Scottish Court of Session Decisions

Lord Guthrie—On the question of competency I agree with Lord Hunter's opinion, which I have had an opportunity of reading. [ His Lordship then dealt with the merits, holding that the judgment appealed from was right.]

Lord Hunter—On a careful perusal of the opinions delivered by the House of Lords in the case of Lawrie v. Banknock Coal Company, Limited, 1912 S.C. (H.L.) 20, 49 S.L.R. 98, I am unable to hold that the present appeal is competent. By section 14 of the Workmen's Compensation Act 1906, it is provided—[ His Lordship read the section]. In terms of the definition clause in that Act (section 13) “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.” By section 30 of the Sheriff Courts (Scotland) Act 1907, it was provided that cases above £50 in value originating in the Sheriff Court “other than claims by employees against employers … for damages under the Employers' Liability Act 1880, or alternatively at common law,” may be remitted to the Court of Session for jury trial. Section 52 of the same Act enacted that “all … statutes … now in force so far as the same are inconsistent with the provisions of this Act are hereby repealed.”

In the case of Lawrie the question arose as to the right of the father of a deceased workman, who had raised an action in the Sheriff Court against his son's employers for damages under the Employers’ Liability Act, and alternatively at common law, to have the case remitted to the Court of Session for jury trial. The First Division, composed of Lord President Dunedin, Lord Johnston, and Lord Mackenzie, were of opinion that, even if the right of the pursuer to have the cause remitted to the Court of Session for jury trial had been taken away by section 14 of the Workmen's Compensation Act 1906, it had been restored by the Act of 1907. Lord Dunedin also expressed the opinion—and Lord Mackenzie concurred in his opinion—that section 14 of the Workmen's Compensation Act did not take away a father's right to appeal from the Sheriff Court to the Court of Session. His Lordship thought that section 13 was not introduced with reference to section 14, but that, on the assumption that it applied, it was not meant to make a right of appeal in an action at law depend upon a fact ( i.e., the fact of dependence) which would have to be inquired into antecedently, and which has no relevance to an action at law. He also said (1911 S.C. 817, at p. 820, 48 S.L.R. at 631)—“But the chief ground upon which I should have held that the right was not taken away is that the right of the father to sue is quite independent of any idea of workmen's compensation, and that therefore nothing but clear enactment could take that right away.” Lord Johnston took a different view. After referring to the language of section 13 of the 1906 Act he continued—“Primarily this refers to compensation under the Act. But when applied to section 14—unless ‘workman’ is to have a different meaning in section 14 from that which it has in the rest of the Act, which the context does not provide—then having regard to the terms of the 14th section and to those of the Employers’ Liability Act 1880, compensation has, I think, a different and wider meaning, the result being that the restriction of removal and appeal to the Court of Session covers not merely actions raised by the workman himself, but those raised by the specified relations after his death.”

The House of Lords affirmed the Court of Session upon the ground that the right of appeal, if taken away by the earlier Act, had been restored by the latter Act. There is, therefore, no decision of that House upon the effect of sections 13 and 14 of the Workmen's Compensation Act on the right of a father to appeal an action of damages by him for his son's death. At the same time this question was discussed by the different Judges who took part in the decision. The Lord Chancellor said—“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.” Lord Atkinson, although not expressing a final opinion upon the question, said that undoubtedly the inclination of his opinion was that section 14of the Workmen's Compensation Act was meant to deal with all actions under that Act, and that therefore the word “workman” must get the extended meaning put upon it by the definition clause. Lord Gorell, though with considerable doubt, took a different view, but Lord Shaw agreed with the Lord Chancellor.

By the recent Sheriff Courts (Scotland) Act 1913 (2 and 3 George V, cap. 28), First Schedule, amending the Sheriff Courts Act 1907, it is provided that the word “employee” in the amended Act includes the legal personal representative of an employee and any person who by the law of Scotland may be entitled to solatium in respect of the death of an employee. The effect of this provision when read into section 30 of the Sheriff Courts Act 1907 is to take away from a pursuer who has a claim against the employer of a deceased relative the right of appeal to the Court of Session, and

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