Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 6, enacts—‘Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof—(1) The workman may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for such compensation, but shall not be entitled to recover both damages and compensation; and (2) if the workman has recovered compensation under this Act, the person by whom the compensation was paid, and any person who has been called on to pay an indemnity under the section of this Act relating to sub-contracting, shall be entitled to be indemnified by the person so liable to pay damages as aforesaid, and all questions as to the right to and amount of any such indemnity shall, in default of agreement, be settled by action, or, by consent of the parties, by arbitration under this Act.’ Robert Gray, pursuer, raised an action against the North British Railway Company, defenders, to recover damages in respect of the death of his son.

The defenders, inter alia, pleaded—“The pursuer's son Thomas Gray having claimed and been paid compensation under the

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Workmen's Compensation Act 1906 in respect of his injuries, the present action is incompetent, and should be dismissed.”

The facts of the case appear from the opinion of the Lord Ordinary, Lord Cullen, who on 10th December 1914 sustained the first plea-in-law for the defenders and dismissed the action with expenses.

Opinion.—The pursuer's son, the deceased Thomas Gray, was in the service of Messrs James Nimmo & Company, Limited, coalmasters, Longriggend, Lanarkshire. On 14th June 1910 Thomas Gray, while acting as a brakesman in the working of his employers' traffic on a branch railway line belonging to them, received serious injuries through an accident. He died on 21st September 1913, his death having been the result of said injuries, according to the pursuer's averments.

The coal waggons which were being used at the time of the said accident were the property of the defenders. The pursuer avers that the accident in question was due to the defective condition of a waggon in which the deceased was standing at the time. He avers that the defect was due to the negligence of the defenders, that the defenders were answerable to his son for his injuries, and that they are now liable in damages to him, the pursuer, for his son's supervening death.

The defenders' first plea-in-law is that the action is incompetent. It is based on the admitted fact that, following on the accident, Thomas Gray claimed from his employers compensation in respect of his injuries under the Workmen's

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Compensation Act 1906, and that he received from them full compensation in terms of that Act.

Section 6 of the Act provides as follows:—‘… [ quotes, v. sup.]…’

If the pursuer's averments in the present action are well founded in fact and law, the deceased had a common law claim against the defenders, and under the Act he was entitled both to take proceedings against them for recovery of damages and to take proceedings against his own employers for statutory compensation. He was not entitled, however, to recover payment of both damages and compensation. He elected to take the course of claiming compensation from his employers, and he admittedly recovered from them the full amount of such compensation. It follows that his claim for damages against the defenders was, vi statuti, sopited and discharged. This, the defenders say, excludes a second claim by the pursuer against the defenders in respect of death having supervened as the result of the injuries for which the deceased himself was duly compensated during his life. They appeal to the well-known case of Darling v. Gray & Son, 18 R. 1164 and 19 R. (H.L.) 31. Lord Watson there said—‘There is no case to be found in the reported decisions of the Court of Session in which an action was sustained after the deceased's claims had been settled or extinguished by an adverse judgment, or where he had raised an action which passed to and might be insisted in by his executor, and the existence of such a right of action has not been affirmed or even suggested by a single text writer.’ And it was held that the exception in our law which permits of claims by relatives in respect of death was not to be extended beyond the class of cases sanctioned by legal usage. It appears to me that this ratio applies to the present case. The deceased did not, it is true, claim against the present defenders. But he took the alternative course of claiming and receiving full compensation from his employers under the statute; and by his doing so his claim against the defenders, if he had one, was excluded and satisfied. That being so, it appears to me that the pursuer's case is incompetent.

“Following the views which I have above expressed, I shall sustain the defenders' first plea-in-law and dismiss the action.”

The pursuer reclaimed, and argued—The pursuer had a right at common law to maintain an action in respect of the death of his son against any person through whose fault his death had been caused. This claim was not excluded by a claim of the son in his lifetime against his employer. The claim against the employer was given by statute and did not depend on fault. The son might have maintained both claims, but by the Workmen's Compensation Act 1906 (6 Edw. VII. cap. 58), sec. 6, he was only entitled to recover in respect of one of the claims. That was the only exclusion of right made by the statute. The right of a dependant to sue was separate from the right of the workman— Darlington v. Roscoe & Sons, [1907] 1 KB 219; Williams v. Vauxhall Colliery Company, Limited, [1907] 2 KB 433. The fact that some relatives had recovered under the Act did not bar others from recovering at common law— Blain v. Greenock Foundry Company, June 5, 1903, 5 F. 893, 40 S.L.R. 639; Stocks v. Hall's Collieries, Limited, 132 L.T. 272. The claims open at common law were entirely different from those under the Act— New Monckton Collieries, Limited v. Keeling, [1911] AC 648, 49 S.L.R. 664. The claim in the present case was entirely different from the dead man's and was for solatium— M'Ginty v. Kyle, 1911 S.C. 589, 48 S.L.R. 474. Darling v. Gray & Sons. July 14, 1891, 18 R. 1164, 28 S.L.R. 872 and May 31, 1892, 19 R. (H.L.) 31, 29 S.L.R. 910, was clearly distinguishable. At that date there was no Workmen's Compensation Act. In Darling there was an action raised by the deceased still pending, and a second action on the same facts could not be competent. But the present action was the only one against the Railway Company. The Railway Company, if at fault, were liable by the Workmen's Compensation Act 1906 to proceedings by the employers for recovery of the compensation which had been paid, but that statutory liability could not alter their liability to the pursuer at common law. The policy of the Act was not to protect third parties who were at fault.

Argued for the respondents—If the pursuer had a claim derived from his son, it was excluded by section 6 of the Workmen's

Compensation Act 1906, which prevented the recovery of both compensation under the Act and damages independently of the Act. As the son had been paid compensation under the Act any further claim derived through him was barred. If the pursuer's claim was not derived from his son, then Darling v. Gray & Sons ( cit.) was in point and excluded his claim. Blain v. Greenock Foundry Company ( cit.), Darlington ( cit.), and Williams ( cit.) had no bearing on the present case.