Winchester v Ramsay
| Jurisdiction | Scotland |
| Judgment Date | 10 December 1965 |
| Date | 10 December 1965 |
| Docket Number | No. 7. |
| Court | Court of Session (Outer House) |
OUTER HOUSE.
Lord Kissen.
Process—Proof or jury trial—Action of damages for personal injuries—Third party notice—Third party disputing pursuer's case and defender's claim to indemnity—Avoidance of two separate enquiries—Court of Session Act, 1825 (6 Geo. IV, cap. 120), sec. 28—Evidence (Scotland) Act, 1866 (29 and 30 Vict. cap. 112), sec. 4—Rules of Court, 1965, Rule 85 (e).
The Rules of Court, 1965, by Rule 85 (e), enact:—"Where enquiry by way of proof or jury trial is necessary between the parties to the action …, the Court may allow the case so far as directed against the third party to proceed to proof, or jury trial, along with the action between the pursuer and the defender, or separately therefrom, or may deal with the matter otherwise as in its discretion it thinks fit …"
In an action of damages for personal injuries at the instance of a passenger in a lorry against the driver's employer, the defender called as a third party an insurance company, averring that they were bound to indemnify him against liability for any damages and expenses awarded to the pursuer. The defender admitted on record that the pursuer was in his employment and was travelling in the lorry in the course thereof. The insurance company denied liability to indemnify and averred that such liability could only arise if (which they denied) the pursuer's loss arose out of and in the the course of his employment with the defender. The insurance company further disputed the merits of the pursuer's case, and pleaded, inter alia, contributory negligence by the pursuer andvolenti non fit injuria.
It was contended for the pursuer that notwithstanding that the appropriate mode of enquiry in the secondary dispute between the defender and the third party on indemnification was proof before answer, the pursuer had a statutory right to a jury trial which must prevail unless special cause was shown, that there was no "special cause" sufficient to deprive him of his statutory right, and that in any event, if the method of inquiry depended on the discretion of the court under Rule 85 (e), the court should exercise its discretion to allow a jury trial and a separate proof before answer.
Held, by the Lord Ordinary (Kissen), that the discretion granted to the court by Rule 85 (e) had effectively superseded the pursuer's statutory right in all cases where third party procedure had taken place, and, in the exercise of that discretion, that the appropriate mode of enquiry, in the circumstances, was a proof before answer on the whole case.
Thomson v. Glasgow Corporation, 1962 S. C. (H. L.) 36,Lord Reid at p. 67, referred to.
Observed that the circumstances leading to that exercise of discretion would in any event have amounted to special cause for sending the case to proof before answer, having regard to the desirability of avoiding two separate enquiries into the same facts and to the complications caused by the third party's intervention and in particular their defence of volenti non fit injuria.
Dennis William Winchester brought an action of damages for personal injuries against Alexander Ramsay. The defender called the Caledonian Insurance Company as a third party, on the ground that the company was bound to indemnify him against liability to the pursuer.
The following narrative of the circumstances of the case and of the pleadings of the parties is taken from the opinion of the Lord Ordinary:—"In this action the pursuer, who is a minor and sues with the consent of his father, sues the defender for damages of £3500 as reparation for injuries which he sustained in an accident on or about 22nd February 1963. The defender has called in an insurance company as a third party on the ground that they are bound to indemnify him against liability for damages and expenses, if any, which may be awarded to the pursuer against him.
"The factual basis of the pursuer's case against the defender is, briefly, that on 22nd February 1963, he was a passenger in a motor lorry owned...
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