Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, c. 58), sec. 1, sub-sec. (4), enacts—“If, within the time hereinafter in the 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 so choose, proceed to assess such compensation, but may deduct from such compensation all or part of the costs which, in its judgment, have been caused by the plaintiff bringing the action instead of proceeding under this Act…”

Peter Slavin, labourer, Trongate, Glasgow, brought an action against Train & Taylor contractors, Rutherglen, for payment of £500 as damages for personal injury sustained by him while in the

Page: 94↓

defenders' employment. At the time he was injured the pursuer was assisting to demolish certain buildings at the junction of Bell Street and High Street, Glasgow. While he was so engaged an old foundation wall, at the foot of which he was working, suddenly collapsed, and fell upon him, owing, as he alleged, to the failure of the defenders to use the necessary and proper precautions. The defenders denied fault. The case was tried before the Lord President and a jury on 18th March 1911 on an issue in ordinary form. The jury having returned a verdict for the defenders, a bill of exceptions was taken, but on 1st November the Court refused the bill. The defenders having moved the Court to apply the verdict, counsel for the pursuer craved their Lordships to assess the compensation to which the pursuer was entitled under the Workmen's Compensation Act 1906.

The defenders opposed the motion, and argued—(1) The motion was incompetent where, as here, the action was raised in the Court of Session. It could only be made in cases which had originated in the Sheriff Court, for claims under the Act must originate there. The word “Court” in sec. 1 (4) of the Act meant Sheriff Court. That was apparent from the provisions of the A.S. 26th June 1907 as to costs (sec. 10) and as to the transmission of the certificate of the award (sec. 11, (3)). (2) The motion was not timeously made, for it ought to have been made after the jury had returned their verdict. (3) The pursuer was barred from making such a motion by going before a jury, for the Act provided no machinery for a remit to assess compensation in such cases. Alternatively the Court should allow a proof, as was done in M'Kenna v. United Collieries, Limited, June 27, 1906, 8 F. 969, 43 S.L.R. 713.

Argued for pursuer—The motion was not limited to cases originating in the Sheriff Court, for the Act did not say so. (2) The motion was timeously made, for it had been made at the earliest possible moment. Esto that a workman who desired to have compensation assessed was bound to apply then and there to the Judge trying the case— Edwards v. Godfrey, [1899] 2 QB 333—the pursuer had done so here, for until the bill of exceptions had been disposed of the case was still pending— Isaacson v. New Grand (Clapham Junction), Limited, [1903] 1 KB 539. Reference was also made on this point to Cattermole v. Atlantic Transport Company, [1902] 1 KB 204. (3) The pursuer was not barred by going before a jury, for it was not the province of the jury but of the Judge to assess the compensation under the Act— M'Govern v. The Glasgow Coal Company, Limited, October 26, 1906, 14 S.L.T. 359. There was sufficient in the evidence led to enable the Court to assess compensation, but if not then the pursuer was entitled to a proof— M'Kenna ( cit. sup).