Scottish Court of Session Decisions

Lord President—This is a stated case arising under the Workmen's Compensation Act. The point is whether the Sheriff-Substitute was right in dismissing the application as incompetent. The application is made for decree against two separate persons specified, “ordaining them jointly and severally, or severally, or in such proportions between them as to the Court should seem just” to pay a certain sum to the applicants. The applicants are the widow and family of a deceased man, William Herd, who met his death by falling from a scaffold erected on the roof of the premises of the respondents R. & W. Cuthbertson, he being at the time engaged in repairing these premises. The premises of R. & W. Cuthbertson were a factory. But Herd was not in their employment in the ordinary sense of the word. He was in the employment of the respondent James Summers, who had undertaken to repair the roof of R. & W. Cuthbertson's premises.

The application is directed against R. & W. Cuthbertson and Summers with the prayer I have quoted. The reason of the Sheriff-Substitute for dismissing the application is quite concisely stated by him in a single sentence as follows—“I held that, as a party seeking compensation under the said Act must ask it from an ‘undertaker,’ the applicant before coming into Court must elect his undertaker.” I am of opinion that the Sheriff was right. It is not every employer who is liable under the Workmen's Compensation Act, but only employers who are within the meaning of undertaker as defined in the statute. Although there is a provision in section 4 of the Act dealing with sub-contracting, there is no provision in the Act for joint and several liability. That being so, I would have had no hesitation in saying that the Sheriff-Substitute was right except for the consideration, which at one time I thought might affect the matter, that, as this was a summary

procedure by way of arbitration, it might

be allowed to proceed against one of the respondents although it was clear on the face of the pleadings that the applicant had no case against the other respondent. I am satisfied, however, that the Sheriff was right in dismissing the application. This is not the only case that may occur. If the Sheriff had opened the door to persons acting in this way there might be a great deal of unnecessary litigation. It would be mala praxis to have persons convened into Court, leaving it to the Court to determine against which of them a good action lay. A party must determine against whom he has a remedy before he brings his case into Court.

Lord Adam—This is a case under the Workmen's Compensation Act arising out of a fatal accident to a workman William Herd. At the time of the accident Herd was in the employment of one of the respondents, Summers, who was engaged in repairing the premises of the other respondents R. & W. Cuthbertson. By this claim the appellants have brought into Court both Summers and R. & W. Cuthbertson, and ask decree against them “jointly and severally, or severally, or in such proportions between them as to the Court should seem just.” The grounds of claim are set forth in averments 6 and 7— [His Lordship quoted the appellants' averments 6 and 7]. The Sheriff has not considered the merits. He has not indeed applied his mind to the facts of the case or to the question whether both or either of the respondents are liable. He dismissed the action as incompetent on the ground that an applicant for compensation under the Act must elect his undertaker before coming into Court.

The primary purpose of the Act is—when a workman is killed or injured by accident in an employment to which the Act applies—to make his employer liable to pay compensation to himself or his dependants. There is only one case, so far as I know, where a workman has a claim against anybody else than his direct employer. That is the case dealt with in section 4 of the Act. The effect of that section appears to me to be that when in an employment to which the Act applies, the undertakers, as defined by the Act, contract for the execution of any work, and an accident occurs in the execution of the work which gives the workman a claim to compensation against his employers, it also gives him a claim against the undertakers as if he had been immediately employed by them. It, however, in no way interferes with his claim against his direct employer. It only gives him a right to claim his compensation from a second party if he so pleases.

I see nothing, accordingly, in this section, nor indeed in any part of the Act, which can give rise to a claim of joint or several liability, and as regards several liability it is clear to me that the workman cannot get decree for the same compensation both against his direct employers and against the undertakers. I think he must elect to proceed against one or other. It is true that if he elects to proceed against the undertakers they may have a right of relief against the employers, as is shown by the cases of Cooper & Crane v. Wright and Topping v. Rhind, but that is a matter with which the workman has no concern. The Act has put the undertakers in the same position as regards the workman as if they had been his direct employers, and I think the Sheriff was right in holding that the workman is bound to elect whether he will seek to recover the compensation due to him from them or from his employer.

Accordingly I think the appeal should be refused.

Lord M'Laren—I think it is quite clear that there can be no claim against Messrs

R. & W. Cuthbertson, whose premises were in course of repair. There is not the shadow of an argument for preferring such a claim under the Workmen's Compensation Act. The language of the 4th section, which excludes work merely ancillary or incidental to the trade or business carried on by the undertaker, would by itself be sufficient to render a claim against them incompetent.

I must confess that my first impression was that the claim against Cuthbertson might be dismissed, leaving the claim against Summers to be determined by the arbitrator, but on consideration I concur most fully in the views expressed by the Lord President and by Lord Adam. For I am of opinion that there can be no joint and several liability under the Workmen's Compensation Act.

On a careful reading of section 4 I think that where a workman proceeds against the undertaker in the sense of the Act, instead of against his own employer, it results that the undertaker shall have relief against the other party liable. Now if the workman were allowed to proceed against both parties and to get a decree against both, what would become of the right of relief?

It seems to me that it would be very inadvisable and embarrassing to allow duplicate claims of this kind to go before an arbiter.

While I think that if this were an ordinary action concluding against two defenders jointly and severally, or severally, there might be ground for separating the claims, it appears to me that in the present case such a proceeding would be at variance with a fundamental principle of the Act—that a workman must proceed either against the undertaker or against his own employer, but not against both.

Lord Kinnear—I am of the same opinion, and think that the Sheriff-Substitute has put his decision on the right grounds.

I agree with all your Lordships that no joint and several liability is contemplated by the Act. Apart from the provision as to sub-contracting, with which we are not concerned at present, the only person liable is the employer, who is the undertaker in the sense of the Act.

That would be a sufficient reason for dismissing a claim based on an averment of joint and several liability. In the present case, however, there did arise a question whether it would not be more convenient to separate the claims agaist the two defenders, and to dismiss the one which seems plainly unfounded, and to entertain the other and dispose of it on its merits, but I agree that it would be extremely inexpedient to take that course, because the probable effect would be to complicate instead of to simplify the procedure in the Court of the arbitrator.

There is nothing in the Act to relieve a workman or his dependents of the obligation to aver a relevant case against the “person whom they bring into Court.

The Sheriff-Substitute says that the party

claiming compensation must seek it from the undertaker in the sense of the statute, and that he must before coming into Court make up his mind who that undertaker is, and bring his claim against the person whom he maintains to be liable. I agree with the Sheriff, and am not disposed to countenance the notion that a workman may call two or more persons into Court on the allegation that one or either of them, but he cannot say which of them, may be the undertaker in the sense of the statute.