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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lawrie v. Banknock Coal Co., Ltd [1911] ScotLR 98 (12 December 1911)
URL: http://www.bailii.org/scot/cases/ScotCS/1911/49SLR0098.html
Cite as: [1911] SLR 98, [1911] ScotLR 98
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SCOTTISH_SLR_Court_of_Session
Page: 98↓
Court of Session Inner House First Division.
(Before the
v.
(In the Court of Session, March 17, 1911, 48 S.L.R. 629, and 1911 S.C. 817.)
Page: 99↓
Facts:
A father, averring that his deceased son had given his earnings for the maintenance of the household, brought in the Sheriff Court against his son's employers an action for damages under the Employers' Liability Act 1880, or alternatively at common law, and had the cause remitted to the Court of Session for jury trial under section 30 of the Sheriff Courts (Scotland) Act 1907. The defenders maintained that, looking to sections 13 and 14 of the Workmen's Compensation Act 1906, the remission was incompetent.
Held that even if the right of one in the position of the pursuer to have his cause remitted had been taken away by the Workmen's Compensation Act 1906, such right had been restored by sections 30 and 52 of the Sheriff Courts (Scotland) Act 1907.
This case is reported ante ut supra.
The defenders the Banknock Coal Company, Limited, appealed to the House of Lords.
At delivering judgment—
In the present case the question raised is whether or not the pursuer was entitled to have the cause remitted for trial by jury to the Court of Session. I cannot help thinking that it was probably intended in 1906 to preclude the remittal of a cause like this. Possibly it was not intended in 1907 to undo what was thought to have been done in 1906. But I also think that it was undone in 1907.
Upon this subject I agree with the reasoning of Lord Johnston. Taking sections 13 and 14 together of the Workmen's Compensation Act 1906, it seems to me that removal and appeal to the Court of Session are barred (save on a question of law) not only where the action is raised by the workman himself, but also where it is raised by his legal personal representative or his dependants or other persons to whom or for whose benefit compensation is payable. No doubt this is expressed awkwardly by a mere definition clause; and in view of the contrary opinion expressed by the Lord President I cannot say it is free from doubt. I feel that this view leaves anomalies and may make the right to appeal turn upon the dependency of a father upon a deceased son, which may be a disputed fact and may be irrelevant to the action, as pointed out by the Lord President. But I think upon the whole that these sections have the effect described by Lord Johnston, though I do not desire to rest my conclusion upon that ground.
I agree with the Lord President and the other Lords of Session that the right, if taken away by the Act of 1906, was restored by the Sheriff Courts Act of 1907, sec. 30. That section expressly gives the right to remit, as was done here, “in cases originating in the Sheriff Court other than claims by employees against employers in respect of injury caused by accident arising out of and in the course of their employment, and concluding for damages under the Employers' Liability Act 1880, or alternatively at common law or under the Employers' Liability Act 1880.”
Here we have in this case an action by the father of a deceased workman, claiming damages for the death by accident of his son against the employers of the son, resting upon common law, or alternatively upon the Employers' Liability Act 1880. How am I to say that this is a claim by an “employee”? There is no definition clause which can be invoked to enlarge the meaning of the word “employee.” I do not know whether or not Parliament intended that the employee's father should be in the same position as the employee himself, but it certainly has not said so. I feel that so to hold, as we are asked by the appellants to hold, would be to usurp the function of the Legislature.
I am therefore of opinion that the appeal should be dismissed.
Page: 100↓
The respondent removed the cause to the Court of Session, relying on section thirty of the Sheriff Courts (Scotland) Act 1907, which provides for such a remit except in certain specified cases. The appellants contended that the present case was one of those specifically barred not only by the Sheriff Courts (Scotland) Act 1907 but also by the Workmen's Compensation Act 1906, but the First Division of the Court of Session, on the 17th March 1911, held that the cause had been competently remitted, and allowed issues for the trial of the cause in the Court of Session.
Leave to appeal to your Lordships' House was granted on 13th May 1911.
The contention on behalf of the appellants is that the remit was incompetent and contrary to law. Whether this contention is correct or not depends upon the construction of the two Acts last mentioned.
I preface the consideration of those two Acts by referring to two earlier Acts, viz., the Employers and Workmen's Act 1875, and the Employers' Liability Act 1880.
The Act of 1875 was an Act the object of which was to enlarge the power of County Courts in England, the Sheriff Courts in Scotland, and the Civil Bill Court in Ireland in respect of disputes between employers and workmen, and to give courts of summary jurisdiction a limited jurisdiction in respect of such disputes. The expression “workman” in the Act was defined as not including a domestic or menial servant, but included other persons as therein expressed engaged in manual labour under a contract with an employer.
