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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Adamson v. Fife Coal Co., Ltd [1909] ScotLR 459 (19 February 1909)
URL: http://www.bailii.org/scot/cases/ScotCS/1909/46SLR0459.html
Cite as: [1909] SLR 459, [1909] ScotLR 459
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second Division.
[Sheriff Court at Dunfermline.
v.
Facts:
The Sheriff Courts (Scotland) Act 1907, section 31, makes provision for trial by jury in the Sheriff Court of cases under the Employers' Liability Act 1880, and directs that the verdict of the jury shall be applied by an interlocutor of the Sheriff, which shall be appealable to the Court of Session only on the grounds (1) that the verdict has been erroneously applied, or (2) that it is contrary to evidence, or (3) that the Sheriff had unduly refused or admitted evidence or misdirected the jury, or (4) that their award of damages is inadequate or excessive. Section 32 makes it competent for the Sheriff, where jury trial has been ordered, to fix the question or questions of fact to be put to the jury. By sections 27 and
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28 appeal is competent to the Sheriff and Court of Session respectively against any interlocutor against which leave to appeal has been granted. Held that it was incompetent to bring under review, in an appeal against an interlocutor applying the verdict, an interlocutor fixing the questions to be put to the jury against which leave to appeal had not been asked.
Opinion, per curiam, that an interlocutor adjusting the questions to put to the jury is an interlocutor against which leave to appeal may be granted.
Observed, per Lord Ardwall, that except in the case of a motion made plainly for delay, or other illegitimate purpose, it is the duty of the Sheriff-Substitute to grant leave to appeal against an interlocutor fixing the questions to be put to the jury, that being equivalent to the adjustment of issues in the Court of Session.
Opinion, per the Lord Justice-Clerk, that a verdict cannot be set aside on the ground of misdirection by the Sheriff where no exception has been taken at the trial.
The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51) enacts—section 27—“Subject to the provisions of this Act an appeal to the Sheriff shall be competent against all final judgments of the Sheriff-Substitute and also against interlocutors.… ( d) allowing, or refusing, or limiting the mode of proof, not being an interlocutor fixing a diet for jury trial; ( e) against which the Sheriff-Substitute either ex proprio motu, or on the motion of any party grants leave to appeal.…”
Section 28—“Subject to the provisions of this Act it shall be competent to appeal to the Court of Session against a judgment of a Sheriff-Substitute or of a Sheriff, but that only if … the interlocutor appealed against is a final judgment, or is an interlocutor.… ( c) against which the Sheriff or the Sheriff-Substitute either ex proprio motu, or on the motion of any party grants leave to appeal.…”
Section 31—“In any action raised in the Sheriff Court by an employee against his employer concluding for damages under the Employers' Liability Act 1880, or alternatively under that Act or at common law, in respect of injury caused by accident arising out of and in the course of his employment, where the claim exceeds fifty pounds, either party may, so soon as proof has been allowed,… require that the cause shall be tried before a jury … of seven persons. The verdict of the jury shall be applied in an interlocutor by the Sheriff, which shall be the final judgment in the cause, and may, subject to the provisions of this Act, be appealed to either Division of the Court of Session, but that only upon one or more of the following grounds—(1) That the verdict has been erroneously applied by the Sheriff; (2) that the verdict is contrary to the evidence; (3) that the Sheriff had in the course of the trial unduly refused or admitted evidence or misdirected the jury; (4) that an award of damages is inadequate or is excessive. Upon such appeal the Court may refuse the appeal or may find under head (1) that the verdict was erroneously applied, and give judgment accordingly, or under the other heads before mentioned may set aside the verdict and order a new trial.…”
Section 32—“Where jury trial has been ordered the Sheriff shall, after hearing parties, if he shall think that necessary or desirable, issue an interlocutor setting forth the question or questions of fact to be at the trial proponed to the jury, and fixing a time and place for the trial.…”
William Adamson raised an action in the Sheriff Court at Dunfermline against the Fife Coal Company, Limited, concluding for £250 damages under the Employers' Liability Act 1880 (43 and 44 Vict. cap. 42) for the death of his son Robert Adamson, who was killed on 14th November 1907 while in the employment of the defenders in their No 1 Pit, Dalbeath.
At the time of the accident Adamson along with others was engaged in removing a brick arch in one of the midworkings of the pit, to make room for an engine seat. While this work was being carried on, the arch collapsed, thereby causing his death.
