Adair v Colville & Sons
| Jurisdiction | England & Wales |
| Judgment Date | 11 June 1926 |
| Docket Number | No. 8. |
| Date | 11 June 1926 |
| Court | House of Lords |
Viscount Dunedin, Ld. Atkinson, Lord Shaw of Dunfermline, Ld. Sumner, Lord Carson.
ProcessReviewReductionSheriffJury trial in Sheriff CourtRecord of proceedings dispensed withQuestions put by Sheriff to juryQuestions alleged not to be exhaustive of caseReduction on ground of miscarriage of justiceFacts unascertainable in absence of record.
SheriffJury trial in Sheriff CourtGeneral issue or specific questions Method of bringing questions under review.
An action of damages, laid at common law or alternatively under the Employers' Liability Act 1880, was brought in the Sheriff Court by the representatives of a motorman who had met his death through the explosion of molten metal which he was delivering to an outside pit at the defenders' ironworks; and the action was tried before a Sheriff and a jury. At the conclusion of the evidence (which by agreement of parties was not taken down in shorthand) the Sheriff proponed three questions to the jury, of which the second and third had reference to the pursuers' case under the Employers' Liability Act, and the first was as to whether the injuries received by the deceased were caused by the defective condition of the outside pit in the defenders' works; and if so, in what respect. The jury answered this question by stating that in their opinion the accident was caused by the pit being unsuitable owing to dampness, through, the works having been closed and the pit not in use. The Sheriff, in applying the verdict, assoilzied the defenders, in respect that the answers returned by the jury to the questions proponed did not support the case laid on record either at common law or under the Employers' Liability Act. The pursuers appealed, but the appeal was dismissed as incompetent, in respect that there was no record of the evidence. Thereafter the pursuers brought an action for reduction of the verdict and the Sheriff's decree, on the ground that, as the first question omitted all reference to fault or negligence on the part of the defenders, the Sheriff had failed properly to formulate in that question the pursuers' case at common law, and that in consequence a miscarriage of justice had resulted.
Held (aff. judgment of a Court of Seven Judges, diss. Lord Shaw of Dunfermline) that, while it might have been competent to reduce the decree of the Sheriff had it been clearly demonstrated that a miscarriage of justice had taken place, the absence of a record of the proceedings at the trial rendered it impossible in the circumstances for the Court to arrive at any conclusion upon that question; and, accordingly, that the action fell to be dismissed.
Observed per Viscount Dunedin (1) that, in jury trials in the Sheriff Court, a Sheriff would be well advised to submit the matter in dispute to the jury in the form of a general issue, unless the parties insist on specific questions; (2) that, if specific questions are put, the only remedy to a party aggrieved thereby is by way of exception.
(In the Court of Session, 17th July 19241924 S. C. 981.)
This was an appeal against a judgment of a Court of Seven Judges, affirming an interlocutor pronounced by the Lord Ordinary (Blackburn).
The facts of the case and the relevant sections of the Sheriff Courts Act, 1907, are set forth in the following narrative taken from the speech of Viscount Dunedin:
The circumstances out of which this case arises are as follows: On 22d November 1920, Robert Adair, husband of the adult female pursuer and father of the other pursuers, all appellants in this case, lost his life in the works of the defenders and respondents [his employers]. The respondents have steelworks. The molten steel is run through ladles which are dragged forward by means of a motor tractor, so as to discharge into pits which contain moulds into which the steel is then run. The pits so used are under cover with one exception. That one is in the open. Adair was in charge of a motor tractor. On the occasion in question the pit that was being used was the pit in the open, and it had been temporarily divided into three divisions. Two of the divisions had been filled, and Adair was waiting on his engine to drag the ladle to the third, when the second division explodedthe cause being dampness which was converted into steam by the molten metal.
On 20th May 1921 the present appellants raised an action against the respondents in the Sheriff Court of Kilmarnock, in which they craved decree for payment by the respondents of 1000 as damages at common law, or, alternatively, of 750 as damages under the Employers' Liability Act. After certain preliminary procedure, the case was tried by the Sheriff and a jury under the provisions of the Sheriff Courts Act of 1907, as amended by the Sheriff Courts Act of 1913.
