Allan v Barclay. [Court of Session—1st Division.]
| Jurisdiction | Scotland |
| Judgment Date | 15 March 1864 |
| Date | 15 March 1864 |
| Docket Number | No. 155 |
| Court | Court of Session (Inner House - First Division) |
Lord Kinloch. M.
Reparation—Master and Servant—Consequential Damage.—
Process—Summons—Competency—
THIS was an action at the instance of John Allan, brewer, Airdrie, against Andrew Barclay, engineer, Kilmarnock, concluding for L.50. It was averred that, on 22d September 1863, an engine belonging to the defender had broken down on the public road, and was left in an oblique position across the road; that the engine might have been easily moved into a recess at the side of the road, where it would have done no damage; that it was not so removed, but allowed after dark to continue lying across the road, with a large fire or other blaze of light burning on the engine to mark the place; and that William Hill, a carter in the service of the pursuer, came opposite the engine with his horse and cart, and his horse being frightened by the glare, shied, and upset Hill and the horse and cart into the ditch, Hill receiving personal injuries, and the horse and cart being damaged. The pursuer further averred—‘Through the occurrences above set forth, the said William Hill sustained very serious injuries, in consequence of which he has since been utterly unable to prosecute his work, in the capacity aforesaid as servant to the pursuer. The services of the said William Hill were of the utmost importance to the pursuer, as, being acquainted with the pursuer's business, and with his customers, he was instrumental, to a very great extent, both in maintaining and in extending it. The pursuer, by being deprived of these services, and not having been able to supply the place of his servant by another person of the same qualification, and the same knowledge of his business, has sustained serious loss, which he cannot estimate at less than L.30. In a number of other ways the pursuer has suffered loss and damage from the said accident. The goods in the cart at the time libelled were of considerable value, and were altogether destroyed. The horse and cart were both very much injured, and the pursuer has expended a large sum of money for repairs, and for the treatment of the horse by a veterinary surgeon. He has, in addition, been subjected to various expenses in connection with the said accident, the several items of which makes a sum of not less than L.20.’
The pursuer proposed two issues. The first put—Whether the accident had happened, and Hill had ‘thereby sustained serious injuries through the fault of the defender? and whether the pursuer was thereby deprived of the services of the said William Hill, through the fault of the defender, to the loss, injury, and damage of the pursuer? 2. Whether the said horse and cart were injured through the fault of the defender, to the loss, injury, and damage of the pursuer? Damages laid at L.50 sterling.’
The defender objected to the relevancy of the action; and the Lord Ordinary reported the case on the adjustment of issues.∗
The pursuer argued, that a claim by a master for damages sustained by loss of his servant's services was relevant by the law of Scotland, where there was no general rule against recovering consequential damage.1 The
cases referred to in the Lord Ordinary's note shewed that such a claim was competent in England, and there was no difference upon this point...To continue reading
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