Scottish Court of Session Decisions

James Robertson, ovensman, Inverleith Mains, Edinburgh, brought this action against S. Henderson & Sons, Limited, biscuit makers, Edinburgh, concluding for the reduction of (1) a letter of offer dated March 23rd 1900, addressed by the agent of the pursuer's father, who as such was the pursuer's curator and administrator-in-law, to the agent of the defenders, and a letter of acceptance of the same date addressed by the agent of the defenders to the agent of the pursuer's father as aforesaid; and (2) a receipt and discharge dated March 30th 1900 granted by the pursuer and his father as his curator and administrator-in-law in favour of the defenders.

Prior to October 2nd 1903 the pursuer was an ovensman in the employment of the defenders at their biscuit works.

On 2nd November 1899, when the pursuer was attending to a dough-breaking machine in the said biscuit-making premises, and in the defenders' employment, his right hand was caught between the rollers of the said machine and seriously injured. It was found necessary to amputate the third and fourth fingers, and although the two remaining fingers were saved they became contorted and fixed in a flexed position, and will remain so permanently. The pursuer has thus to a great extent lost the use of his right hand through said accident, and was otherwise injured. At the time of the accident the pursuer was in receipt of an average weekly wage of 29s. 9d., which nominally included 4s. 9d. as for overtime, which, however, he regularly had in his said employment. The defenders agreed to pay him compensation under the Workmen's Compensation Act at the rate of 12s. 6d. weekly, and they made said weekly payments accordingly from the date of the accident down to the date of the receipt and discharge under reduction in this action. In or about the month of March 1900 the pursuer was so far

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recovered as to be able to work, and he inquired of the defenders whether they would take him back into their employment. They agreed to do so, but refused to give him more than £1 per week of wages to begin with.

The pursuers averred that proposals were made for a settlement of the compensation due to the pursuer by the defenders, and that the defenders agreed, as he understood, to pay pursuer the sum of £25, and a sum of £5, 5s. of expenses, and to keep him in their employment, and he stated that he now ascertained that there was no such obligation undertaken by the defenders.

The terms of the settlement were expressed in the letter of Mr Charles Irvine, S.S.C., the agent of Alexander Robertson, pursuer's father and curator and administrator-in-law, to Mr R. S. Rutherford, Solicitor, agent for defenders, dated 23rd March 1900, in the following terms:—“With reference to your call yesterday, I have now seen my clients, and have got them to agree to settle on the lines you indicated to me, viz., £25 to the lad, and £5, 5s. of expenses. If, therefore, you will kindly send me your cheque and a receipt, I will undertake to get the letter signed by the lad and his father. I accept your assurance that while your clients cannot guarantee a permanent situation, they will do all in their power to keep him in their employment.” And in the letter of the same date from Mr Rutherford, the defenders' agent to Mr Irvine, in the following terms:—“I have your letter of 23rd inst., in which you state that your clients are prepared to accept £25 and five guineas of expenses in discharge of all claims against Messrs Henderson & Sons, Limited, which offer I now accept on behalf of Messrs Henderson & Sons, Limited. I shall send you the discharge to-morrow to be signed by your client and his father. I shall send a copy of your letter to Messrs Henderson & Sons, Limited, and draw their attention specially to the latter part of the letter.”

These letters were the documents first sought to be reduced.

Thereafter a receipt and discharge for the sum above mentioned was prepared by the defenders' agent and signed by the pursuer's father as his curator or administrator-in-law, and the pursuer also, at his father's request, signed the receipt and discharge on 30th March.

The receipt and discharge, which was the document second sought to be reduced, was in the following terms:—“I, James Robertson, residing at ten Wardlaw Place, Gorgie Road, Edinburgh, with consent and concurrence of my father, Alexander Robertson, residing there, as my curator and administrator-in-law, do hereby acknowledge to have received now and formerly from Simon Henderson & Sons, Limited, Grove Biscuit Factory, Edinburgh, the sum of thirty-eight pounds, two shillings and sixpence sterling, together with the further sum of five pounds, five shillings sterling in settlement of my agent's fee, making in all the sum of forty-three pounds, seven shillings and sixpence sterling, in full payment and satisfaction of all claims at my instance against the said company in respect of injuries sustained by me, the said James Robertson, to my right hand in their factory on or about the third day of October Eighteen hundred and ninety-nine, and in particular of all claims for compensation competent to us against the said Simon Henderson & Sons, Limited, at common law, under the Employers Liability Act 1880 and the Workmen's Compensation Act 1897, all of which claims are, with the consent and concurrence of the said Alexander Robertson, hereby discharged: And I, the said Alexander Robertson, warrant the above discharge at all hands.” —[ Here followed testing clause with signatures of pursuer and his father, and the witnesses].

This discharge and receipt was sent to the defenders' agent and payment of the sum above mentioned was received.