The Act of 1880 was entitled thus, “An Act to extend and regulate the liability of employers and to make compensation for personal injuries suffered by workmen in their service,” and section 1 provided that where, after the commencement of this Act, personal injury is caused to a workman in the five cases mentioned therein, “the workman, or in case the injury results in death the legal personal representatives of the workman, and any persons entitled in case of death, shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of nor in the service of the employer, nor employed in his work.” Section 2 dealt with exceptions to amendment of the law, and section 3 limited the amount of compensation recoverable under the Act to an amount of three years' earnings estimated as provided.
Under section 6 every action for recovery of compensation under the Act is to be brought in a County Court in England, a Sheriff Court in Scotland, and a Civil Bill Court in Ireland, but might, on the application of either party, be removed into a superior court in like manner and upon the same conditions as an action commenced in a County Court may by law be removed. This would be by certiorari or otherwise if the High Court or a Judge thereof should deem it desirable that the action should be tried in the High Court. In Scotland the action might be removed to the Court of Session at the instance of either party in the manner provided by and subject to the conditions prescribed by section nine of the Sheriff Courts (Scotland) Act 1877.
By section 8 of the Act of 1880 the expression “workman” means a railway servant and any person to whom the said Act of 1875 applies. The Act of 1880 has been continued from time to time and remains in force as amended by section 14 of the Workmen's Compensation Act 1906.
In the Workmen's Compensation Act 1908, section 13 gives, “unless the context otherwise requires,” certain definitions. A fresh definition of “workman” is given among a number of other definitions, and “any reference to a workman who has been injured shall, where the workman is dead, include a reference to his legal personal representative or to his dependants or other person to whom or for whose benefit compensation is payable,” Section 14 contains the special provision as to Scotland which is set out in the appendix. According to it, in Scotland where a workman raises an action against his employer independently of the Act, in respect of any injury caused by accident arising out of or in the course of the employment, the action, if raised in the Sheriff Court and concluding for damages under the Act of 1880, or alternatively at common law or under the Act of 1880, shall, notwithstanding anything contained in the Act, not be removed under the Act or otherwise to the Court of Session, nor shall it be appealed to that Court otherwise than by appeal on a question of law.
The last Act to refer to is the Sheriff Courts (Scotland) Act 1907, clauses 30 and 31. Section 30 allowed of the removal by either party to the Court of Session of cases originating in the Sheriff Court (other than claims by employees against employers in respect of injury caused by accident arising out of and in the course of their employment and concluding for damages under the said Act of 1880, or alternatively at common law or under the said Act of 1880) where the claim is in amount or value above £50. Certain powers in the Court of Session to remit were given. Section 31 gave a right to either party to have a jury trial before the Sheriff in any action in the Sheriff Court of the kind excepted in the 30th section where the claim exceeds £50, and section 52 repealed the enactments mentioned in Second Schedule to the Act to the extent therein mentioned, and all laws, statutes, Acts of Sederunt, orders, and usages then in force so far as the same are inconsistent with the provisions of the Act.
If the question depended solely on the Sheriff Courts Act of 1907, I think that it would be free from any doubt, because the action is not an action by an employee against an employer in any ordinary sense.
Page: 101↓
I think, however, though with considerable doubt, that it would be straining language to hold that “where a workman raises an action against his employer” in section 14 of the Act of 1906 the words used include an action such as the present, and although the term “workman” may, according to the 13th section, include other persons where the context does not otherwise require, I am unable to read the 14th section as using the term in its wider signification. It looks to me as if the interpretation clause, section 13, had not been introduced with reference to the special provisions as to Scotland in clause 14.
However this may be, I think that the express provisions of the Act of 1907 remove any difficulty or doubt, and I agree with the views on this point expressed by the Lord President.
It seems to me that when the 14th section of the Act of 1906 and the Act of 1907 were passed, it must have escaped attention that claims could be made otherwise than by an employee, but whatever may have been the intention I do not see how the express terms of the Act of 1907 can be overcome.
In my opinion the decision of the First Division should be affirmed.
If the range of vision be narrowed to the meaning of the word “employee,” the conclusion is inevitable; and I agree that in the interpretation of this Act it must be so narrowed. The words of the Legislature not being ambiguous, the duty of the judiciary is not doubtful.
The results may be unfortunate, unexpected; it may be, as was argued, that a scandal continues. If so, Parliament will note these things. But with regard to them it is beyond the function of a court of interpretation to give relief, and perhaps even beyond its province to express views or to proffer opinions.
Their Lordships dismissed the appeal with expenses.
Counsel for the Pursuer (Respondent)— Munro, K.C.— Mackenzie Stuart. Agents— Fleming & Buchanan, Stirling— Macpherson & Mackay, S.S.C., Edinburgh— R. S. Taylor, Son, & Humbert, London.
Counsel for Defenders (Appellants)— D.-F. Scott Dickson, K.C.— Beveridge. Agents— W. T. Craig, Glasgow— W. & J. Furness, W.S., Edinburgh— Beveridge, Greig, & Company, London.