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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Daid v. Coltness Iron Co., Ltd [1904] ScotLR 42_50 (04 November 1904)
URL: http://www.bailii.org/scot/cases/ScotCS/1904/42SLR0050.html
Cite as: [1904] SLR 42_50, [1904] ScotLR 42_50

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SCOTTISH_SLR_Court_of_Session

Page: 50↓

Court of Session Inner House First Division.

[Sheriff Court at Glasgow.

Friday, November 4 1904.

42 SLR 50

M'Daid

v.

Coltness Iron Company, Limited.

Subject_1Expenses
Subject_2Modification
Subject_3Appeal for Jury Trial
Subject_4Small Amount Awarded by Jury in Action Appealed from Sheriff Court.
Facts:

In an action of damages for personal injuries brought in a Sheriff Court and appealed for jury trial under the Judicature Act, held that while the Court has power to modify the expenses of the successful pursuer, it will not do so where the only ground adduced for modification is that, the smallness of the award (£25) proves that the case ought to have remained in the Sheriff Court, and where it is not shown that the pursuer

Page: 51↓

by selecting trial by jury incurred unnecessary or unreasonable expense.

Headnote:

Patrick M'Daid, residing at 37 Manse Street, Coatbridge, was injured while in the employment of the Coltness Iron Company, Limited, and on their premises, by a piece of coal falling upon him. He raised this action against them in the Sheriff Court at Glasgow, in which he sought to recover as damages £250 at common law', or alternatively £156—under the Employers Liability Act 1880.

Upon 24th February 1904 the Sheriff-Substitute ( Strachan) allowed a proof. The pursuer appealed to the First Division of the Court of Session and the case went to jury trial. The jury returned a verdict for the pursuer and awarded him £25 of damages. No tender had been made.

On the pursuer moving the Court to apply the verdict and for expenses the defenders asked that the expenses should be subject to modification looking to the smallness of the award.

Argued for the defenders—It was now an established rule that the Court would modify the expenses of a successful pursuer in a jury trial which owing to its trifling nature ought never to have been appealed into the Court of Session— Brennen v. Dundee and Arbroath Joint Railway Company, May 26, 1903, 5 F. 811, 40 S.L.R. 383; Lafferty v. Watson, Gow, & Company, Limited, June 3, 1903, 5 F. 885, 40 S.L.R. 622. This case was a fortiori of the previous cases, as evidenced by the smallness of the award, which was the only test. It might be said the appeal was in virtue of a statutory power; but though that were so, the Court had power to deal with the expenses, and if it thought right only allow them on the Sheriff Court scale— Jamieson v. Hartil, February 5, 1898, 25 R. 551, 35 S.L.R. 450; Dickie v. Scottish Co-operative Wholesale Society, Limited, November 17, 1903, 6 F. 112, 41 S.L.R. 64. Further, this case, while the appeal might be under the Judicature Act (6 Geo. IV. c. 120), section 40, was in substance one under the Employers Liability Act 1880 (43 and 44 Vict. c. 42), and the appeal was an evasion of that Act. An action founded on the Employers Liability Act 1880, which was brought into the Court of Session from the Sheriff Court, was by section 6 (3) of that Act subject to the condition contained in section 9 (2) of the Sheriff Courts (Scotland) Act 1877 (40 and 41 Vict. c. 50), that the Court if satisfied that the case might have been tried in the Sheriff Court might only allow to the party removing it therefrom Sheriff Court expenses— Kane v. Singer Manufacturing Company, May 21, 1904, 41 S.L.R. 571. The Court should therefore here modify to the Sheriff Court scale, or at least give a substantial modification.

Argued for the pursuer—There should be no modification here, for the pursuer was in exercise of a statutory right, and had obtained a substantial award although not as much as he considered himself entitled to— Casey v. Magistrates of Govan, May 24, 1902, 4 Fraser 811, 39 S.L.R. 635. Where as here there had been no abuse of the statutory power there should be no modification, unless as provided by section 40 of the Court of Session Act 1868 (31 and 32 Vict. c. 100), i.e., where the pursuer failed to obtain a verdict for £5.

