Scottish Court of Session Decisions

Peter Ward junior, appellant, being dissatisfied with an award by the Sheriff-Substitute ( Shennan) at Hamilton in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), brought by the appellant against Gideon Walker, wood-flour manufacturer, Blantyre Sawdust Mill, Blantyre, respondent, appealed by Stated Case.

The Stated Case set forth—“This is an arbitration in a claim for the recovery of compensation in respect of the death of Euphemia Ward from accident alleged to have arisen out of her employment with the respondent. The dependant for whom compensation is claimed is the illegitimate son of the deceased, born on 8th August 1912. Proceedings were instituted on 22nd August 1918 at the instance of Peter Ward senior, labourer, 18 Middle Row, Blantyre, who designed himself as tutor and administrator-in-law for his infant grandson Peter Ward junior. In his averments Peter Ward senior stated that he was the father of the deceased Euphemia Ward, and that Peter Ward junior was her illegitimate son. After various adjournments at the instance of the pursuer proceedings were sisted on his motion on 17th December 1918. On 2nd May 1919, on the pursuer's motion, the sist was recalled, and on 16th May 1919 he lodged a minute moving the Court to amend the instance so that the action should proceed in the name of Peter Ward junior alone. On 22nd May 1919 the agent for Peter Ward junior lodged a motion craving the Court to appoint Peter Ward senior tutor ad litem to the pupil Peter Ward junior. I heard parties' procurators on 23rd May 1919. On 27th May 1919 I gave judgment. I allowed the instance to be amended as craved by deleting the name of Peter Ward senior therefrom, leaving the action to proceed at the instance of Peter Ward junior. I refused the motion to appoint a tutor ad litem to Peter Ward junior as incompetent, and in respect that there was no longer any pursuer in the action I dismissed it.”

The questions of law were—“1. Was it competent for me to make the instance valid by appointing a tutor ad litem to the pupil pursuer? 2. Was I right in dismissing the action?”

The note appended to the award was as follows:—“This is an action to recover compensation for behoof of the illegitimate son of the deceased Euphemia Ward, who was killed by accident in the defender's premises while she was in their employment. The action was raised originally by Euphemia Ward's father as tutor and administrator-in-law for her child. Recognising that he does not hold that position, he has withdrawn from the case, leaving the action to proceed at the instance of the pupil child, who was born on 8th August 1912. This instance is plainly incompetent, and the motion now made is that I should make the instance valid by appointing a tutor ad litem to the pupil. As the law at present stands I am of opinion that it is not competent for me to make the appointment craved. The question was discussed very fully by Lord Johnston in Macdonald's Trustees v. Medhurst, 1915, S.C. 879, and a reasoned opinion was delivered against the competency of appointing a tutor ad litem to a pupil, In my view it is my duty to follow that opinion. It is obvious that there is danger of serious hardship being entailed on this child if it has a good claim. I know of no method by which a pupil having no tutor can have its rights vindicated at law except by having a factor loco tutoris appointed, and the expense entailed would make a serious inroad on the compensation awarded. Of course the principle relates generally to the vindication of the rights of pupils without tutors, and it is not limited to the enforcement of claims under the Workmen's Compensation Act. But that Act definitely recognises the claim of illegitimate children, and I venture to suggest that a method of giving effect to the rights conferred by the Act might be found through clause 6 of Schedule II, which provides that ‘rules of court may make provision for the appearance in any arbitration under this Act of any party by some other person.’ It does not seem unreasonable to hold that a pupil may be a ‘party’ in the sense of this clause, although it has no legal persona.”

Argued for the appellant—If any specialty arose out of the fact that the present was a claim for workmen's compensation the specialty was in favour of the appellant. Failure of the parties to agree was a condition-precedent to an arbitration—Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), section 1 (3)—but the fact that a pupil could not make an agreement was no bar to an arbitration by him. In every case in which a pupil claimed there necessarily was a failure to agree. On the other hand the Act clearly contemplated payments being made to persons under disabilities—First Schedule, sections 5 and 7. No rules of Court, i.e., Acts of Sederunt, had been made under section 6 of that schedule. It was the regular practice, at least in the Sheriff Court at Edinburgh, to administer sums so paid into Court. Further, under the Act a pupil had a statutory right to compensation, of which nothing in the common law could deprive him. At common law the question was not one of logic or principle, but rather one of practice and convenience. Practice was clearly established to the effect that a pupil could bring an ordinary action to the notice of the Court and carry it on to the stage of litiscontestation, at which stage or before it a curator ad litem was appointed—Ersk. Inst., i, 7,13; Bell's Prin., sec. 2067; Fraser, P. & C. (3rd ed.), p. 208; Mackay's Manual, pp. 147 and 148; Dove Wilson, Sheriff Court Practice (4th ed.), p. 97. Practice had been

