Scottish Court of Session Decisions

The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 30, and the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 14, are quoted in the rubric, supra.

David Brown, miner, Carnquean Square, No. 2, Glenboig, raised an action in the Sheriff Court at Glasgow against The Glenboig Union Fire-Clay Company, Limited, having their registered office at 48 West Regent Street, Glasgow.

The claim of the pursuer was—“(1) For damages at common law laid at £600 in respect of the death of his son David Brown, who was a drawer in the employment of the defenders, his wages being 22s. per week, and who was killed through the fault and negligence of the defenders on or about 18th January 1910, in consequence of a fall of stone from the roof of the mine in which the said deceased David Brown was working at the time, the said David Brown being, as defenders well knew, entirely inexperienced in the work at which he had been set; or, otherwise (2) for payment of £195 under the Employers' Liability Act 1880, in respect that the deceased was at the time of his death conforming to the orders of William Mills and John Beattie, who were superintendents in the sense of the Act, and who knew, or should have known, that the deceased was entirely inexperienced in the work at which he had been set.”

On 21st July 1910 the Sheriff-Substitute ( Boyd) allowed a proof. The defenders appealed, and on 7th November the Sheriff ( Millar) dismissed the action in so far as it was laid at common law, and to that extent recalled the interlocutor of the Sheriff-Substitute, but quoad ultra he adhered to the interlocutor.

The pursuer then, in virtue of section 31 of the Sheriff Courts (Scotland) Act 1907, moved to have the cause tried by a jury in the Sheriff Court, but on 10th November the Sheriff-Substitute refused the motion. Thereupon, on 12th November, the pursuer, in virtue of sec. 30 of the same Act, required the cause to be remitted to the First Division of the Court of Session for trial by jury there, and on the case appearing in the Single Bills he moved for an order for issues.

The respondents (defenders) objected to the competency of the appeal, and argued — The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 14, applied directly to this action, and therefore it could not be removed to the Court of Session for jury trial nor appealed there save by stated case. It was true that that section used the words “where a workman raises an action …. in respect of any injury,” and in this case it was the father of the injured workman and not the workman himself who had raised the action, but by the previous section (13) any reference to “workman” included persons for whose benefit compensation was payable and therefore included the pursuer. “Compensation” used in this section (13) was not restricted to “compensation” under the Workmen's Compensation Act, but included “compensation” under the Employers' Liability Act 1880 (43 and 44 Vict. cap. 42), because ( a) section 14 itself expressly dealt with actions under the Employers' Liability Act, and ( b) the word “compensation” was used throughout sections 1 to 6 of the Employers' Liability Act to denote payments due under that Act. Accordingly, the Workmen's Compensation Act 1906, sec, 14, had not been repealed by the Sheriff Courts (Scotland) Act 1907, and it applied to this action and rendered it incompetent to have the cause brought up to the Court of Session. Originally the Employers' Liability Act 1880, sec. 6 (3), was the statutory provision for actions under that Act being commenced in the Sheriff Court and for their subsequent removal to the Court of Session, and it had been repealed by the Workmen's Compensation Act, 1906, sec. 14. Even if it should be maintained that the latter section was impliedly repealed by the Sheriff Courts (Scotland) Act 1907, the repealed section of the Employers' Liability Act would not be revived, and it need not therefore be considered. The motion should therefore be refused.

Counsel for the appellant (pursuer) were not called on.

The Court without delivering opinions ordered issues.