Scottish Court of Session Decisions

Mrs Agnes Cunningham or Hughes and others, widow and children of the deceased Thomas Hughes, miner, Kilmarnock, pursuers, broughtan action of damages against R. C. Robertson, surgeon and physician, Kilmarnock, defender.

On 31st May 1911 Thomas Hughes was injured by a fall of coal in No. 5 Pit of the Caprington and Auchlochan Collieries, Limited, with whom he was employed as a miner. As a result of his injuries Hughes suffered much pain, and on 5th June he was ordered to be taken to the Kilmarnock Infirmary, where he died on the 7th June. On the evening of that day Dr Robert C. Robertson, who had attended Hughes in the infirmary, made a post mortem examination and dissection of his body.

The pursuers averred that the post mortem examination and dissection of the body of the deceased had been made by the defender wrongfully and illegally, without any authority to do so and without the consent of the pursuers or any of them.

They also averred—“(Cond. 6) Shortly before his removal to the infirmary the deceased Thomas Hughes instructed an intimation and claim under the Workmen's Compensation Act 1906 to be made against his employers, the Caprington and Auchlochan Collieries, Limited. The said intimation and claim were made on or about the 6th of June 1911 by the pursuer Michael Hughes on his behalf. Following upon the said intimation and claim, an arbitration under the said Act was instituted after Hughes' death by the pursuer Mrs Hughes on behalf of the dependants of Thomas Hughes, and upon 20th March 1912 Sheriff-Substitute Mackenzie, as arbiter therein, pronounced a finding that Hughes' death was caused by injury by accident arising out of and in the course of his employment, and awarded the dependants a sum of £196, 6s. sterling as compensation. The sum so awarded was compensation provided by Act of Parliament for the loss of means of support resulting to the dependants from the said accident.… (Cond. 8)The defender is and has been familiar with compensation claims and other legal claims arising out of accidents in connection with the industry of coal-mining. He was accordingly bound to understand from the circumstances stated, and he did in fact understand, that a question or questions of legal liability depended upon the determination of the cause of Hughes' death. All such questions within the district in question, and particularly those arising with Hughes' employers, are conducted on the employers' behalf by the Ayrshire Coalowners' Association, for whom the defender has regularly and constantly acted as chief medical and surgical expert in contested cases for at least the past ten years. The defender had accordingly a strong interest in respect of his connection with the Caprington and Auchlochan Collieries, Limited, and the other coalowners belonging to the said association, to ascertain whether the origin of the inflammatory condition of Hughes' intestines could be ascribed to any other origin than that of accident in the course of his employment, and to procure and preserve evidence, if such were forthcoming, to that effect. It is believed and

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averred that on or about Tuesday, 6th June 1911, he formed the desire and intention, arising from his said interest, to procure a further examination of the body of Thomas Hughes, to be conducted after the death of Hughes by himself. It is further believed and averred that his object in so desiring was to collect if possible, and preserve, evidence pointing to a cause of death other than accident in the mine, his previous exploratory examination having been too cursory to serve that purpose.… (Cond. 12) In the course of the said illegal proceedings certain portions of the body of the said Thomas Hughes were removed by the defender from the rest, and in particular the whole affected portion of the intestines and the heart were so removed. These portions were not, as they ought to have been, replaced in situ, but were by the instructions, or at least with the assent and authority of the defender, taken away and burned or destroyed or otherwise dealt with for the purposes of the infirmary. Thereafter the incomplete body was carried to the home of the pursuer Mrs Hughes and deposited there.… (Cond. 13).… Moreover, by reason of the said wrongous and illegal actings of the defender, and the destruction of most important articles of evidence thereby sanctioned, and by the dealings of the defender with the report after mentioned, the pursuers, other than Mrs Ledgerwood, who were all dependants of the deceased Thomas Hughes, have been made to endure an unnecessary amount of anxiety, delay, and expense in obtaining the compensation to which they were justly entitled. Inter alia, the solicitors for the deceased's trade society were authorised by its officials to inquire into the circumstances with a view to taking action on behalf of the relatives if such were justified, and for that purpose, after ascertaining that a post mortem had already been made, to instruct a fresh one on behalf of the said society. They did so, but in consequence of the previous mutilation of the body by the defender the result was purely negative. In consequence they felt themselves bound to advise the said society to withdraw their financial support, and the relatives were consequently at the necessity of finding fresh agents and of instructing the prosecution of a claim on their own behalf. This in their impoverished circumstances they found it very difficult to effect, and in the result a much longer time elapsed before they could establish their rights, and more expense was incurred than would have been necessary but for the defender's illegal actings.… (Cond. 14).… Within a few days of the said post mortem examination the defender prepared and obtained the signatures of the two other medical gentlemen to a report of the result of the post mortem examination, and sold the same to the agents of the said Ayrshire Coalowners' Association, whom he knew to be acting in the interests of the Caprington and Auchlochan Collieries, Limited, and who had an adverse interest to that of the pursuers, who were dependants of Hughes.

