Hunter v Darngavil Coal Company
| Jurisdiction | Scotland |
| Judgment Date | 23 October 1900 |
| Date | 23 October 1900 |
| Docket Number | No. 4. |
| Court | Court of Session |
Lord Kincairney, Lord Justice-Clerk, Lord Trayner, Lord Moncreiff.
Process—Proof—Separate proof as to preliminary defence—Reparation—Master and Servant—Personal Objection—Election—Workmen's Compensation Act, 1897 (60 and 61 Vict. cap. 37).—
In an action raised by a workman against his employers at common law for damages for injuries alleged to have been received through their fault, the defenders, besides denying fault, averred that the pursuer had given written notice that he claimed compensation under the Workmen's Compensation Act, and that subsequently they had paid him compensation, and pleaded that in respect thereof the pursuer was barred from suing the action. In answer, the pursuer averred that he was induced to sign the notice shortly after the accident by false representations on the part of the defenders, at a time when, through illness, he could not and did not understand its import.
The Lord Ordinary (Kincairney) ordered issues for the trial of the whole case, including the question whether the pursuer had elected to take compensation under the Workmen's Compensation Act.
Held (rev. this judgment) that this question should be determined by proof primo loco.
InApril 1900 William Hunter, miner, brought an action in the Court of Session against the Darngavil Coal Company, Limited, for damages at common law on account of injuries sustained by him on 31st January 1900 when in the defenders' employment.
The defenders, in their answers to the pursuer's condescendence, denied fault, and in a separate statement of facts they further averred;—(Stat. 1) ‘Upon 15th February 1899 the pursuer sent to the defenders a notice signed by him in these terms:—“I hereby give notice that, on the 31st day of January 1899, I was injured in the course of my employment in your West Longrigg Colliery through winding-rope slipping off drum, and that I claim compensation therefor under the Workmen's Compensation Act, 1897.”’ (Stat. 2) ‘Following upon said notice, the defenders adjusted with the pursuer the average wage which he was earning prior to the accident to be £1, 13s. per week, and that the compensation payable to him was therefore 16s. 6d. per week. The defenders have paid compensation to the pursuer at this rate during 33 weeks after the first fortnight, the amount so paid being £27, 4s. 6d.’
The defenders produced receipts for the said payments, signed principally by the pursuer, and in...
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