Scottish Court of Session Decisions

The Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37) section 1 (2) ( b) enacts:—“When the injury was caused by the personal negligence or wilful act of the employer, or of some person for whose act or default the employer is responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the workman may, at his option, either claim compensation under this Act or take the same proceedings as were open to him before the commencement of this Act, but the employer shall not be liable to pay compensation for injury to a workman by accident arising out of and in the course of the employment both independently of and also under this Act, and shall not be liable to any proceedings independently of this Act except in case of such personal negligence or wilful act as aforesaid.” Section 1 (4)—“If, within the time hereinafter in this Act limited for taking proceedings, an action is brought to recover damages independently of this Act for injury caused by any accident, and it is determined in such action that the injury is one for which the employer is not liable in such action, but that he would have been liable

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to pay compensation under the provision of this Act, the action shall be dismissed; but the Court in which the action is tried shall, if the plaintiff shall so choose, proceed to assess such compensation, and shall be at liberty to deduct from such compensation all the costs which in its judgment have been caused by the plaintiff bringing the action instead of proceeding under this Act”

On 8th October 1903 John M'Donald senior and his son John M'Donald junior, miners, in the employment of James Dunlop & Company (1900), Limited, coalmasters, Calderbank, Airdrie, were killed by an accident arising out of and in the course of their employment. Mrs Rachel M'Vey or M'Donald, the wife and mother, presented a petition in the Sheriff Court at Airdrie in which she claimed as compensation under the Workmen's Compensation Act 1897 (1) £192, 18s. fid. as an individual and as tutor-at-law for her pupil children in respect of the death of her husband, and (2) £73 as an individual in respect of the death of her son. On the 30th December 1903 the Sheriff-Substitute (A. O. M. MACKENZIE) awarded the amount claimed under the first head of the claim. He, however, found as to the second head that Mrs M'Donald was not in the sense of the Workmen's Compensation Act 1897 a dependant of her son at the time of his death, although she actually received a contribution made by him to the family support, in respect that such contribution was in reality made to his father, upon whom lay the obligation of supporting the family.

On 30th September 1904 Mrs M'Donald presented another petition in the Sheriff Court, in which she sought to recover from James Dunlop & Company (1900), Limited, the sum of £500, or alternatively the sum of £197, 18s. 6d. under the Employers’ Liability Act 1880, upon averments to the effect that the death of her son was caused by the gross carelessness of the defenders, or by those for whom they were responsible. The defenders took the following preliminary plea—“Pursuer having in the exercise of her option, under section 1, sub-section 2 ( b), of the Workmen's Compensation Act 1897, elected to claim compensation under said Act from defenders, in respect of the death of her said son (said claim having been disposed of by interlocutor of the Sheriff-Substitute at Airdrie of date 30th December 1903) the present action is incompetent, and should be dismissed with expenses.”

On the 15th November 1904 the Sheriff—Substitute (A. O. M. Mackenzie) repelled this plea and allowed the pursuer a proof.

Note.—[ After narrating the circumstances and quoting the Act]—“It is argued that this sub-section puts the workman or his dependant, in the case of the injury having resulted in death, to his election between the remedy provided by the Act and that which was open to him before the Act came into operation, and that, his election once made, he is barred from going back upon it, even although it turn out that he is not entitled to the remedy which he has selected. In my opinion this argument is not well founded. If sub-section 2 ( b) be read in conjunction with sub-section 1, it is, I think, apparent that the case to which sub-section 2 ( b) refers in the words ‘in that case’ is the case of a workman who has a good claim both under the Act and independently of it, and accordingly it is with reference to that case that it gives the workman an option to select which of the two available remedies he prefers. It does not, in my opinion, contemplate the case of a workman or dependant upon whom the Act has conferred no benefit, and cannot fairly be read as meaning that the fact of such a workman or dependant having in error made a claim under the Act is to debar him from a remedy to which he had a right before the Act was passed. A reference to that part of the sub-section which gives protection to the employer appears to me to support this view, for what the employer is protected against is not the having claims made against him both under the Act and independently of it, but the being found liable on both heads.

“I do not, however, require to rely on my own opinion of the meaning of the Act, for I think the matter is settled in accordance with the view I have expressed by the case of Blain v. Greenock Foundry Company, 5 F. 893.

“In that case certain of the children of the deceased William Blain sued his employers for damages on account of his death. In defence it was pleaded, inter alia, that one of the pursuers, James Blain, was barred from suing in respect that he had previously made an unsuccessful claim under the Workmen's Compensation Act. This plea was repelled by Lord Kincairney, and his interlocutor was affirmed by the Second Division. The ground on which the claim of James Blain under the Act had been rejected was that he had no title, inasmuch as he had been only partially dependent on his father, and there were other claimants who had been totally dependent. His case was therefore identical for all practical purposes with that of the present pursuer.

“The same view has been taken by the Court of Appeal of Ireland. See Beckley v. Scott, L.R. (1902), 2 K.B. (Ir.) 504.

“I was referred to the case of Edwards v. Godfrey, L.R. (1899), 2 Q.B. 333, as an authority to the contrary. In this case it was held that a workman who had unsuccessfully sued his employer for damages, and who had failed to take advantage of the privilege given by section 1, sub-sec—tion 4, of the Act of 1897 to have compensation assessed by the Court before which this action was tried, was barred from making any subsequent claim for compensation. The point decided, therefore, was not exactly the same as that raised in the present action. At the same time it must be admitted that the opinion of Lord Justice Smith is expressed in terms applicable to the present case. But if that decision is an authority for the view maintained by the defender, it is in conflict with

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the case of Blain, and it is the latter case which I am bound to follow.

“I accordingly repel the defenders' first plea-in-law, and as no argument was submitted in support of the plea to the relevancy, I repel it also.”

The defenders appealed, and argued—The pursuer could not claim under the Workmen's Compensation Act, and, having failed in that claim, then claim at common law and under the Employers Liability Act, for the policy of the Workmen's Compensation Act was, that once the matter had been threshed out all questions were to be ended. That was seen by looking at section 1 (4), where the converse of the present case was provided for, and under that section it had been held in England— Edwards v. Godfrey, L.R. [1899] 2 QB 333—that a pursuer could not have one action and when he failed in that bring the other. He must exercise his option, and having done so he must abide by the decision in it. In a subsequent case— Rouse v. Dixon, L.R. [1904], 2 K.B. 628—the decision was to allow the pursuer to bring the second proceeding, but that was owing to the clearly taken distinction that in the first proceeding he had not prosecuted the matter to a final issue, and Edwards' case was there considered and not differed from. The pursuer here having deliberately elected to proceed under the Workmen's Compensation Act, and having pursued the matter to a final issue, was barred from bringing new proceedings. Blain v. Greenock Foundry Company, June 5, 1903, 5 F. 893, 40 S.L.R. 639—was not an authority on the point, for though it was raised the point was not gone into in the Division.

Counsel for the respondent and pursuer were not called upon.