Scottish Court of Session Decisions

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Cite as: [1913] SLR 308_1, [1913] ScotLR 308_1

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SCOTTISH_SLR_Court_of_Session

Page: 308↓

Court of Session Inner House Second Division.

Sheriff Court at Aberdeen.

Saturday, January 11 1913.

50 SLR 308_1

Barclay

v.

T. S. Smith & Company.

Subject_1Process
Subject_2Sheriff
Subject_3Remit for Jury Trial
Subject_4Proof or Jury Trial — Trifling Character of Cause — Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 30.
Facts:

In an action of damages at common law, in the Sheriff Court, for £100 for personal injury, the pursuer required the cause to be remitted to the Court of Session for jury trial. The Court refused the application and remitted the cause back to the Sheriff on the ground that ex facie of the record the injury averred by the pursuer was not serious, and the case was therefore unsuitable for jury trial in the Court of Session.

Headnote:

The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 30, enacts—“In cases originating in the Sheriff Court, … where the claim is in amount or value above fifty pounds, and an order has been pronounced allowing proof, … it shall, within six days thereafter, be competent to either of the parties who may conceive that the cause ought to be tried by jury to require the cause to be remitted to the Court of Session for that purpose, where it shall be so tried: Provided, however, that the Court of Session shall, if it thinks the case unsuitable for jury trial, have power to remit the case back to the
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Sheriff, or to remit it to a Lord Ordinary, or to send it for proof before a judge of the Division before whom the cause depends.”

Robert Mitchell Scorgie Barclay, electrical engineer's apprentice, Aberdeen, pursuer, brought an action of damages for £100 in the Sheriff Court at Aberdeen against T. S. Smith & Company, a firm of motor car proprietors in Aberdeen, defenders, in respect of personal injury sustained by him through being run down by a motor car owing to the fault of its driver, an employee of the defenders.

The pursuer averred, inter alia, that on 23rd September 1912, while cycling with three companions along the North Deeside Road towards Aberdeen, he was run down from behind by a motor car driven by a servant of the defenders. “The said four cyclists were struck violently, knocked down and injured. The right mud-guard of said motor car caught pursuer and dragged him along the road for about 20 yards. The car was going at a great speed and was a considerable distance past the point where the accident happened before the driver was able to stop it. (Cond. 4) The pursuer was severely injured. He sustained numerous and severe bruises on the body, arms, and legs. The cycle, worth seven guineas, was completely destroyed, and his clothing was also destroyed. The cycle was hired from a hirer, to whom the pursuer is liable for the value of said cycle and who is insisting on his claim. He was for several weeks completely incapacitated from work and has not yet fully recovered. The pursuer, from the combined effect of his direct physical injuries and of his being suddenly struck down in the dark by a car, the approach of which he did not hear, has sustained severe nervous shock. It is necessary for his efficiency as an engineer and for his working at said trade with safety to himself and to his fellow-workmen that his nervous system should be in good condition. The accident will probably have permanent effect on his nervous system, and may result in his earning capacity being permanently diminished. In the course of his work as an engineer it is necessary in order to allow him to get home for meals to use a cycle and ride through congested traffic in Aberdeen. Owing to the said shock he will be unable to ride a cycle where there is traffic and he will be handicapped in carrying on his said work.”

On 11th December 1912 the Sheriff-Substitute ( Louttit Laing) allowed a proof, and on 13th December 1912 the pursuer required the cause to be remitted to the Second Division of the Court of Session for jury trial.

Upon the case appearing in the Single Bills counsel for the defenders moved that it be remitted back to the Sheriff Court, and argued—The Court was entitled to exercise its discretion, and if it thought a case unsuitable for jury trial in the Court of Session could remit it back to the Sheriff for proof—Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 30. The present case was unsuitable for jury trial, because the injury averred by the pursuer was of a trifling character. In M'Nab v. Fyfe, July 7, 1904, 6 F. 925, 41 S.L.R. 736, the Court refused to allow a jury trial, although the injuries there averred were more serious than here, and that though the Court were proceeding under the Judicature Act (6 Geo. IV, cap. 120), sec. 40, which gave a narrower discretion than did the Sheriff Courts (Scotland) Act 1907, sec. 30.

