems Limited [2008] P.I.Q.R. p.5, Mitchell v Laing 1998 S.C. 342, and Adair v Colville 1927 S.C. 116. Discussion [13] The task for the court in any case for damages is to assess the amount of the pursuer's loss arising from the defender's negligen......