Bonnor v Balfour Kilpatrick Ltd
| Jurisdiction | Scotland |
| Judgment Date | 07 June 1974 |
| Date | 07 June 1974 |
| Docket Number | No. 22. |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Lord Kincraig.
Process—Summons—Condescendence—Relevancy—Accident in Oman—Action of damages raised in Court of Session—No averment by either party that claim for damages actionable in Oman—Pursuer called on by defenders to aver entitlement to damages under law of Oman—Call not answered—Presumption that foreign law same as law of Scotland.
In an action of damages brought against his employers in the Court of Session the pursuer averred that he had been injured through the negligence of certain fellow-employees while working in the defenders' employment in the Sultanate of Oman. He did not aver that under the law of Oman an employer was vicariously liable for damage caused by the fault of his employees. The defenders, who likewise made no averment as to the law of Oman, pleaded that the pursuer's case was irrelevant in the absence of any averment that he had a right of action under thelex loci delicti. They called on him to make such an averment, but the pursuer did not answer the call.
Held by Lord Kincraig (Ordinary) (1) that, there being a presumption that foreign law is the same as Scots law, unless the contrary is proved, that presumption must prevail at the stage of relevancy except in so far as averments are made to the contrary, and consequently that the pursuer's omission to make any averment as to the law of Oman did not render his case irrelevant; and (2) that the defenders' call, not being an averment of fact, was not sufficient to put the question of foreign law in issue, and that nothing short of an averment by the defenders that that law did not provide for the remedy sought would compel the pursuer to make full averments as to what the lex loci delictiwas; and issues for the trial of the cause approved.
M'Elroy v. M'Allister, 1949 S.C. 110, andMacKinnon v. Iberia Shipping Co., 1955 S.C. 20,distinguished.
Process—Record—Amendment—Action of damages for personal injuries—Defenders unsuccessful in Outer House—Reclaiming motion after expiry of triennium solely for purpose of seeking to amend in Inner House—Prejudice to pursuer.
The pursuer in an action of damages for personal injuries sustained while he was working in Oman in the employment of a Scottish company founded his case on the defenders' liability for the alleged negligence of certain fellow-employees. Neither party made any averment as to whether the vicarious liability of an employer was recognised by the law of Oman, and the defenders contended in...
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