Scottish Court of Session Decisions

LORD WALKER'S OPINION.—In this case the accident happened in Wales, where the pursuer was employed by a Glasgow firm of civil engineers. The pursuer founds on breach of duty by one of his fellow employees, and alternatively and in any event on breach of his employers' duty. The defenders have stated a plea to the relevancy of the action, and in support of that plea Mr Sutherland's only contention has been that the pursuer has failed to make any averment of what is the law of Wales applicable to the case; a matter which, he says, is a matter of fact which must be averred in order to make the case relevant.

Now, the substance of the pursuer's averment, on the first leg of his case, is that it was the defenders' servant's duty to take reasonable care for the safety of those acting under his instructions, and, in support of the second leg, that it was the defenders' duty to take reasonable care for the safety of the pursuer, and to provide and enforce a reasonably safe and sufficient system of working. To both of these averments the defenders have answered that they admit that certain duties were incumbent on their servant and on themselves. No mention of law is made on averment by either party.

In essence, I think that the averments of duty, whether of the fellow servant or of the defenders, are averments of fact, and so capable of being read as averments of the lex loci. However that may be, I should have thought that the common-sense and practical way of looking at the matter was that, if it was suggested that there was any relevant difference between English and Scots law on the matter of duties owed to a servant, the burden would have been on the person founding on the difference to allege that difference. I do not say that that is necessarily the case in all questions of foreign law, but it is, I think, the reasonable approach in relation to the duties that arise between master and servant. There is support for the view that the lex loci will be presumed to be the same as the lex fori unless and until a difference is alleged and proved: see Lord Salvesen's opinion in Stuart v. Potter, Choate & Prentice, 1911 1 S. L. T. 377, at p. 382. After saying that foreign law was a question of fact, he proceeds:

"and in order that a question of foreign law may competently be remitted to probation, distinct and pointed averments must be made as to the alleged difference between the foreign law and the law of Scotland."

I was referred to the somewhat complicated case of M'Elroy v. M'Allister, 1949 S C 110. There, as here, the accident had happened south of the Border and the action was brought in our Courts. But in that case the accident had proved fatal, and was brought by the relatives. The action had two legs. The first was the simple claim for solatium and loss of support, such as Scots law gives; the idea being that the earlier case of Naftalin might be reconsidered. The second leg of the case was an alternative one, that, if the remedy of solatium and loss of support which Scots law affords could not be obtained in respect of the wrong committed in England, then the pursuers should have the remedy prescribed by English law, and particularly under Lord Campbell's Act of 1846. But the time limit for bringing an action in England had expired, and the question under English law was as to whether the time limit in the English statute merely precluded an action being brought in England, or whether it altogether extinguished the right of damages. It was, I think, in reference to that problem that the Lord President (Cooper), at p. 137, pointed out that a pursuer who founds on foreign law ought to make a sufficiently specific and relevant case as to his rights under that foreign law. Where, however, a pursuer is not expressly founding on some specialty of foreign law, the presumption for him, and against him, is that the law applicable to the case does not differ from Scots law. Accordingly, I shall repel the defenders' plea to relevancy and approve of the issue.