The pursuer averred—“(Cond. 7) The fireman, who also acted as oversman, appointed by the defenders in connection with the pit where the pursuer's said son was working was John Fleming. The said John Fleming was specially appointed by the defenders' manager to give particular attention to the arch and the work generally, because of the unusual nature of the operations and of the danger in working. The defenders' said manager instructed the said John Fleming to see that all the necessary precautions were taken for the safety of the men employed. (Cond. 8) It was the duty of the said John Fleming, before the commencement of the shift on said 14th November, to make an inspection before the 6 o'clock shift began, and to satisfy himself that everything was safe and secure for the workmen to be employed in connection with said work. Whether or not the said John Fleming made the inspection before the commencement of the said shift the pursuer does not know, but the pursuer believes and avers that the said John Fleming did not make any inspection during the course of the shift, and before the deceased went to work on the day of the accident. Alternatively, if he did make said inspection, it was made in such a grossly careless and negligent manner as to be useless. If the said John Fleming had made the inspection which he ought to have done under the Coal Mines Regulation Act 1887 and[certain] special rules [passed in pursuance thereof and in force at the pit] during the course of said forenoon shift, and before the pursuer's son went to work at 2 o'clock, he would have ascertained … that said wall and the arch itself were in such an insecure condition that it was dangerous to allow any workman to proceed to work before ample precautions had been taken for their safety, and it was the duty of the said John Fleming to prevent the pursuer's son and the
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other workmen going to their work until all the requisite and necessary precautions for their safety had been adopted. …. The said John Fleming failed to take any precautions whatever for the safety of the pursuer's son and the other men working there, with the result that the pursuer's said son was killed. (Cond. 10) Said accident was also caused or materially contributed to by reason of the negligence of the said John Fleming, in connection with his superintendence of the dangerous operations in connection with the removal of said brick wall and arch referred to, and the defenders are liable for the said John Fleming's negligence, as fireman and oversman, under subsections 1 and 2 of the Employers' Liability Act 1880.” The pursuer pleaded—“(l) The pursuer's son having been killed while in the employment of the defenders, through defects in the condition of the works and ways in the defenders' said pit, and the said defects being due to the negligence of the defenders or those for whom they are responsible, having been known to or otherwise not having been discovered or remedied owing to the negligence of the defenders or those for whom they are responsible, as condescended on, the pursuer is entitled to damages and solatium under the Employers' Liability Act 1880. (2) Alternatively, pursuer's said son having been fatally injured by reason of the negligence of the said John Fleming, the person appointed by the defenders to superintend the dangerous operations condescended on, whilst in the exercise of said superintendence, the pursuer is entitled to damages and solatium for the death of his said son under said Employers' Liability Act 1880.”
On 30th June 1908 the Sheriff-Substitute ( Hay Shennan), on the motion of the pursuer, directed the cause to be tried by jury, and on 23rd July 1908 pronounced an interlocutor fixing the date of the trial and directing the following questions to be put to the jury:—“It being admitted that pursuer's son Robert Adamson was, on 14th November 1907, while in defenders' employment, killed in the course of his work through the collapse of a brick erection which was being taken down in No. 1 Pit, Dalbeath—(1) Was the accident to pursuer's son caused by reason of any defect in the ways and works in said pit? (2) Was the accident to pursuer's son caused by reason of the negligence of John Fleming, the oversman, in the exercise of his duties as oversman? (3) What is the amount of three years' wages of a person in the same grade of employment as pursuer's son prior to the date of the accident? (4) Assuming the pursuer to be entitled to recover damages, what sum (not exceeding the amount found in answer to question 3) is it fair and reasonable to award him?”
The jury unanimously answered the questions as follows—(1) Yes. (2) No. (3) £273, 15s. 6d. (4) £200.
On 6th October 1908 the Sheriff-Substitute pronounced an interlocutor finding that the verdict fell to be applied in favour of the defenders, and assoilzied them.
Note.—“Pursuer has been given a verdict in his favour to the effect that the accident to his son was caused by reason of defect in the ways and works in the pit. Therefore section 1, sub-head (1), of the Employers' Liability Act 1880 applies. But under section 2, sub-head (1), of that Act compensation in such a case cannot be recovered ‘unless the defect therein mentioned arose from, or had not been discovered or remedied owing to, the negligence of the employer, or of some person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition.’ There is no such finding in the verdict of the jury, and therefore I cannot find pursuer entitled to compensation.”