The relevant averments as to the liability at common law consisted in a statement that the pit in question was in various ways in a damp condition and unsuitable for the reception of molten metal; that it was in a defective condition, and that the defenders were responsible for its defective condition, as they knew, or ought to have known, of the faulty condition of the pit. The relevant averments as to liability under the Employers Liability Act were averments that Robert Graham, a foreman, was negligent in using the pit, and in not taking sufficient precaution to see that the pit was free from damp. Both these sets of averments were denied by the defenders.
The jury were empanelled and witnesses examined before them. By section 6 of the Act of 1913, the Sheriff at the trial may, or if required by either party shall, propone to the jury a question or questions of fact, and the jury shall give specific answers to such question or questions. The Sheriff invited the parties' procurators to table the questions they thought ought to be put. The appellants' procurator proposed the following questions:(1) Was the cause of the explosion dampness in the outside pit coming into contact with molten metal and generating steam, and was the outside pit unsuitable and defective for the reception of molten metal? (2) If so, were the defenders negligent in permitting the use of this outside pit for the reception of molten metal? (3) If (1) and (2) are answered in the affirmative, what do you assess as the damages at common law? He also proposed questions in regard to liability under the Employers' Liability Act relating to the negligence of Graham. The Sheriff did not accept the questions so proposed, but put the following questions:(1) Whether the personal injuries sustained by the deceased Robert Adair while employed as a tractor engineman at the furnaces at Glengarnock, belonging to the defenders, on the 22nd day of November 1920, which resulted in his death, were caused by reason of the defective condition of the outside pit in the defenders' works; and if so, in what respect? (2) Whether the personal injuries sustained by the deceased Robert Adair, resulting in his death, were caused by the negligence of David Graham, Glengarnock, in the exercise of superintendence entrusted to him by the defenders; and if so, in what respect? (3) Whether the personal injuries sustained by the deceased Robert Adair resulted from the deceased having conformed to an order negligently given by the said David Graham, to whose orders or directions at the time of the injury he was bound to conform, and what was that order? To which he added in his own handwriting:If any of the foregoing queries answered affirmatively what damages do you assess (1) at common law, (2) under Employers' Liability Act?
The jury answered the questions as follows:(1) We are of opinion that the accident was caused by the pit being unsuitable owing to dampness, through the works having been closed and the pit not in use. (2) We answer this question in the negative. In our opinion there was no negligence on the part of David Graham, Who we consider did all that was possible in the circumstances. (3) We answer this question in the negative, not being satisfied that David Graham gave any order, but that the deceased Robert Adair returned to his position from a sense of duty. Damages at common law, 800; under the Employers' Liability Act, 566, 3s. 11d.
Thereafter the Sheriff applied the verdict as follows:The Sheriff having resumed consideration of the cause: 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: Therefore assoilzies the defenders from the conclusions of the action and decerns.
In the Sheriff Courts (Scotland) Act of 1907,1 which introduced jury trial in the Sheriff Court, section 31 is in these terms:In any action raised in the sheriff court by an employee against his employer concluding for damages under the Employers' Liability Act, 1880, or alternatively under that Act or at common law in respect of injury caused by accident arising out of and in the course of his employment, where the claim exceeds fifty pounds, either party may so soon as proof has been allowed, or within six days thereafter, require that the cause shall be tried before a jury, in which case the sheriff shall appoint the action to be tried before a jury of seven persons. The verdict of the jury shall be applied in an interlocutor by the sheriff, which shall be the final judgment in the cause, and may, subject to the provisions of this Act, be appealed to either division of the Court of Session but that only upon one or more of the following grounds:(1) That the verdict has been erroneously applied by the sheriff; (2) That the verdict is contrary to the evidence; (3) That the sheriff had in the course of the trial unduly refused or admitted...
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