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Cite as: [1906] SLR 43_713, [1906] ScotLR 43_713

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SCOTTISH_SLR_Court_of_Session

Page: 713↓

Court of Session Inner House Second Division.

Wednesday, June 27 1906.

Lord Justice-Clerk Lord Young Lord Trayner Lord Moncreiff

43 SLR 713

M'kenna

v.

The united collieries, Limited.

Subject_1Master and Servant
Subject_2Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), sec. 1 (4)
Subject_3Expenses of Unsuccessful Trial at Common Law and under Employers' Liability Act Deducted from Compensation
Subject_4Expenses after Verdict Applied Allowed to Neither Party — Process.
Facts:

A workman brought an action at common law and under the Employers' Liability Act, but containing no reference to the Workmen's Compensation
Page: 714↓
Act 1897, to recover damages from his employers for injuries sustained when in their employment. A jury returned a verdict for the defenders, whereupon the pursuer moved the Court to assess compensation under the Workmen's Compensation Act 1897. The motion was postponed, and renewed w'hen the case was in the roll . to apply the verdict. The defenders admitting liability, the Court applied the verdict, found the defenders entitled to expenses, and of consent found them liable in compensation under the Workmen's Compensation Act, but there being no evidence on which to assess the compensation, allowed a proof as to the amount. Thereafter parties having agreed as to the amount of compensation due, the defenders moved, under sec. 1 (1) of the Workmen's Compensation Act, to deduct from this their taxed expenses down to the date when the verdict was applied. The pursuer opposed this, and moved for his expenses since that date.

Held that the defenders were entitled to deduct from the award of compensation their expenses as taxed down to the date when the verdict was applied, and thereafter that no expenses were due to or by either party.

Headnote:

The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), section 1, (4), enacts—“If, within the time hereinafter in this Act limited for taking proceedings, an action is brought to recover damages independently of this Act for injury caused by any accident, and it is determined in such action that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under the provisions of this Act, the action shall be dismissed; but the Court in which the action is tried shall, if the plaintiff shall so choose, proceed to assess such compensation, and shall be at liberty to deduct from such compensation all the costs which, in its judgment, have been caused by the plaintiff bringing the action instead of proceeding under this Act. …”

James M'Kenna, a bogieinan, brought an action in the Sheriff Court of Lanarkshire at Hamilton against the United Collieries, Limited, his employers, to recover damages at common law or under the Employers' Liability Act 1880 for injuries sustained by him while in their employment. No reference was made in the record to any claim under the Workmen's Compensation Act 1897. The case was appealed for trial by jury, issues were allowed, and the case having been tried, a verdict was returned for the defenders. Thereupon the pursuer moved the Court under sec. 1 (4) of the Workmen's Compensation Act 1897 to assess compensation under that Act. The motion was postponed, and when the defenders enrolled the case to apply the verdict the pursuer again made the motion. The defenders while admitting liability under the Workmen's Compensation Act maintained that no evidence had been led to enable the Court to assess the amount of compensation. The Court, holding that this was so, applied the verdict, dismissed the action, found the defenders entitled to expenses; further, of consent found that the injury to the pursuer was one for which the defenders were liable to pay compensation to the pursuer under the Workmen's Compensation Act, and allowed the pursuer a proof as to the amount of compensation. The defenders lodged an account of their expenses down to the date when the verdict was applied, and these were taxed at £187, 12s. lid., for which sum decree in their favour was pronounced. Thereafter parties having agreed that the amount of compensation due was 12s. per week lodged minutes to that effect, and the case having been enrolled to give effect to this agreement, the defenders moved under sec. 1 (4) of the Workmen's Compensation Act to be allowed to deduct from the award of compensation their whole taxed expenses down to the date when the verdict was applied. The pursuer opposed and also moved for his own expenses since the date when the verdict was applied.

Argued for the defenders—None of the expenses of the jury trial were incurred in respect of any claim under the Workmen's Compensation Act, of which no mention was made on record. There had been no question fought which could only arise under that Act. The deduction should therefore be allowed— Cattermole v. Atlantic Transport Company, Limited, [1902] 1 KB 204.

Argued for the pursuer—The defenders should have admitted liability under the Workmen's Compensation Act before the expense of the trial had been incurred. The effect of deducting the taxed expenses of the defenders from the compensation would practically nullify the award of compensation. The words of sec. 1 (4) of the Act were permissive, and the Court should not at any rate deduct the whole of defenders' expenses— Hoddinott v. Newton Chambers & Company, Limited,[1901] A.C. 49, at 74; and Cattermole (sup. cit.) In any event pursuer should get expenses since the verdict was applied.

Judgment:

Lord Justice-Clerk—As I tried this case I think it right to say that I considered then that the action was wholly uncalled for, and that there was no ground whatever for the proceedings taken by the pursuer for jury trial. He would have been much better advised if at the beginning he had been content to take his remedy under the Workmen's Compensation Act. It is a matter of discretion for the Court whether the expenses of an unsuccessful trial are to be deducted from a subsequent award of compensation. That is a wise provision of the Legislature, because there might be cases in which no such deduction should be made. But I do not think the Court should take a course which would result in this, that every workman in such cases would be able first to have an expensive jury trial, and then, if unsuccessful in that, to get an award of compensation without being liable in any of the costs of the trial. If we decide this case in the way proposed by Mr Moncrieff it would just be to establish such a principle. I can see no ground whatever for not deducting from the compensation the expenses which have been caused by the pursuer bringing this action instead of proceeding under the Act.

As to the expenses incurred since the trial, this is a novel question, and the discussion which has taken place has been necessary in order that the point might be cleared up. On the other hand the pursuer did not lead any evidence at the trial in support of his claim under the Workmen's Compensation Act as he might have done. I think the proper course will be to deduct from the award of compensation the expenses to which the defenders have been found entitled down to the date when the verdict was applied, and to allow no expenses to either party since that date.

Lord Kyllachy—I entirely agree.

Lord LowI am of the same opinion. The Legislature in the Workmen's Compensation Act conferred on workmen who were injured a very valuable right in the way of giving them compensation, and if a workman who is injured chooses not to take compensation to which he is entitled under that Act, but brings an action at common law with the object of obtaining a larger sum, it seems reasonable he should do so at his own risk.

It would be intolerable if the defenders had both to bear the expenses of successfully defending an action, and also had to pay large sums in compensation under the Workmen's Compensation Act. It seems to me that is just the kind of case which the provisions of section 1, sub-section 4, of the Act were designed to meet. I entirely agree with your Lordships.

Lord Stormonth Darling was absent.

The Court pronounced this interlocutor:—“… Decern against the defenders for payment to the pursuer of compensation at the rate of twelve shillings per week from 31st December 1904, in terms of the Workmen's Compensation Act 1897, under deduction of the sum of One hundred and eighty-seven pounds twelve shillings and eleven pence decerned for by interlocutor of 20th March 1906: Quoad ultra And no expenses due to or by either party.”

Counsel:

Counsel for Pursuer— M'Clure, K.C.— A. Moncrieff. Agents— Simpson & Marwick, W.S.

Counsel for Defenders— G. Watt, K.C.—Horne. Agents— W. & J. Burness, W.S.
1906