The pursuer appealed on the following grounds, as set forth in his note of appeal—“( a) That the verdict was contrary to evidence in certain respects. ( b) That the Sheriff-Substitute misdirected the jury in regard to the first question submitted to them … The first question as stated by the Sheriff-Substitute was incomplete, and the Sheriff-Substitute, though called upon at the trial to amend said question so as also to ask the jury if the said defect arose from, or had not been remedied owing to the negligence of the defenders, or of some person in their service entrusted by them with the duty of seeing that the ways and works were in proper condition, refused, because he considered he had no power to do so. This addition to the question was absolutely essential to the justice of the case. Further, the second question was incomplete, inasmuch as it limits the matter of Fleming's negligence to his duties as oversman, while the defenders would have been liable in this action for his negligence as fireman, which negligence was proved. It was essential to the justice of the case that the jury should have been asked to say whether his negligence as fireman had caused or contributed to the accident, ( c) That, in the interlocutor complained of, the verdict was erroneously applied.”
He argued—(1) The questions formulated by the Sheriff could be competently brought under review in the present appeal—Fyfe, Sheriff Court Code, p. 54. The Act made no provision for appeal against an interlocutor setting forth the questions for the jury. The interlocutors (other than final interlocutors) against which appeal was competent to the Sheriff or to the Court of Session were set forth in sections 27 and 28 of the Sheriff Courts (Scotland) Act 1907 (7 Edw.VII,cap.51), and an interlocutor adjust ing the questions for the jury was not mentioned there. The interlocutor in question was an interlocutor fixing a diet for jury trial and was specially excluded from appeal by section 27 of the Act. There was thus no provision for bringing the interlocutor fixing the questions under review at an earlier stage. Further, in adjusting the questions the Sheriff had misdirected the jury, and that was a competent ground of appeal under section 31 of the Act. The pursuer could not have taken exception to the questions at the trial, as he might have
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done had the Sheriff given verbal directions to the jury. (2) The questions put did not exhaust the case made on record by the pursuer. The pursuer was entitled to a verdictif it was established that the accident was due to defect in the ways and works which had not been discovered or remedied owing to the negligence of the defenders, or of some one entrusted by them with the duty of supervision of the ways and works—Employers' Liability Act 1880 (43 and 44 Vict., cap. 42), sections 1 (1) and 2 (1). That ground of liability was not put to the jury, and the first question was incomplete. The second question put to the jury was also incomplete because it limited the ground of liability to the negligence of Fleming qua oversman, whereas he was charged on record with negligence qua fireman, and qua the person appointed by the defenders to superintend the dangerous operation which resulted in the accident. (3) The verdict was erroneously applied, because the answers given by the jury were consistent with the defenders' liability. Counsel also argued that the verdict was contrary to evidence. Argued for the defenders (respondents)—(1) It was not competent to object to the form of the questions put to the jury after the trial had taken place and the verdict had been brought in. The interlocutor fixing the questions might have been appealed to the Sheriff under section 27 ( e) of the Sheriff Courts (Scotland) Act 1907, or leave to appeal to the Court of Session might have been applied for under section 28 of the Act. The pursuer having done neither of these things could not now competently object to the form of the questions. The questions took the place of issues—First Schedule, rule 136—and not of directions, and section 31 (3) did not apply. In any case no exception had been taken at the trial. (2) The questions put to the jury fairly placed the case before them. If question 2 had been answered in the affirmative the pursuer would have got his verdict. Since that question was answered in the negative the verdict must be applied in favour of the defenders. Counsel also agreed that the verdict could not be set aside as contrary to evidence, and cited Kinnell v. Peebles, February 7, 1890, 17 R. 416, per L.P. Inglis, at p. 424, 27 S.L.R. 365.
The first question that was put by the Sheriff-Substitute was a question whether the accident to the pursuer's son was caused by reason of any defect in the ways and works in said pit. Now I am unable to see that there is any real record for that plea, and I am unable to see how there could be. I do not see myself that there was anything of the nature of a defect in the ways and works of the said pit proved at the trial. A particular operation was being carried out which was not of the nature of works or ways of the pit, but a piece of work that required to be done for a special purpose. Well, the jury held upon the questions put to them that there was a defect in the ways and works of the said pit. Having found that, the next question was put for the purpose of ascertaining whether the Employers' Liability Act, section 1, sub-section 2, applied. That subsection says that “Where after the commencement of this Act personal injury is caused to a workman … by reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him whilst in the exercise of such superintendence,”… the workman shall have right to compensation. Now it was, I suppose, with reference to that particular sub-section that the second question was put in the following terms:—“Was the accident to pursuer's son caused by reason of the negligence of John Fleming, the oversman, in the exercise of his duties as oversman?” That is the only question put under which by any possibility a verdict could have been given for the pursuer. If the answer to that had been “Yes,” the question would then have arisen—Was that a verdict for the pursuer? The jury have answered that question in the negative, and that being so, it seems to me to be plain that, assuming this verdict was a verdict on the question which was put by the Sheriff-Substitute—which it certainly was—it is certainly not a verdict for the pursuer, and I think Mr Watt, with his usual candour, admitted that it could not be held to be a verdict for the pursuer. If the pursuer, then, has not got a verdict, he is just in the position of having failed in his case, and the case must be disposed of on the footing that the defender is entitled to absolvitor.
