Scottish Court of Session Decisions

The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), sec. 1 (4), enacts—“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 to pay compensation under the provisions 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.…”

In October 1903 John Quinn, rigger, Glasgow, raised an action in the Sheriff Court at Glasgow against John Brown & Company, Limited, Clydebank Engineering and shipbuilding Works, Dumbartonshire, for the sum of £500, or otherwise for the sum of £218, 8s. as damages at common law and under the Employers' Liability Act 1880 respectively, on account of personal injuries sustained by him on 31st March 1903 when working in the defenders' employment.

On 31st July 1905 the Sheriff-Substitute ( davidson), after a proof, pronounced an interlocutor finding in fact, inter alia, “that no fault has been proved against the defenders or anyone in the position of superintendent in their employment within the meaning of the Employers’ Liability Act 1880,” assoilzieing the defenders, and “in respect it was stated at the bar that pursuer does not desire to proceed in terms of

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the Workmen's Compensation Act 1897” finding it unnecessary to pronounce further.

The pursuer appealed to the Court of Session.

On 16th May 1906 the Court was proceeding to dismiss the action on new findings in fact other than that no fault had been proved against the defenders or anyone in the position of superintendent, when the pursuer moved the Court to determine the amount of compensation due under the Workmen's Compensation Act, and referred to section 1, sub-section 4, of that Act. The defenders asked that the case should be continued, and the Court granted a continuation of a week.

At the continued hearing on 2nd June it was argued for the defenders—The Court which was to assess the compensation payable under the Workmen's Compensation Act was the Court in which the action was tried, i.e., in which proof is taken. The case should be remitted to the Sheriff to assess the compensation— Little v. P. & W. MacLellan, Limited, January 16, 1900, 2 F. 387, 37 S.L.R. 287.

Argued for the pursuer—In Little ( supra) there were no materials upon which the Court could have proceeded to assess compensation, there having been no proof on the merits. Here there were the necessary materials, and this was the Court which tried the case because it finally ascertained the facts on which the judgment was to proceed.

The Court pronounced this interlocutor—“Sustain the appeal and recal the said interlocutor appealed against: Find in fact … (5) that no fault has been proved against the defenders or anyone in the position of superintendent in their employment within the meaning of the Employers’ Liability Act 1880: Therefore dismiss the action, remit to the Sheriff to determine the amount due to the pursuer under the Workmen's Compensation Act 1897, and decern .…”