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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Convery v. Lanarkshire Tramways Co. [1905] ScotLR 43_92 (21 November 1905)
URL: http://www.bailii.org/scot/cases/ScotCS/1905/43SLR0092.html
Cite as: [1905] ScotLR 43_92, [1905] SLR 43_92
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
[Sheriff Court of Lanarkshire at Hamilton.
v.
Expenses — Appeal for Jury Trial — Summar Roll Discussion —Preliminary Pleas — Allowance of Expenses in Interlocutor Deciding Preliminary Pleas.
Facts:
A domiciled Irishman living in Ireland raised an action in a Sheriff Court in Scotland against a tramway company operating there, to recover damages, by way of solatium, for the death of his son, who had been killed, he averred, by their negligence. The law of Ireland recognising no claim for solatium, the defenders pleaded, inter alia—(1) The action is irrelevant; (2) no title to sue.
Held that the pursuer's remedy was regulated by the lex loci delicti commissi irrespective of his domicile, and an allowance of issues granted.
Kendrick v. Burnett, November 17, 1897, 25 R. 82, 35 S.L.R. 62, explained and distinguished.
In an action of damages for solatium in which the pursuer had appealed for jury trial, the defenders pleaded, inter alia, no relevant case and no title to sue. After a discussion in the Summar Roll, the Court, in the interlocutor repelling the preliminary pleas, allowed the pursuer the expenses of the discussion.
On 28th March 1905 James Convery, Mag-hara, County Londonderry, Ireland, raised an action in the Sheriff Court of Lanarkshire at Hamilton against the Lanarkshire
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Tramways Company, carrying on business at Power Station, Edinburgh Road, Motherwell. In it he sought to recover a sum of £1000 as reparation and solatium for the death of his son, Andrew Convery, who had died from injuries received by being run over by an electric car at Wishaw on 29th October 1904, the car being the property of the Tramways Company. The pursuer averred that the accident was caused through the fault and negligence of the defenders, or of their servants, for whom they were responsible, in driving the electric car in a reckless and careless manner and at an excessive rate of speed, and in failing to keep a proper look out, and in not giving the deceased warning of the approach of the car. He made no averment of his having been dependent on the deceased man or of any patrimonial loss.
The defenders, inter alia, pleaded—“(1) The action is irrelevant. (2) No title to sue.”
On 13th June 1905 the Sheriff-Substitute (Thomson) allowed a proof before answer, and on 23rd June the pursuer appealed to the First Division of the Court of Session for jury trial. The case was sent to the Summar Roll for the discussion of the question of relevancy and title.
Argued for the defenders and respondents—By the law of Ireland there was no obligation on a son to support his father, and the doctrine of solatium being based on such an obligation did not obtain in Ireland. Though the case of Goodman v. London and North-Western Railway Company, March 6, 1877, 14 S.L.R. 449,
turned on Lord Campbell's Act 1840 (9 and 10 Vict. cap. 93), sec. 3, which provided that all such actions must be raised within twelve months of the death of the erson in respect of whose death they were rought, still the case set forth the principle that the law of the forum and the law of the locus delicti must coincide in affording the remedy sought. Here the injury, consisting of wounded feelings only, was purely personal, and was suffered in Ireland. The claim, moreover, was put forward by one domiciled in Ireland, where the law did not recognise the alleged injury as a wrong, and the law of the domicile of one who seeks reperation must recognise the claim— Kendrick v. Burnett, November 17, 1897, 25 R. 82, 35 S.L.R. 62; Rosses v. Bhagdvat Sinhjee, October 29, 1891, 19 R. 31, 29 S.L.R. 63. Greenhorn v. Addie, June 13, 1855, 17 D. 860, had decided that solatium could not be sued for apart from patrimonial loss, of which there was none here; and Darling v. Gray & Sons, May 31, 1892, 19 R. (H.L.) 31, 29 S.L.R. 910, that it was a peculiar remedy which should be kept within very strict limits. The action was irrelevant and should be dismissed. (The cases of Eistend v. North British Railway Compang, July 13, 1870, 8 Macph. 980, 7 S.L.R. 638; Joseph Evans & Sons v. John G. Stein & Company, November 17, 1904, 7 F. 65, 42 S.L.R. 103, were also cited.)
Argued for the pursuer and appellant—The action was good, irrespective of the lex domicilii, if admited by the lex fori and the lex loci delicti. These laws, i.e., the law of Scotland, concurred in allowing the remedy. The case of Eistend, ut supra, was distinguished by the fact that the obligation arose out of a contract, and that of Kendrick, ut supra, by the fact that the delict occurred on the high seas, and the forum was only attained by the use of arrestments. The principles governing the present case were set forth in Horn v. North British Railway Company, July 13, 1878, 5 R. 1055, 15 S.L.R. 707. The action was relevant.