Now, seeing that, the pursuer very ingeniously takes up ground for the purpose of getting rid of that difficulty. The ground he takes up is that the questions are not questions which should have been put to the jury. The Act of Parliament is very specific as to what the duty of the Sheriff is in getting the case prepared for trial. He has a duty under section 32 to consider what questions are to be put to the jury, because in these new cases under this new Act the issue is to be put in the form of questions adjusted by the judge and laid before the jury. Now in doing that he may, if he thinks it necessary, consult the parties, take them into consultation with him, hear what they have to say, and then consider and dispose of the matter, and if he does that it is entirely in the exercise of his discretion. In this case I understand he did so, and having considered what the parties had to say he framed these questions. Now we are told that these are questions upon which the case should not have been sent to trial. In these circumstances it appears to me that it was the duty of the pursuer to have endeavoured to get proper questions adjusted before the trial took place, and that he could have done so by asking the Sheriff-Substitute for leave to appeal the matter if he did not see fit to
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Another technical ground is that the verdict was erroneously applied by the Sheriff-Substitute. I am unable to see that it was. He had before him the finding of the jury in fact, in answer to the second question, and that answer was in the negative, and as I said before, without an affirmative answer to that question no answer to the first question could possibly be effective.
[ His Lordship then dealt with the question whether the verdict was contrary to evidence, and came to the conclusion that it was not.]
Now there is only one other question I need refer to, and that is whether there can be any possibility of setting this verdict aside upon any question of law? I should have expected that in a case of this kind if questions of law arose, they would arise at the trial. There is only one possible way in which such a question can arise, and that is by exception being taken to the course the judge takes at the trial, definitely impugning what was done and definitely stating what he ought to have done,—excepting to what he did and asking for directions in an opposite sense from those he submitted to the jury. Here the case must be taken on the footing that nobody at the trial saw any objection to what the judge said to the jury.
On the whole matter, although I regret it very much in this first case under this Act of Parliament, I see no ground whatever for allowing a new trial in this case.
The Sheriff-Substitute, in the course of his duty under the Act, formulated four questions which were to be laid before the jury. I say nothing about the last two of them. They merely go to the amount of the damages; and though they are inserted as questions, instead of merely being left to the jury upon the evidence, it may possibly have been thought to conduce to clearness to have this set forth in the schedule of questions put to the jury. I have no doubt this is a matter of practice which will settle itself very easily.
As regards the other questions, it is said that they are not properly framed so as to exhaust the case, and that possibilities are left open which ought to have been foreclosed by the questions being expressed somewhat differently. This raises a preliminary point, how far these questions are before us for examination. Now I agree with your Lordship that inasmuch as the pursuer here did not object in the way the statute (as I read it) allows him to object to these questions, he cannot now raise the point as to whether these exhausted the matters in dispute. The pursuer, if dissatisfied with the decision of the Sheriff-Substitute as to the framing of the questions, was entitled, as I read the statute, to ask the Sheriff-Substitute for leave to appeal against the form of the questions. In my view, there was nothing incompetent in the pursuer asking the Sheriff-Substitute's leave to appeal on this point, whether the Sheriff-Substitute had previously applied his mind to the questions at a meeting of the parties or not. Here I understand the questions were adjusted by the Sheriff-Substitute after a hearing. But unless the parties then and there expressed themselves satisfied with them, it was surely competent for either to ask for leave to appeal on the ground that the questions were not satisfactory for the trial of the case.
