Scottish Court of Session Decisions

The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51) enacts—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 or within six days thereafter, require that the cause shall be tried before a jury.… The verdict of the jury shall be applied in an interlocutor by the Sheriff, which shall be the final judgment in the cause. …”

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, being not sooner than fourteen days from the date of the interlocutor.”

First schedule, section 146—“Any party in the cause may … move the Sheriff to apply the verdict… As soon as practicable the Sheriff shall issue an interlocutor applying the verdict, and grant decree accordingly.…”

Hugh M'Vicar, grain weigher, Suffolk Street, Glasgow, brought an action of damages for personal injuries in the Sheriff Court at Glasgow, against his employers John Robertson & Son, grain weighers and stevedores, Princes Dock, Glasgow.

On pursuer's motion the Sheriff-Substitute ( Fyfe) appointed the cause to be tried by jury.

On 14th July 1909 the Sheriff-Substitute appointed seventeen questions to be proponed to the jury. At the trial the jury returned a verdict in which they answered the questions proponed to them.

On 25th November 1909 the Sheriff-Substitute pronounced this interlocutor—“Having heard parties' procurators upon defenders' motion to apply the verdict of the jury, finds that the facts as admitted by the parties or found by the jury are … [ Here followed a number of findings in fact] … Upon these facts finds in law that in respect the answers returned by the jury to the questions proponed to them do not support the case laid on record under the Employers' Liability Act 1880, the verdict is for the defenders: Applies the verdict accordingly, reserving to the pursuer any rights competent to him under section 1 (4) of the Workmen's Compensation Act 1906: Therefore dismisses the action: Finds the defenders entitled to expenses,” &c.

On 2nd December 1909 the pursuer appealed to the Second Division of the Court of Session on the ground that the verdict was contrary to evidence.

At the discussion counsel for the defenders drew the attention of the Court to the fact that the Sheriff-Substitute's interlocutor applying the verdict contained findings in fact, and argued that this was incompetent, on the ground that under the Act the facts of the case as found by the jury exhausted the cause, and the Sheriff had no power to apply the verdict on facts found by himself.

On 10th February 1910 the Court in refusing the appeal pronounced the following interlocutor:—

“Recal the findings in fact in the … interlocutor from the words ‘finds that the facts as admitted by the parties' down to and including the words ‘upon these facts,’ in respect that such findings are incompetent: Quoad ultra refuse the appeal, and adhere to the said interlocutor: Find and determine in terms of section 1, sub-section 4, of the Workmen's Compensation Act 1906, that the injury to the pursuer is one for which the defenders would have been liable to pay compensation under the provisions of the said Act, and remit to the Sheriff to determine the amount due to the pursuer under and in terms of the said Act, and decern: Find the defenders entitled to additional expenses,” &c.