The pursuer further averred as follows:—“(Cond 5) Prior to the said pretended settlement the defenders' manager stated to pursuer's father, referring to pursuer, that ‘his work was there for him,’ and that he would get back his old situation. The pursuer's father when he signed the said receipt and discharge was under the belief, induced by the defenders, that the defenders could not dismiss pursuer, and had agreed to keep him in their service so long as he wished to work there. But for that he would never have signed the said discharge… . (Cond. 6) Upon said payment of £25 being made, the pursuer returned to the defenders' employment at the wage of £1 weekly for the period of one year. Thereafter he was instructed to resume the work of an ovensman, and his weekly wage was increased to 22s. Owing to the crippled state of his hand he was unable to work with his former skill and was also slower at his work, but he continued to discharge his duties faithfully and to the best of his ability and performed the full work of an ovensman until 2nd October 1903, when the defenders, in breach of the undertaking come to before condescended on, and without any true cause or any reason assigned, dismissed him from their employment on a week's notice… . (Cond. 7) The pursuer was at the date of signing said receipt and discharge a minor. He was born on 10th December 1880. The said pretended agreement and receipt and discharge were executed and granted to his great hurt and lesion. At their date he was entitled in perpetuity, or until commuted, in terms of the Workman's Compensation Act 1897, to such weekly compensation up to the half of his weekly wage prior to the accident as would bring his present earnings up to the amount of his former earnings. After his injury it would have been impossible for him to obtain employment in the open market at his former work. The crippled condition of his right hand has greatly restricted the classes of employment open to him, and

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such work as he could do is very difficult to obtain… . (Cond. 8) By the said pretended settlement and discharge the pursuer has suffered great loss and lesion. The sum paid in respect of it is grossly insufficient compensation for the loss of wages which the pursuer has suffered and would continue to suffer under employment at the rate of wages paid him by the defenders from the time of his resuming work after his injury until his dismissal.”

The pursuer pleaded—“The said arrangement embodied in the letters of offer and acceptance and the said pretended receipt and discharge having been made and executed by or on behalf of the pursuer while in minority, and to his great hurt, prejudice, and lesion, decree of reduction should be pronounced as concluded for, with expenses.”

The defenders pleaded, inter alia, as follows:—“1. No relevant case. 4. The defenders are entitled to absolvitor, in respect ( a) that the documents challenged concluded a fair and reasonable settlement of a doubtful claim at the pursuer's instance; ( b) that said documents were acted upon as binding upon pursuer and defenders both prior and subsequent to the pursuer's majority; ( c) that the pursuer is barred personali exceptione from now challenging them; and ( d) that restitutio in integrum is now impossible.

On 10th March 1904 the Lord Ordinary ( Kincairney), before answer, allowed the pursuer a proof of his averments on record and to the defenders a conjunct probation.

Opinion.—“I am of opinion that this case is relevant and must go to proof. I do not appreciate the argument that the plea of minority and lesion does not apply because the settlement was of an alimentary claim. I do not see why it should be said to be of an alimentary claim; and I have not been able to see the application of the cases quoted. I think that lesion is relevantly averred. Whether it will be proved is a different matter; and as to that there may be difficulties. There need be no difficulty about restitution, which will only consist in repayment of the sum paid with interest; and decree of reduction will not be pronounced unless restitution is provided for.”

The defenders reclaimed, and argued—The settlement and discharge were carried out in accordance with the provisions of the Workmen's Compensation Act 1897, which expressly brought the parties into the position of making an agreement as a competent mode of determining the amount of compensation (sec. 1 (3)), and besides giving full effect to any agreement entered into (Second Schedule, 14 ( b)), provided that any sum awarded as compensation shall be paid on the receipt of the person to whom it is payable under any agreement … (Second Schedule, 12). The agreement and receipt of the person to whom the money is paid are thus made final, and this action was incompetent as being a device to get behind the means provided by the Act for effecting a settlement. The doctrine of minority and lesion did not apply in cases when the minor and the person with whom he contracted were put by statute into the position of being compelled to contract with one another. The averments of lesion were necessarily irrelevant, since the fact of the existence of lesion was ascertainable only by the award of an arbiter, and the Court were not in a position to speculate as to what amount of compensation an arbiter might have awarded. The question of whether there was lesion was a question of fact which could not now be ascertained, and further, it was a ground for refusing reduction that restitutio in integrum was now impossible—Bell's Com. (M'L. ed.), i. 129, 130, 131; Galbraith v. Lesly, 1676, M. 9027; Heddel v. Duncan, June 5, 1810, F.C.; Jack v. North British Railway Company, December 17, 1886, 14 R. 263, 24 S.L.R. 211; Cooper v. Cooper's Trustees, January 9, 1885, 12 R. 473; February 24, 1888, 15 R. (H.L.) 21, 22 S.L.R. 314, 25 S.L.R. 400.

Argued for the pursuer and respondent—This was not a mere agreement of discharge of claims under the Workmen's Compensation Act; it included much else. But even regarded as an agreement under that Act there was no incompetency in reducing the settlement and discharge on the ground of minority and lesion, as the provisions of the Act referred to by the reclaimers assumed the existence of an agreement valid at common law, and the pursuer averred that there was here no such valid agreement. In order to ground an action of reduction on the ground of minority and lesion, it was unnecessary to show the exact amount of lesion. It was enough to show enorm lesion, namely, substantial prejudice. In this case there clearly had been substantial prejudice, for it was to be presumed that an arbiter would act reasonably in fixing compensation—Ersk. i, 7, 34; Bell's Princ., sec. 2100; Dennistoun v. Mudie, January 31, 1850, 12 D. 613; Cochrane v. Trail & Sons, November 1, 1900, 3 F. 27, 38 S.L.R. 18.

At advising—