At advising—
The point, so far as I know, is not covered by Scottish decision, and though the cases quoted at the bar dealt with the law round about it, none dealt directly with it. There is, for instance, the case of Greenhorn v. Addie ( 17 D. 860), with which your Lordships are familiar, but there this actual point was not raised. Indeed, the only case where anything was said that really touches the point is that of Goodman v. The London ana North—Western Railway Company ( 14 S.L.R. 449), though even there the decision of the case did not turn on this point. The point in Goodman was that a pursuer in an action raised in Scotland in respect of an accident in England had no right of action when there was no liability in the place where the accident occurred. The accident had taken place in England, and it was admitted that if the action had been brought in England the pursuer could not have recovered damages owing to the terms of Lord Campbell's Act (9 and 10 Vict. c. 93), because the time limit imposed by that Act had expired before the action was raised. So the point came to be, could the pursuer by founding jurisdiction in Scotland succeed in recovering damages for an accident which occurred in England when no action would have lain in England. But Lord Shand makes an observation which, though a mere dictum, and accordingly to be read secundum subjectam materiam, yet, when examined with its context, makes it plain that his Lordship had this very point clearly in view. What his Lordship says is—“But just as the lex loci contractus must be
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But there is much other authority not cited at the discussion of the case. The matter is dealt with by the well-known authors on international law. I can quote conveniently from Wharton's Conflict of Laws, section 475, where the authorities are collected—“By the Roman law, wherever a delict is committed, whether the stay of the delinquent is permanent or transient, there is the forum delicti. And the local law applicable is and continues to be that of such special forum.” The author then goes on to point out that Savigny, almost alone of famous jurists, takes, as he thinks, the erroneous view that “the law of the place of process is to obtain,' not that of the place where the delict was committed.” Then at section 477 he continues—“Bar distinguishes delicts which call for the restoration or reparation of an injury, and those which call for a fine or penalty payable to the injured party. The first he subjects to the law of the place where the delict was committed. Every person, foreigner or subject, is bound to repair any damage done by him according to the local law.” He adds that the same rule applies in the United States.
We have therefore in these passages a satisfactory general statement of the rule in accordance with Lord Shand's dictum, though no doubt he did not lay down the rule with so wide an application.
This would be sufficient to decide the case, but there is more. In English law we get further light on the position of Englishmen under Lord Campbell's Act. In the case of “ The Explorer” (L.R. 3 A. & E. 289) there is the high authority of Sir Robert Phillimore, and though there is not much said in the judgment, as the point was not the main one in the case, yet the point is decided in terms. Then in the case of Davidson v. Hill ( [1901] 2 KB 606), where there had been a collision on the high seas owing to the negligence of a English ship, it was held that the personal representative of an alien seamen was entitled to recover damages. There is, if I may say so, a very satisfactory judgment by Kennedy, J., assented to by Phillimore, J,, but too long to quote. He points out, however, that in the case of “ The Bernina” ( 1887, 12 PD 58; 1888. 13 A.C. 1), which was a case which went to the House of Lords, the point though not raised was necessarily involved in the judgment. One of the two successful claimants there was Habiba Toeg of Baghdad, the mother of Moses Aaron Toeg, who was killed in an accident at sea owing to the fault of a British ship. The lady got her damages, and though her right was not disputed on the ground of the nationality of herself or her son, it was assumed in her favour that in a case of delict the party in fault must pay for it according to the local law.
The only countenance for any other view rests on nothing better than a misunderstanding of a remark of Lord President Robertson's in the case of Kendrick v. Burnet ( 25 R. 82). That was a case of a collision on the high seas in which an English ship was at fault. The relatives of the persons killed raised actions against the owners, concluding both for solatium and damages. In the discussion it was assumed that all the pursuers were English, and the Court decided that claims could only be for damages alone and not for solatium, as solatium was unknown to the English law. But after the advising some of the defenders put in a minute stating that the assumption was erroneous, as some of the pursuers were Scotch, and accordingly asked for solatium. The Lord President points out that that made no difference. He says—“I may say at once that, as your Lordships know, I had considered the question which we have now to deal with, the question, namely, of the liability of the party doing the injury, where damage results from a collision on the high seas, and there is a difference between the law of the country of the party doing the injury and the law of the country of the party injured, as to the liability arising from the injury. That question, as I have said, was considered by the Court, and if in the opinion I formerly delivered I did not discuss it, it was not from any doubt on the point, but because, misled by the record, I thought the question did not arise in the circumstances of this case. I may now say that I think the true view of the law where a conflict arises in such a case between the law of the country of the person injured and the person doing the injury is that which is stated in one of the articles of the Antwerp Congress of 1885, and the rule is that to found a claim there must be a concurrence between the law of the country of the injurer and the injured—that the person convened as defender cannot be made liable unless these two factors concur: first, that he is liable to the claim made against him by the laws of his own country, and in the second place that the injured would be entitled by the laws of his own country to what he claims.” The article of the Antwerp Congress is as follows:—“L'abordage en plein mer, entre deux navires de meme nationality, est rdgld par la loi nationale. Si les navires sont de nationality diffdrente, chacun est obligy dans la limite de la loi de son pavilion et ne peut recevoir plus que cette loi lui attribue.” That is all quite right, but the mistake arises from the idea that Lord Robertson was speaking of the law of the domicile of the pursuer. But he was speaking of no such thing, but of the law of the flag of his ship. Of course when the collision takes place at sea it is difficult to say on what territory the injury occurs.
But that which Lord Robertson means and the Antwerp Congress says gives no countenance to the view that when a collision occurs between two Scotch ships through the fault of one of them, what a pursuer on the other would recover by way of damages would depend on whether he was English, French, or Scotch.
These remarks of Lord Robertson's are the sole foundation for the quite erroneous view that has been put forward, and there is no trace in the great authorities that the law of the pursuer's domicile has anything to do with it.
I therefore hold that the preliminary pleas should be repelled and the action take its ordinary course, which will be an allowment of issues.
The Court pronounced this interlocutor:—“The Lords having heard counsel for the parties on the defenders‘ preliminary pleas-in-law, Repel said pleas and appoint the issue or issues proposed for the trial of the cause to be lodged within eight days : Find the pursuers entitled to expenses of the discussion in the Summar Roll, and remit,” &c.
Counsel for the Pursuer and Appellant— Burt. Agents— M'Nab & MacHardy, S.S.C.
Counsel for the Defenders and Respondents— Horne. Agent— Patrick & James, S.S.C.