Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Glasgow by Bat Curran, labourer, against Robert M'Alpine &Sons, railway contractors there, in which the pursuer craved decree for £500 at common law, or alternatively for £170 under the Employers Liability Act 1880, as damages for personal injuries sustained by him through the fault of the defenders while he was working in their employment.

The defenders denied liability, but in addition put in a separate statement of facts in which they averred that the defenders had a scheme of insurance whereby, in consideration of a payment by themselves and a contribution by their servants, certain benefits were assured to their employees in the event of their sustaining injuries, that the pursuer was aware of this scheme, and that deductions under it had been made from his wages, that in terms of a notice setting forth the terms of the scheme, which was posted up at the defenders' offices and at their store, it was provided that any workman of defenders by accepting the payments therein provided, discharged his claims at common law and under the Emplovers Liability Act 1880, that the pursuer had received sundry payments from the defenders under the scheme, and that he had thereby discharged “his claims, if any.

The defenders pleaded—“(3) The pursuer having accepted payments from defenders under their scheme as condescended on, has discharged any claims otherwise competent to him under common law or statute, and the defenders should be assoilzied.”

The Sheriff-Substitute (Balfour) on 26th July 1898 issued the following interlocutor:—“Having considered the case, ante omnia, allows the defenders a proof of the averments in their statement of facts annexed to the defences, and to the pursuer a conjunct probation, and appoints the case to be put to the diet roll of 31st August.

The pursuer appealed to the Court of Session for jury trial.

The defenders objected to the competency of the appeal, and argued—This appeal was incompetent— M'Coll v. Gardner &Company, January 12, 1898, 25 R. 395.

Argued for the pursuer and appellant—This appeal was competent Conroy v. A. & J. Inglis, June 4, 1895, 22 R. 620; Robertson v. Earl of Dudley, July 13, 1875, 2 R. 935. The Court of Session Act 1825 (6 Geo. 4, cap. 120) (Judicature Act), section 40,

Page: 239↓

enacted that either party in an action for more than £40 might appeal as soon as an order or interlocutor allowing a proof had been pronounced in the inferior court (unless it were an interlocutor allowing a proof to lie in retentis, or granting diligence for recovery and production of papers). The effect of this was that any interlocutor allowing proof, except those specially excepted, was appealable. This interlocutor was an interlocutor allowing a proof, and was not one of those excepted. The right of appeal was not restricted to the case of interlocutors allowing a proof on the whole case, or upon the merits.