MacGregor v Lord Advocate

JurisdictionScotland
CourtCourt of Session
Judgment Date06 July 1921
Date06 July 1921
Docket NumberNo. 89.
Court of Session
2d Division

Ld. Anderson, Lord Justice-Clerk (Scott Dickson), Lord Dundas, Lord Salvesen.

No. 89.
Macgregor
and
Lord Advocate.

Reparation—Crown—Liability of Crown for wrongful act of servant—Action against War Department for negligence of driver of army motor car.

An action of damages does not lie against the Crown in respect of a wrongful act committed by one of its servants.

This rule applied in an action brought by a member of the public against the War Department, and against a sergeant of the Army Service Corps, to recover damages for personal injuries sustained through being run down by a motor car belonging to the Department and driven by the sergeant; and action, in so far as directed against the War Department, dismissed as incompetent.

On 5th November 1920 Duncan Gregor Macgregor brought an action against the Right Honourable Thomas Brash Morison, Lord Advocate, as representing the War Department, and Sergeant Robert Macfarlane, Royal Army Service Corps (Motor Transport), Leith Fort, Leith. The conclusion of the summons was for payment by the defenders, conjunctly and severally, of the sum of £1200, as damages for personal injuries sustained by the pursuer, through being run down by a motor car belonging to the War Department and driven by Sergeant Macfarlane in the course of his duty. The pursuer averred that the accident was entirely due to the fault and negligence of the driver of the motor car.

Answers were lodged by both defenders.

The Lord Advocate pleaded, inter alia;—(1) The War Department not being liable in damages for the wrongful or negligent act of the defender the said Sergeant Robert Macfarlane, the action, in so far as laid against the defender as representing the said Department, is incompetent and should be dismissed.

On 27th May 1921 the Lord Ordinary (Anderson) sustained the first plea in law stated for the Lord Advocate as representing the War Department, and dismissed the action in so far as it was laid against that defender.

Lord Anderson's opinion.—In this case the pursuer sues the defenders, conjunctly and severally, for damages in respect of personal injuries. The pursuer was knocked down and severely injured by a motor car driven by the defender Sergeant Robert Macfarlane, who is a driver in the Royal Army Service Corps. The defender was, at the time, driving the motor car in the course of his duty as a British soldier.

The Lord Advocate, as representing the War Department, pleads that the action, in so far as laid against him, should be dismissed as incompetent. This plea was based on the constitutional principle that a Department of State cannot be sued in an action claiming damages for a wrong. Each Department of State, it was said, is a branch of the Government; the Government, constitutionally, is the Sovereign; and the Sovereign can do no wrong, personally or by any of his Ministers, cognisable in a Court of law.

It was conceded by the pursuer's counsel that this constitutional principle is recognised in England (FeatherENR, 6 B. & S. 257; TobinENR, 16 C. B., N. S. 310; CanterburyENR, 1 Phil. at p. 321; Addison on Torts, (8th ed.) p. 140; Beven on Negligence, (3rd ed.) vol. i. pp. 217, 220). Redress, in England, may be had by a subject against the Crown only where the claim is for implement of a contract, or for damages in respect of breach of contract (ThomasELR, (1874) L. R., 10 Q. B. 31; Windsor and Annapolis Railway Co.ELR, (1886) 11 App. Cas. 607); and then the subject must proceed, not by ordinary action, but by petition of right.

It was maintained, however, by the pursuer's counsel that, in Scotland, this constitutional principle does not apply, but that the Crown may be sued, in the Scottish Courts, in respect of a wrong. As the constitution of Scotland has been the same as that of England since 1707, there is a presumption that the same constitutional principles apply in both countries. The pursuer's counsel was unable to refer me to any case in Scotland where the Crown, or any Department of State, had been sued in respect of a wrong. He founded, however, on these three considerations—(1) that in England no action lies against the Crown, even on contract; whereas in Scotland an action on this ground has always been competent. I was not impressed by this consideration, as I regard the English practice of proceeding by a petition of right to be a mere matter of judicial machinery. The petition presupposes a ‘right’in the subject, which, according to English procedure, falls to be vindicated in that way. (2) The Crown Suits Act of 1857, section 1, was founded on. Reference is there made to actions to be instituted in Scotland on behalf of or against Her Majesty, or on behalf of or against any public department, and it was argued that this enactment thereby recognised that any action might be raised against the Crown or a Department of State. That contention does not appear to me to be sound. The enacting words must, in my opinion, be controlled and modified by the constitutional principle I have alluded to; and the statutory provision is thus confined to those actions which may competently be raised. (3) It was urged that the ordinary rule of the common law fell to be applied whereby a master is made vicariously responsible for the act of an employee performed in the course of his employment. I am not prepared to hold that a soldier, serving the state, is an employee in the sense of this common law...

To continue reading

Request your trial
9 cases
  • Scott and Davidson v Scottish Ministers (No 1)
    • United Kingdom
    • House of Lords
    • 15 December 2005
    ...the Crown could not be brought in the sheriff court. Moreover, belatedly and - in retrospect – unfortunately, in Macgregor v Lord Advocate 1921 SC 847 the Second Division had held that in Scotland too the Crown could not be held liable in 67 In the 1947 Act Parliament set out, inter alia, t......
  • Scott and Davidson v Scottish Ministers (No 1)
    • United Kingdom
    • Court of Session (Inner House - Extra Division)
    • 18 December 2001
    ...by your Lordship in the chair. 32. [6] Junior counsel for the reclaimer, under reference to the authorities of MacGregor v Lord Advocate 1921 SC 847, Adams v Naylor [1946] AC 543 and British Medical Association v Greater Glasgow Health Board 1989 (HL) SC 65, submitted that the principal int......
  • Reclaiming Motion In Petition Of Scott Davidson For Judicial Review Of A Decision To Continue To Detain The Prisoner In Inhuman And Degrading Prison C V.
    • United Kingdom
    • Court of Session
    • 18 December 2001
    ...by your Lordship in the chair. [6]Junior counsel for the reclaimer, under reference to the authorities of MacGregor v. Lord Advocate 1921 S.C. 847, Adams v. Naylor 1946 A.C. 543 and British Medical Association v. Greater Glasgow Health Board 1989 (H.L.) S.C. 65, submitted that the principal......
  • William Beggs (fe) For Judicial Review Of Decisions And Acts Etc
    • United Kingdom
    • Court of Session
    • 9 May 2006
    ...Ltd 1954 SLT 14 McDonald v Secretary of State for ScotlandSCUNK 1994 SC 234; 1994 SLT 692; 1994 SCLR 318 Macgregor v Lord AdvocateENR 1921 SC 847; 1921 2 SLT 174 McKinnon v DouglasUNK 1982 SLT 375; 1982 SCCR 80 McMillan v CarmichaelUNK 1994 SLT 510; 1993 SCCR 943 Muirhead v DouglasUNK 1979 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT