Scottish Court of Session Decisions

The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 30, enacts—“In cases originating in the Sheriff Court, … where the claim is in amount or value above fifty pounds, and an order has been pronounced allowing proof, … it shall, within six days thereafter, be competent to either of the parties who may conceive that the cause ought to be tried by jury to require the cause to be remitted to the Court of Session for that purpose, where it shall be so tried: Provided, however, that the Court of Session shall, if it thinks the case unsuitable for jury trial, have power to remit the case back to the

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Sheriff, or to remit it to a Lord Ordinary, or to send it for proof before a judge of the Division before whom the cause depends.”

Robert Mitchell Scorgie Barclay, electrical engineer's apprentice, Aberdeen, pursuer, brought an action of damages for £100 in the Sheriff Court at Aberdeen against T. S. Smith & Company, a firm of motor car proprietors in Aberdeen, defenders, in respect of personal injury sustained by him through being run down by a motor car owing to the fault of its driver, an employee of the defenders.

The pursuer averred, inter alia, that on 23rd September 1912, while cycling with three companions along the North Deeside Road towards Aberdeen, he was run down from behind by a motor car driven by a servant of the defenders. “The said four cyclists were struck violently, knocked down and injured. The right mud-guard of said motor car caught pursuer and dragged him along the road for about 20 yards. The car was going at a great speed and was a considerable distance past the point where the accident happened before the driver was able to stop it. (Cond. 4) The pursuer was severely injured. He sustained numerous and severe bruises on the body, arms, and legs. The cycle, worth seven guineas, was completely destroyed, and his clothing was also destroyed. The cycle was hired from a hirer, to whom the pursuer is liable for the value of said cycle and who is insisting on his claim. He was for several weeks completely incapacitated from work and has not yet fully recovered. The pursuer, from the combined effect of his direct physical injuries and of his being suddenly struck down in the dark by a car, the approach of which he did not hear, has sustained severe nervous shock. It is necessary for his efficiency as an engineer and for his working at said trade with safety to himself and to his fellow-workmen that his nervous system should be in good condition. The accident will probably have permanent effect on his nervous system, and may result in his earning capacity being permanently diminished. In the course of his work as an engineer it is necessary in order to allow him to get home for meals to use a cycle and ride through congested traffic in Aberdeen. Owing to the said shock he will be unable to ride a cycle where there is traffic and he will be handicapped in carrying on his said work.”

On 11th December 1912 the Sheriff-Substitute ( Louttit Laing) allowed a proof, and on 13th December 1912 the pursuer required the cause to be remitted to the Second Division of the Court of Session for jury trial.

Upon the case appearing in the Single Bills counsel for the defenders moved that it be remitted back to the Sheriff Court, and argued—The Court was entitled to exercise its discretion, and if it thought a case unsuitable for jury trial in the Court of Session could remit it back to the Sheriff for proof—Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 30. The present case was unsuitable for jury trial, because the injury averred by the pursuer was of a trifling character. In M'Nab v. Fyfe, July 7, 1904, 6 F. 925, 41 S.L.R. 736, the Court refused to allow a jury trial, although the injuries there averred were more serious than here, and that though the Court were proceeding under the Judicature Act (6 Geo. IV, cap. 120), sec. 40, which gave a narrower discretion than did the Sheriff Courts (Scotland) Act 1907, sec. 30.

Argued for the pursuer—The injury averred by the pursuer was serious, and the case was therefore suitable for jury trial in the Court of Session— Sharples v. Yuile & Company, May 23, 1905, 7 F. 657, 42 S.L.R. 538; Duffy v. Young, November 3, 1904, 7 F. 30, 42 S.L.R. 40.