Scottish Court of Session Decisions

The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), section 31, which is the first of three sections under the general heading “Jury Trial in Sheriff Court,” enacts—“…..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 may set aside the verdict and order a new trial, provided that if the judges are equally divided in opinion the verdict shall stand.”

William Forbes Taylor, carter and labourer, minor son of and residing with John Taylor, carter, 6 Market Street, Wick, with consent and concurrence of the said John Taylor as his curator and administrator-in-law, raised an action in the Sheriff Court at Wick against George Sutherland, engineer, Wick, in which he claimed £250 damages at common law for personal injury sustained while in the defenders' employment and through his alleged fault, or, alternatively, £150 under the Employers' Liability Act 1880.

The pursuer and defender made, inter alia, the following averments and answers — “(Cond. 2) The pursuer on or about 6th October 1908 was employed by the defender as an engineer or labourer at a weekly wage of 7s. with board and lodgings, his special employment being to accompany one of the defender's threshing mills where-ever it might be required, and to be employed in connection therewith. (Ans. 2) The pursuer was employed as a labourer, not as an engineer. Quoad ultra admitted. (Cond. 3) On or about 23rd October 1908 the pursuer was engaged in the employment of the defender in placing one of the defender's threshing mills on a trolley at Lairg Railway Station, and that under the personal directions and superintendence of the defender. The threshing mill having been placed on the trolley, the pursuer was requested by the defender to assist the defender and others in pushing the said trolley a short distance along the rails at said station. A truck containing coals was standing on the rails at said railway station a short distance in front of the said trolley, and the defender directed the pursuer and the others assisting him to push the said trolley along the rails with sufficient impact to drive the said truck containing coals forward along the said rails. The said threshing mill was not fastened in any way on the said trolley, and this was well known to the defender. When the said trolley was pushed along the said rails according to the directions of the defender it came into violent contact with the said truck containing coals, and in consequence the said threshing mill was thrown out of position, one of the hind wheels thereof coming into violent contact with the pursuer's left hand which had been partially placed over an upright iron band on the side of the said trolley, resulting in the third finger of the pursuer's left hand being completely severed at the second joint, and the fourth finger of his left hand also being completely severed at the first joint. The defender's statement in answer is denied. (Ans. 3) Admitted that on the date mentioned the pursuer John Taylor had been engaged in the employment of the defender in placing one of his threshing mills on a truck at Lairg Railway Station under the directions and superintendence of the defender. Quoad ultra denied. Explained and averred that the pursuer John Taylor got his fingers injured after he had finished assisting defender to place, the said threshing machine on said truck and while he was voluntarily assisting the Highland Railway officials to move said truck. Believed and averred that in any event said injuries were caused through the said John Taylor negligently and carelessly placing himself in a position of danger, and in which he remained after being warned of said danger. (Cond. 4) The pursuer's said injuries were caused by the fault of the defender. It was gross fault on his part to order the pursuer and his other workmen to push the said trolley against the coal truck without first having securely fastened the threshing mill to the trolley. He knew that the pursuer was, and had to be, owing to the position he was placed in by defender, in such a position that if the threshing mill moved it would injure him, and that the trolley coming into contact with the truck would cause the threshing mill to move. The pursuer was young and

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inexperienced and was not aware of the danger, which, however, was known to defender. The pursuer's injuries were the direct natural and probable result of defender's fault. The defender is thus liable in damages at common law. And further, he is liable under the Employers' Liability Act 1880, section 1, sub-section 1, in respect that the accident was caused by reason of a defect in the condition of the plant connected with and used in the business of the defender, such defect being due to the defender's own negligence as aforesaid. (Ans. 4) Denied.”

The pursuer pleaded, inter alia—“(1) The pursuer having been injured as condescended on through the fault and negligence of the defender is entitled to compensation in respect thereof at common law. (2) The pursuer having been injured through a defect of the condition of defender's plant as condescended on, the defender is liable under the Employers' Liability Act 1880.”

The defender pleaded, inter alia—“(2) The averments of the pursuer being irrelevant and insufficient to support the conclusions in the action, the action ought to be dismissed with expenses.”

On 26th January 1909 the Sheriff-Substitute ( Stuart) pronounced this interlocutor — “Finds that the pursuer has stated no relevant case under the Employers' Liability Act 1880, and to that extent and effect sustains the defender's second pleain-law and dismisses the action so far as laid under said Act: Quoad ultra repels said plea-in-law, allows parties a proof of their averments, and to pursuer a conjunct probation.”