At advising—

 Judgment:

Lord Kinnear—I do not think it necessary to express any opinion on the general question which was argued with so much citation of authority except this, that the power of the Court to relieve the losing litigant of any part of the expenses which may have been unnecessarily or unreasonably incurred by his successful opponent appears to me to be beyond question. Whether the mere fact that the sum awarded by the jury is a very small one is sufficient to show that the expense of a jury trial was unnecessary and unreasonable is a very different matter. My own view is, that when that question arises it must be determined, not merely by reference to the amount awarded by the jury, but after taking into account all the circumstances of this particular case, except perhaps in the case which is specially regulated by the only statutory enactment which deals with this matter—I mean the 40th section of Court of Session Act of 1868. That enactment does not apply to the present case, because the pursuer recovered a much larger sum than £5, and taking the whole circumstances into account I think that the pursuer in this case ought to have his expenses as taxed without further deduction. It is quite true that the amount of damages awarded him is small, and is below the sum of £40, which is the lowest sum for which he can appeal to this Court for jury trial under the Judicature Act; but I see no reason to suppose that he and his advisers—because this is a matter which is considered by the advisers of a man in the circumstances of the pursuer rather than by himself—did not honestly believe that he should have a larger sum than £40. I think he might fairly maintain to the jury that a larger sum than that was due to him, and indeed, although I am perfectly satisfied as to the sum given by the jury, I should not have been surprised if it had been somewhat larger. Juries differ on that question; and I see no reason to doubt that a demand for something more might honestly have been made. I think the case must be looked at in this way, because in my opinion the action is founded on a liability at common law, and was properly appealable under the Judicature Act. It is true that the pursuer made an alternative claim under the Employers Liability Act, but in my opinion it is clear that the case, as established by the verdict of the jury, was a valid case at common law, and therefore we do not require to consider the effect of the special clauses in the Employers Liability Act regulating the conditions under which an appeal under that statute may be taken. Accordingly I deal with the case as an appeal under the Judicature Act.

Page: 52↓

Now, the sum actually awarded is small but I do not think the question between the parties as it went to the jury was really a question of amount at all, The defenders might have made it a question of amount by making a tender. They did not think fit to do so, but, on the contrary, they maintained vigorously, as they were quite entitled to do, that they were not answerable for any fault whatever, but that they had exercised all reasonable care and prudence in taking precautions for the safety of their workmen. That was the question, and on that the jury found a verdict against them. That was a question of fact well fitted for jury trial, because it depended on conflicting evidence which was mainly circumstantial, and although I am quite satisfied with the verdict of the jury, the facts as presented to them might have suggested different views to different minds. It is therefore quite possible that if the case had gone to the Sheriff his judgment might have been appealed to the Sheriff-Depute, and his judgment again to this Court, so that there might have been three discussions instead of one. It is therefore by no means certain that the course now recommended to the pursuer would have been less expensive than that which he chose for himself. But then I am of opinion that it was for his advisers to consider which course should be taken, and that the pursuer had a right under the statute, if so advised, to say whether he preferred the verdict of twelve average jurymen to settle the matter once for all, or to have the judgment of a single. Judge subject to a first and second, and possibly even to a third appeal, if any question of law could have been extracted from the findings of fact.

On the whole case therefore I am of opinion that there is not sufficient ground for depriving ths pursuer of the small amount of damages awarded to him by the jury by the process of depriving him of the expenses of obtaining the award. I think the pursuer has been successful, and is therefore entitled to his expenses, and that there is no special reason for diminishing his claim.

The Lord President, Lord Adam, and Lord M'Laren concurred.

The Court applied the verdict and gave decree for the amount of the award with expenses.

 Counsel:

Counsel for the Pursuer and Appellant— Gunn. Agents— Mackay & Young, W.S.

Counsel for the Defenders and Respondents— Hunter. Agents— W. & J. Burness, W.S.

 1904

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URL: http://www.bailii.org/scot/cases/ScotCS/1904/42SLR0050.html