Scottish Court of Session Decisions

John Wood, formerly commission agent, Manchester, was a passenger in a North British Railway train from Glasgow to Edinburgh upon 21st June 1888. Near Bonnybridge Station a goods train passed, going in the opposite direction. Several pit-props fell off the goods train, and one was forced through the door of the carriage in which Wood was seated. Wood was thrown across the carriage and struck his head, and he sustained certain trivial external injuries from broken glass. He was visited by Dr Heron Watson, on behalf of the North British Railway Company, upon the day of the accident and upon the following day. He was also visited two or three times by a clerk from the railway company, who upon 30th June paid him £27, for which he granted the railway company a discharge, which bore that he accepted that sum in full of all claim competent to him in respect of injury and loss sustained in the accident.

In January 1890 he raised an action against the North British Railway Company for £5000 for injuries sustained by him in this accident.

The answer of the pursuer to the defenders' statement of facts, which set forth the fact of the discharge, was as follows—“Admitted that the pursuer took the £27, and gave the receipt. It does not discharge, and was not understood by the pursuer to discharge, his right to make any further claim against the defenders. The defenders' representative assured the pursuer that he was suffering only from a slight nervous shock, and that he would be all right in a week or two. The pursuer had no one to consult, either agent or doctor. As the event has turned out, he is helpless for life.”

The railway company pleaded, inter alia—“(3) In respect of the settlement and document quoted in the defenders' statement, the defenders should be assoilzied.”

The following issues were proposed by the pursuer, viz.—“Whether, on or about 21st June 1888, and at or near Bonnybridge Station on the defenders' line of railway, the pursuer was injured in his person through the fault of the defenders, to the loss, injury, and damage of the pursuer? Damages laid at £5000. Or, Whether, when the pursuer signed the receipt mentioned in the record, he understood that he thereby discharged his claims against the defenders in full?”

Upon 30th May 1890 the Lord Ordinary ( Kinnear) reported the case to the Lords of the Second Division.

“ Note.—The Lord Ordinary reports this case, because while he thinks that a relevant case has been stated, and that the action ought not to be dismissed, he is unable to approve of one of the issues proposed by the pursuer.

The first issue is in ordinary terms, and is admittedly a proper issue if the pursuer has not discharged his claims. But he has granted a discharge whereby he accepts of the sum of £27 ‘in full of all claims competent to him in respect of injury and loss sustained” by him in consequence of the accident on the North British Railway, of which he now complains. The defenders, founding upon his discharge, plead that the action cannot be maintained, because the pursuer's claim has been settled and paid.

The pursuer may be entitled to set aside this discharge if it was impetrated by the defenders, or if it was granted under error induced by the representations of their agent. But under the issue he proposes he would be entitled to a verdict on the ground of a mere mistake on his own part, for which the defenders were in no way responsible.”

The pursuer argued that he was not barred by the discharge from insisting in the action, and referred to the case of M'Donagh v. P. & W. Maclellan, June 18, 1886, 13 R. 1000.

Upon 17th June 1890 the following interlocutor was pronounced—“The Lords having heard counsel for the parties on the report by Lord Kinnear, of consent remit to his Lordship with instructions to allow the parties a proof of their averments made upon record.”

At the proof the facts stated above were brought out, and the pursuer deponed that since the accident he had been unable to return to work. He had suffered, and was still suffering, from severe nervous shock. He complained of stiffness in his neck, pains in his head, sleeplessness, irritability, inability to walk any distance, inarticulateness of speech, and loss of memory. When he granted the discharge founded upon by the defenders he was not in a fit state to transact business. He only took the money as a payment to account, and never meant to renounce all claims against the railway company. Three medical witnesses corroborated his statements as to the state of his health, and attributed it to the accident.

On the other hand, a lady who had been in the same railway carriage deponed that none of the eight people in the carriage received any external injuries, that

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there was no great shock, but that they were all considerably frightened. A doctor from Doune deponed to his treating the pursuer for rheumatism, and to his having met him walking six miles from home. Dr Heron Watson said there was nothing organically wrong with him. He had received a mental shock, and was suffering from treating himself so long as an invalid, and that he would be much better if he returned to work.

By joint-minute the defenders admitted that the accident happened through their fault.

Upon 22nd July 1890 the Lord Ordinary decerned against the defenders for the sum of £500 and expenses.

The defenders reclaimed, and argued—(1) Upon the discharge—The pursuer had renounced any claim he had against the company. But even if it were not an absolute bar to the pursuer's success, it laid a heavy onus upon him of showing that circumstances had altered since he granted the discharge. The discharge was evidence tending to prove that he had not been so severely injured as he desired now to make out. (2) Upon the evidence—He had received no external injuries. There was no trace of organic disease caused by the accident. He had received a fright or mental shock, but for that he was not entitled to recover— Victorian Railways Commissioners v. Coultas, February 4, 1888, L.R., 13 App. Cas. (P.C.) 222. Even if the shock could be called physical, it had been greatly exaggerated. If £27 was too little, £500 was too much, and should be modified.

Argued for the pursuer—There was no reason to disturb the Lord Ordinary's judgment. The sum awarded was not too large unless the pursuer was shamming. His witnesses deponed to his being in a very critical state of health, and even Dr Watson did not say that he was perfectly well. A nervous shock was a very insidious form of injury. He could not tell at once how much his health was impaired. When he granted the discharge he did not know how serious his case was, and taking £27 in a case justifying a verdict for £500 could not bar the pursuer's right of action. That he had provisionally settled with the company, and had no trial impending, would have hastened his recovery if he had been suffering only from fright.

At advising—