The pursuer lodged a minute asking for jury trial, and on 8th February 1909 the Sheriff-Substitute pronounced this interlocutor—“Appoints the cause to be tried before a jury in terms of the Sheriff Courts (Scotland) Act 1907, section 31, and further appoints parties to be heard upon the questions of fact proposed by them to be submitted to the jury.”

On 16th February 1909 the Sheriff-Substitute pronounced this interlocutor — “Appoints the following questions as the questions of fact to be proponed to the jury, viz., (1) Whether by an accident at Lairg Railway Station on 23rd October 1908 the first — named pursuer sustained injuries to the fingers of his left hand? (2) Whether the first-named pursuer was in the employment of and performing work for the defender, and acting under his instructions at the time when he received the said injuries? (3) Whether the said injuries were caused by the fault or negligence of the defender, and if so, in what did that fault or negligence consist? (4) Whether the said injuries were caused, or at least materially contributed to, by the pursuer's own fault or negligence? (5) Damages laid at £250.”

The case was tried on 12th and 13th March 1909, when the jury returned the following verdict:—“The jury unanimously answer the questions proponed to them by the Sheriff-Substitute in his interlocutor dated 16th February 1909 as follows, viz., the first question in the affirmative; the second question in the affirmative; the first part of the third question in the affirmative, in respect that the defender in assisting the railway company in shunting the trolley on which the mill was placed, failed to explain to the pursuer that it was no part of his duty to assist in that operation; the fourth question in the negative. The jury further assess the damages at £75 sterling.”

On 22nd March 1909 the Sheriff-Substitute pronounced this interlocutor—“The Sheriff-Substitute finds that the verdict falls to be entered as a verdict for the defender: Applies the verdict accordingly, and in respect thereof assoilzies the defender from the conclusions of the action: Finds the pursuer liable to the defender in expenses.”

Note.—“By the answer given to question 2 the jury found that the pursuer was in the employment of the defender when he received his injuries. Question 3 is in these terms—( quotes, supra). The jury returned the following answer to this question—( quotes, supra). It is not doubtful that the jury intended to return a verdict for the pursuer, and if it can be so regarded I should of course enter it in accordance with that intention. The defender maintains, upon several grounds, that the verdict is open to objection, and claims that it falls to be applied in his favour. The most serious objection, and that which I have most reluctantly come to think must be sustained, is that the fault imputed to the defender by the finding of the jury is in law no fault at all. It cannot, I think, be said than an employer is in fault in inviting or permitting his servant to do something which is not within the scope of his duty, and therefore liable for damages if the servant should be injured, no matter in what unforeseen way, and even if the employer has taken all reasonable precautions. In order to infer liability I think it must be found that the operation was a dangerous one, and that the employer failed to take due precautions. This was, necessarily, the basis of the pursuer's case, and in the evidence led, and in his agent's address to the jury, this was the ground of liability which the jury were asked to affirm. Their answer to question 3 does not find that the defender failed to take reasonable precautions, or even that the operation was a dangerous one requiring such precautions. In the absence of such a finding I fear that I must sustain the defender's argument, and hold that as no ground of legal liability has been found by the jury the pursuer cannot claim the verdict— Adamson v. Fife Coal Company, 1909 S.C. 580. It is no doubt true that in the present case the verdict affirms that the defender has been guilty of negligence. But I think it is not legitimate to take part of the answer and disregard the rest. Nor do I feel myself entitled to assume that the jury meant to imply what they have not expressed, viz., that this was a dangerous operation, and that due precautions were neglected. As I have already said, these points formed the bulk of the case in evidence and I find it

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difficult to believe that the omission from the verdict of a definite finding in regard to them was other than intentional. For these reasons I think the verdict cannot stand as a verdict for the pursuer, and that it falls to be entered for the defender. I regret this result, and would willingly have avoided it if I could have found some way of interpreting the verdict in the sense intended by the jury. But on reconsideration I have been unable to do so. I should perhaps mention, though it is not necessary to discuss them, the other objections to the verdict stated by the defender. These were, I think, two in number. First, that the fault, or supposed fault, found by the jury was neither averred nor supported in evidence for the pursuer; and second, that the verdict is inconsistent, in respect that by answer 2 the jury affirmed that the pursuer was in the defender's employment when he was injured, while by answer 3 they found as fault that the defender failed to tell the pursuer that it was no part of his duty to help in shunting the trolley. With regard to the first, it is enough to say that it is an objection which does not arise upon a motion to apply the verdict. The defender's remedy, if he has a remedy, is elsewhere. Of the second objection I need only say that I do not think that the answers referred to are so clearly contradictory as the defender maintains. It is, however, unnecessary to decide the point, as in my opinion the defender is entitled to succeed upon his main argument. I think expenses must follow the verdict.”