But taking the questions as they are, the next point is whether any good objections have been stated to them as not exhaustively setting forth all the points to which the jury had to apply their minds. I agree that on a critical examination of the questions in the light of the record they are found to be not very well framed, and not sufficiently detailed. The first question does not seem to me to meet the facts of the case. But the parties have gone to trial upon it; and as the jury affirmed it in the pursuer's favour, we may assume that there was some defect in the ways and works which would found a claim on the part of the pursuer. Then it is suggested that this question as framed was not sufficiently specific, because it did not conclude with a charge of negligence against anyone in the matter of the defects in the works and ways. I do not think this objection is well founded. It seems to me quite a proper way of framing the questions to have one question as to defects causing the accident, and the second question as to liability on the head of negligence. The second question indeed can hardly be regarded as leaving the case to the jury on a satisfactory footing, for it did not set forth each of the alternatives on any one of which the pursuer claimed to succeed. But I think the Sheriff-Substitute would be well within his right and his duty in charging the jury, if he directed them that that question included all the capacities (to
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[ His Lordship then dealt with the question whether the verdict was contrary to evidence, and found that it was not.]
In that state of matters we are asked to hold that the verdict has been erroneously applied by the Sheriff-Substitute. Now, taking in the first place these questions and answers as they stand, I cannot say they have been erroneously applied. The answer to question 1 involves no liability upon the employer unless the defect was caused through the negligence of some person whose duty it was to look after the works and ways, and when we come to the second question the jury answer that in the negative. Answering that in the negative, they negative the only statutory ground which is set forth in these questions sufficient to infer liability on the part of the defenders, and therefore I do not see that the Sheriff-Substitute had any option but to enter this up as a verdict for the defenders, it being impossible to enter it up as a verdict for the pursuer.
But it became apparent before the discussion on the appeal before us had proceeded very far that the real question sought to be raised here was this—Whether this Court should now order a new trial on account of the erroneous terms in which the questions were framed. I was at a loss to understand how such a ground for upsetting the verdict of a jury came to be presented to this Court, but in a textbook referred to during the discussion I find this observation. The commentator, Mr Fyfe, a Sheriff-Substitute of Lanarkshire, says this in a treatise upon the Sheriff Courts (Scotland) Act 1907—“It is conceivable also that after a jury cause has been closed, and taken to the Supreme Court on appeal, a new trial might upon occasion have to be ordered because of a question having been erroneously expressed.” Now, how any person who had studied the Sheriff Courts (Scotland) Act 1907 could have put in writing such a misleading observation as that passes my comprehension. It is settled by section 31 of the Act that the only grounds on which there is an appeal to the Court of Session against an interlocutor of a sheriff applying a verdict of a jury are the four there mentioned. The section of the Act deserves careful attention, because it seems to me that it clearly excludes the Court from interfering with the verdict of a jury in the Sheriff Court on any other ground. It runs thus—“… [ His Lordship read section 31 of the Act, quoted supra.]…”
Now these are the words of the Act of Parliament, and they are perfectly distinct. It is “only” upon one or more of the four specified grounds that an appeal to the Court of Session is allowed, and they appear to me to preclude the Court from taking up any question whatever as a ground for upsetting the verdict of a jury except the four there mentioned. I therefore hope no one will be misled in future by the passage on page 54 of the book which I have referred to.
But it was argued that if the Sheriff-Substitute goes wrong in adjusting the questions under section 32 of the said Act there is no remedy. Well, I am afraid upon the words of the Act that if the Sheriff-Substitute refuses leave to appeal against his interlocutor settling the questions, there is no remedy. That is the effect of the Act, and this same commentator to whom I have already referred seems to claim for the Act a great amount of wisdom on account of this very provision. This is what he says on page 53 of his Commentaries—“These questions take the place of the ‘issue’ of Court of Session practice. But there is no appeal as upon the adjustment of issues—(the stage of a jury cause where delay and expense may be most readily occasioned).” So the astonishing reason—if I may say so—for
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[ His Lordship then dealt with the question whether the verdict was contrary to evidence, and came to the conclusion it was not.]
I do not think I need say anything upon the other questions that have been raised. I concur in what was said by my brother Lord Pearson, that under Rule 144 in the Schedule to the Sheriff Courts (Scot-land) Act 1907 it is unnecessary to put a question as to amount of damages, because this form of verdict is prescribed, viz., “The verdict of the jury shall be returned in the form of specific answers to the questions proponed by the Sheriff, with the addition of a statement of the amount at which they assess the damages, in the event of damages being awarded.” The amount of damages accordingly did not require to be put in the questions at all.
On these grounds I am of opinion that this verdict cannot be interfered with, and that we must affirm the judgment of the Sheriff-Substitute.
The Court dismissed the appeal.
Counsel for the Pursuer (Appellant)— Watt, K.C.— Munro. Agent— D. R. Tullo, S.S.C.
Counsel for the Defenders (Respondents)— Hunter, K.C.— Horne— Strain. Agents— W. & J. Burness, W.S.