Scottish Court of Session Decisions

Lord President—On the pursuer's pleadings as they stand on this record there is a great deal to be said for the North British Railway Company. More unfortunate pleadings I have rarely seen.

It is common ground that on a certain date in December 1914 the pursuer suffered personal injury by accident arising out of and in the course of his employment with the Corporation of Glasgow, and that he was entitled to claim, if he chose, compensation from his employers under the statute. But then he alleges—and he alleged at the time—that his injuries were due to negligence on the part of the Railway Company's servants, and accordingly that he proposed to raise an action against the Railway Company to recover damages from them.

That claim for damages is now before us, and is met by, inter alia, a plea to the effect that the pursuer, having claimed and received compensation under the Workmen's Compensation Act 1906, from his employers, cannot, in terms of the provisions of that Act, recover damages from the defenders, and if that plea is sound this action falls to be dismissed. Now it is met by a most unfortunate plea on the part of the pursuer to the effect that, having accepted payments of compensation under the Workmen's Compensation Act, under express reservation of his claim against the defenders, he is not barred from maintaining the present action. I should have supposed that if he had taken compensation under the Workmen's Compensation Act, even although he had accepted the payment without prejudice and reserved his claim against the North British Railway Company, nevertheless their fifth plea-in-law would fall to be sustained. And when we examine the pleadings we find that the pursuer explicitly sets out that he did receive compensation under the Workmen's Compensation Act, and then proceeds to narrate certain reservations which were made in the receipt for the payment. In the course of the argument, however, we were informed that the arrangement under which the payments were received was expressed in writing. The writing is now before us, and it is admitted by both parties that there is nothing beyond the agreement which we find there expressed. The letter, which is written by the solicitors for the pursuer to the Town-Clerk of Glasgow on 3rd February 1915, is as follows:—“Dear Sir—We act for Patrick Kelly, an employee of the Corporation, who was injured on 17th December last through being knocked down by some waggons belonging to the North British Railway Company at Haghill depot. At the time of the accident Kelly was engaged in his ordinary duties as a servant of the Corporation. It is our intention to take proceedings against the Railway Company on Kelly's behalf, and we shall be obliged if you will in the meantime pay him whatever compensation may be due to him under the Workmen's Compensation Act 1906, on the footing that it is paid without prejudice to, and under reservation of, any claim he may have against the Railway Company, and also, of course, on the understanding that should he succeed in obtaining damages from the Railway Company, whatever compensation you have paid him will be repaid to you out of such damages.” And the Corporation of Glasgow made payment upon that footing.

Now it appears to me that the true effect of that arrangement is that the payments subsequently made by the Corporation of Glasgow were not payments of compensation under the statute at all, but were payments made by them temporarily for the purpose of enabling the pursuer to tide over the time which must elapse before the issue of his action with the North British Railway Company, and were not intended by the pursuer to be—and were not intended by the Corporation to be—payments made in virtue of their liability under the Act of Parliament.

This interpretation which I put upon the letter is, I think, in strict accordance with the interpretation put upon a similar arrangement, partly expressed in writing and partly proved by parole evidence, in the case of Wright v. Lindsay, 1912 S.C. 189, 49 S.L.R. 210, because although in that case the written receipt bore only the reservation of subsequent claims, the oral evidence showed—I read now from the learned Sheriff's narrative, 1912 S.C. 189, at pp. 190–1, 49 S.L.R. 210, at p. 211—that while the payments were made by the insurance company, they were made on the footing that the pursuer “was to recover from the party in fault, and that the pursuer reserved his right to common law action against that party. It was understood that under the Act the pursuer would have to pay them back if he recovered anything.” And reading the receipt along with the oral evidence, the majority of the Judges of the Second Division came, as I read their judgments, to the conclusion that this was not a payment under the Workmen's Compensation Act, but was an interim payment of the kind I have described as intended in the letter we have before us in the present case.

Therefore upon the ground that the pursuer has not recovered payment from some one liable to make payment to him under the Workmen's Compensation Act, I think that this action ought to be allowed to proceed, and that we should adhere to the interlocutor of the Lord Ordinary.

Page: 55↓