The pursuer appealed to the Court of Session upon the grounds ( a) that in the interlocutor complained of the verdict was erroneously applied, et separatism ( b) that the verdict of the jury in so far as it related to their answer to the second part of question three was contrary to evidence, and inconsistent with their answers to question two, and the first part of question three.”

The case was heard on 10th December 1909 before the Lord President, Lord Kinnear, and Lord Dundas, and counsel for the pursuer then stated that in so far as ( b) formed a separate ground of appeal they abandoned it, because if the verdict meant that the defender was not in fault they could not maintain that it was contrary to the evidence.

On 21st December 1909 the Court appointed the cause to be argued by one counsel on each side before the Judges of the First Division, along with four Judges of the Second Division.

At the rehearing it was argued for the appellant—Theverdict had been erroneously applied by the Sheriff in that he ought not to have applied it for either party. He should have refused to accept such a verdict. The verdict was in the category of ambiguous, imperfect, and inconsistent verdicts, and the result must be a new trial. It was ambiguous in that “his duty” in answer 3 might mean “pursuer's” duty or “defender's” duty. On the one hand “pursuer” was the more immediate antecedent to “his”; on the other hand the repetition of the word “assist” seemed to indicate that by “his” was meant “defender's.” It was imperfect in that it did not negative other grounds of fault. It was inconsistent in that it found that the pursuer both was and was not in the defender's employment. There could be no doubt that in a jury trial in the Court of Session a verdict, either ambiguous or imperfect or inconsistent, ought not to be received by the judge at the trial, and if received the result ex debito justiciœ must be a new trial— Morgan v. Morris, July 26, 1855, 2 Macq 342, esp. Lord Chancellor Cranworth at 355, and July 6, 1858, 3 Macq. 323, esp. Lord Chancellor Chelmsford at 336; Florence v. Mann, December 17, 1890, 18 R. 247, 28 S.L.R. 215, Adam on Jury Trial, 294–5. A construction of the Sheriff Courts (Scotland) Act 1907, which would establish a different result from that which obtained in the Court of Session, especially as the contrary would really amount to a denial of justice, must if possible be avoided. Even assuming that in the Sheriff Courts (Scotland) Act 1907, section 31, applied to such a verdict, the words “and give judgment accordingly” did not necessarily mean “apply the verdict for the appellant”; the phrase was wide enough to include the ordering of a new trial. The words “under the other heads may set aside the verdict and order a new trial” did not imply that under head (1) a new trial could not be ordered. The word “other” was merely used because under heads (2), (3), and (4) the verdict could not be applied for the appellant, and under these heads a new trial was the only course open. But section 31 did not apply here, and an appeal lay under section 28, the interlocutor of the Sheriff being a final interlocutor, because an ambiguous, &c., verdict was really no verdict; it was nihil ad rem— Morgan v. Morris, 2 Macq., Lord Chancellor Cranworth at p. 361; Adam on Jury Trial, p. 286. The dicta of the Lord Justice—Clerk and Lord Ardwall in Adamson v. Fife Coal Company, 1909 S.C. 580, 46 S.L.R. 459, to the effect that where a verdict could not be entered for the pursuer it must be entered for the defender, must be taken secundum subjectam materiam. The answers of the jury which there negatived fault were exhaustive and unambiguous. In any case the dicta were obiter. Reference was also made to M'Coll v. Alloa Coal Company, Limited, March 5, 1909, 46 S.L.R. 465. Alternatively, they submitted that the latter half of the answer to question 3 should be taken pro non scripto, and the verdict applied for the pursuer.

Argued for the defender—The verdict was not ambiguous or inconsistent. The jury's answer to question 3 amounted to a finding that there was no fault, for the only fault that they had been able to find was no fault in law. Even assuming that the verdict was ambiguous or inconsistent under section 31, the pursuer was not entitled to a new trial under that section. Where a verdict was not clearly for the pursuer it must be for the defender— Adamson v. Fife Coal Company ( cit. sup.),

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opinions of Lord Justice-Clerk and Lord Ardwall. “And give judgment accordingly” meant allow the appeal and apply the verdict for the appellant. A new trial could be ordered only under “the other heads,” viz., 2, 3, and 4—not under 1. They did not dispute that if there were an ambiguous or inconsistent verdict in the Court of Session the result must be a new trial.

At advising—