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affirmed by decision— Johnston v. Johnston, 1740, M. 16, 346; Macneil v. Macneil, 1798, M. 16, 384; Sinclair v. Stark, 1828, 6 S. 336, per Lord Balgray at p. 338; Young, 1828, 7 S. 220; Keith v. Ardier, 1836, 15 S. 116; Earl of Craven v. Lord Elibank's Trustees, 1854, 16 D. 811. Swan's Trustees v. Swan, 1912 S.C. 273, 49 S.L.R. 222, showed the corresponding practice in the case of a lunatic. Mackenzie's Trustees v. Mackenzie, 1908 S. C. 995, 45 S.L.R. 785, was a case of a minor defender. Macdonald's Trustee v. Medhurst, 1915 S.C. 879, 52 S.L.R. 698, was distinguished, for the question arose in a special case, which could only proceed upon a contract as to the admitted facts. Further, a pupil was not a total nonentity in law. He might be guilty of contributory negligence— Cass v. Edinburgh Tramways Company, 1909 S.C. 1068, 46 S.L.R. 734—and of crime—Ersk., iv, 4, 6. In England a next friend might be appointed after a suit had been initiated— In re Brocklebank, 1877, 6 Ch. D. 358. The argument for the respondent ignored the difference between a pupil without tutors and a pupil having tutors, in which case the tutor must sue, which was the reason for the decision in Carrigan v. Cleland, 1907, 15 S.L.T. 543. The arbitrator should have appointed a curator ad litem and allowed the action to proceed.

Argued for the respondent—The question in the case was not academic, for if a pupil sued and obtained decree, he having no locus standi, the defender might be sued again. Further, a reckless or malicious person might bring the action in the pupil's name, and even if a curator ad litem was appointed there would be no recourse for expenses, as the curator was not liable. Under the Act of 1906 it was necessary that a question should have arisen before arbitration was competent—C.A.S., 1913, L, xiii, 2; Act of 1906, section 1 (3). With a pupil there never could be an agreement. The position was analogous to that of a special case in which a preliminary agreement was necessary. That differentiated a case under the Act of 1906 from the common law, and in such a case the law as laid down in special cases, such as Macdonald's case, per Lord Johnston, and in Park v. Park, 1876, 3 R. 850, 13 S.L.R. 550, should be applied. The Act of 1906 did not contemplate proceedings by pupils. Section 6 of the Second Schedule was limited to persons properly in court. In any event it was doubtful if section 6 applied to Scotland, for representation in Court was provided for by C.A.S., 1913, L, xiii, 1. Sections 5 and 7 of the First Schedule were not in point, and in any event they applied to majors. Apart from the Act of 1906 the appellant had stated no argument on the second question of law. Upon the first question of law the text writers, e.g., Mackay's Manual, were in favour of the appellant, but the authorities on which they relied did not support the proposition they laid down, and in any event the practice had arisen from a failure to keep in view the difference between pupils and minors. Johnston's case was possibly an action by the pupil against his father, or where the father had an adverse interest. Macneil's case was a question between the pupil and his father. In Hamilton, 1861, 24 D. 31, the father having an adverse interest made the application for a curator ad litem, and the question of competency was not debated. In Sinclair's case and Calderhead's Trustees v. Fyfe, 1832, 10 S. 582, the opinions were obiter, and in the former there was no proper contradictor. A pupil had no locus standi by himself, and could not come into Court merely to apply for the appointment of a curator ad litem— Knolls, 1610, M. 8968; Carrigan's case. His position was strictly analogous to that of an insane person. Practice had crystallised in the case of an insane person. An action could not be raised in his name and a curator ad litem appointed when the action came into Court— Reid v. Duff, 1839, 1 D. 400, disapproving of Darling, Practice of the Court of Session, p. 96; Mackenzie, 1845, 7 D. 283; Anderson's Trustees v. Skinner, 1871, 8 S.L.R. 325; Calver v. Howard, 1894, 22 R. 1, 32 S.L.R. 3; Swan's case. Bogie v. Bogie, 1840, 3 D. 309, was a very special case. Further, the application for a curator ad litem was to the nobile officium, and it was doubtful if the Sheriff could make such an appointment. The Sheriff could, however, appoint a factor loco tutoris. Such an appointment would be necessary at some time in the present case, and it was the proper course— Anderson v. Muirhead, 1884, 11 R. 870, 21 S.L.R. 597—just as it was in the case of an insane person. Brocklebank's case did not apply in Scotland. Ersk. Inst. was not in point. Bell's Prin. was not the original text.

At advising—