Further, upon application being made to the defender on behalf of the pursuer Mrs Hughes for information as to the whereabouts and as to the condition of the missing parts, he replied in terms importing that the examination was conducted on behalf of the said Coalowners' Association, and that the report thereof was consequently their property. The pursuers understood this (as it was intended to be understood) as a refusal to impart to them the information obtained by him through his said unwarranted examination of the body of their relative, on the ground that it was made in furtherance of other interests than theirs. They made application as suggested by the defender to the said association's agent, who refused to supply a copy of the report, and the report was held up against her by the opposing agents, with the defender's knowledge, approval, and sanction, and its terms were, with his knowledge and approval, sedulously concealed from her during the subsequent course of the proceedings under the Workmen's Compensation Act and until a late stage in the resulting proof in the arbitration.…”

The pursuers pleaded, inter alia—“(1)The defender having wrongfully and illegally made the post mortem dissection libelled, and having authorised or permitted the illegal destruction of parts of the body as alleged, to the loss, injury, and damage of the pursuers, is liable in reparation for the injury done to them, and this being moderately estimated at the sum sued for, decree should be pronounced as concluded for.”

On 27th November 1912 the Lord Ordinary ( Dewar) approved of the following issue, and by a second interlocutor eo die fixed a date for the trial of the issue by a jury:—“Whether, on or about the 7th of June 1911, and in the Kilmarnock Infirmary, Kilmarnock, the defender did wrongfully make a post mortem examination and dissection of the body of Thomas Hughes, miner, the husband and the father of the pursuers respectively, to the loss, injury, and damage of the pursuers?”

The defender reclaimed, and argued—It was not competent to claim a slump sum in respect of two different wrongs, and that was what the pursuers were doing here. The issue referred to one wrong, while the condescendence, in addition to averments of that wrong, contained averments of another and different wrong. Further, all the pursuers had not a right to recover damages in respect of that second wrong. The action should therefore be dismissed— Killin v. Weir, February 22, 1905, 7 F. 526, 42 S.L.R. 393; Conway v. Dalziel, June 13, 1901, 3 F. 918, per the Lord President at p. 921, 38 S.L.R. 662; Paxton v. Brown, 1908 S.C. 406, 45 S.L.R. 323; Harkes v. Mowat, March 4, 1862, 24 D. 701. Alternatively, the pursuers ought to delete the averments relating to the second wrong, and failing their doing so the case should be sent to proof before a judge.

Argued for the pursuers—There were here, not two wrongs, but merely a continuation of the same wrong. The record was both relevant and competent— Pollok v. Workman, January 9, 1900, 2 F. 354, per Lord Kyllachy, 37 S.L.R. 270; Gray v. Caledonian Railway Company, 1912 S.C. 339, 49 S.L.R. 219; Smyth v. Muir, November 13, 1891, 29 S.L.R. 94; Gibson v. Macqueen, December 5, 1866, 5 Macph. 113, 3 S.L.R. 83.

At advising—