Argued for the pursuer—The injury averred by the pursuer was serious, and the case was therefore suitable for jury trial in the Court of Session— Sharples v. Yuile & Company, May 23, 1905, 7 F. 657, 42 S.L.R. 538; Duffy v. Young, November 3, 1904, 7 F. 30, 42 S.L.R. 40.

Judgment:

Lord Justice-Clerk—Since 1907 the law has been that when a cause is removed from the Sheriff Court to the Court of Session for jury trial “the Court of Session shall, if it thinks the case unsuitable for jury trial, have power to remit the case back to the Sheriff, or to remit it to a Lord Ordinary, or to send it for proof before a judge of the Division before whom the cause depends”—Sheriff Courts (Scotland) Act 1907, sec. 30. I think the purpose is very plain, namely, to save the enormous expense incurred in the trial by jury of very small cases, especially where witnesses have to be brought from a long distance. But whatever was the intention of the Legislature, the statute gives us an absolute discretion in the matter. Even under the law as it stood prior to 1907 the Court was of opinion that it had such a discretion, but the Act of 1907 has made this quite clear.

In the present case I think we should exercise our discretion by remitting the case back to the Sheriff. The circumstances in the case of M'Nab v. Fyfe ( 6 F 925), where jury trial was refused, are very similar. In that case, as in this, the pursuer complained of severe bruises and of nervous shock. The Court, having only the power conferred on it by the law prior to 1907, refused the appeal, the Lord President saying, “On the face of the record this is a small case and more suitable for proof in the Sheriff Court than for jury trial in the Court of Session. Proceeding upon that view we have remitted other similar cases to the Sheriff Court for proof. I am of opinion that this would be the proper course to follow in the present case.” I do not think there is any substantial difference between that case and the one we are dealing with now. I think this is a typical case for remitting to the Sheriff, and I would have thought this apart from the case of M'Nab, though that decision confirms me in my opinion. I have acted as counsel in and have tried hundreds of jury cases, and I have seen many cases where the expenses have been piled up and where the pursuer was a person of no substance, so that even though the defender was successful in obtaining a

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verdict he was in the end an absolute loser. This leads to many defenders paying a substantial sum where there is no true case against them rather than run the risk of being subjected to large loss even if successful. I hold that in this case we should exercise our discretion under the Act of 1907 and remit this case to the Sheriff for proof.

Lord Dundas—I quite agree. The question to which the Court has to address itself is whether it thinks this case unsuitable for jury trial, and, looking to its general aspect as disclosed on the pursuer's record, I am of opinion that it is unsuitable. I understand that there has been no case decided under sec. 30 of the Act of 1907, but if authority were needed I agree that the case of M'Nab ( 6 F. 925), decided at a time when the statutory power of the Court was less explicit than it is now, is a fortiori of the present.

Lord Guthrie—I agree. In this case there are four points which weigh with me—(1) There is no averment of any serious physical injury; (2) there is no averment of any permanent injury other than the very guarded statement in cond. 4 that the accident will “probably” have a permanent effect on the pursuer's nervous system and “may” result in his earning capacity being permanently diminished; (3) there is no averment that medical attendance was made necessary by the accident; (4) the witnesses are all in Aberdeen, and much additional expense would be incurred by bringing them here if the case were tried before a jury. I agree that the views expressed in M'Nab ( 6 F. 925) are applicable in this case, and indeed in that case the averments of injury are even stronger than they are here.

Lord Salvesen was absent.

The Court refused the pursuer's application for a jury trial in the Court of Session, and remitted to the Sheriff to proceed in the case.

Counsel:

Counsel for the Pursuer— A. M. Stuart. Agents— Balfour & Manson, S.S.C.

Counsel for the Defenders— R. S. Brown. Agents— Alex. Morison & Co., W.S.
1913