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 £50, 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 case ought to be tried by jury, to require the cause to be remitted to the Court of Session for that purpose, when 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 Sheriff. …”

Joseph Monaghan, steel dresser, Glasgow, pursuer, on behalf of his pupil son Robert Wyllie Monaghan, aged eight years, brought on 27th June 1916 an action in the Sheriff Court of Glasgow against the United Cooperative Baking Society Ltd., Glasgow, defenders, for payment of £200 as damages in respect of injuries sustained by his son through having been knocked down and run over by a motor van belonging to the defenders on 16th July 1915.

The pursuer averred—“(Cond. 3) On the afternoon of Friday 16th July 1915, and as the said Robert Wyllie Monaghan was crossing from the north-east to the southwest side of London Road, Glasgow, at an angle and at a point opposite Belvidere Hospital there, he was knocked down and run over by a motor car belonging to the defenders, which was proceeding in a south-easterly direction along London Road aforesaid, and which was being driven by Michael Hanlon, a motor-man in the defenders' employment, for whom they are, and were at the time of the accident

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above condescended on, responsible.… (Cond. 5) The said Robert Wyllie Monaghan was thrown to the ground with great force and run over by said motor car, and he sustained concussion of the brain, and was badly cut, bruised, and injured, particularly about the head, elbows, and knees. He was rendered unconscious and was carried into Belvidere Hospital aforesaid, where he received first aid, after which he was removed in a dazed condition to the Royal Infirmary, Glasgow, where he remained for medical and surgical treatment for about three weeks, when, owing to an outbreak of fever in the ward, he had to be removed to his own home, after which he continued to attend said infirmary as an out-patient till the end of September or beginning of October 1915. In consequence of said accident the said Robert Wyllie Monaghan suffered great pain, his nervous system sustained a severe shock, his general health has been much impaired, and he has been seriously and permanently injured and disfigured.”

The Sheriff-Substitute ( Dods) having allowed a proof, the pursuer required the cause to be remitted to the Second Division of the Court of Session for jury trial.

In the Single Bills counsel for the defenders moved that the cause be remitted back to the Sheriff Court, and argued—There was no evidence to justify a reasonable jury awarding £50 in damages. Only a claim for solatium had been made, but none for patrimonial loss. The boy had only spent three weeks in hospital and had lost nothing while there. The scalp wounds which were alleged had not resulted in any disfigurement of the boy's face, nor could the shock to his nervous system be shown to have been severe. The pursuer had delayed for nearly a year in bringing the action. The averments rendered it improbable that a jury could possibly award £50 of damages, and the case was therefore unsuitable for jury trial— Greer v. The Corporation of Glasgow, 1915 S.C. 171, per Lord Skerrington at p. 174, 52 S.L.R. 109. Mackie v. Davidson, 1913 S.C. 675, 50 S.L.R. 461; Barclay v. Smith & Company, 1913 S.C. 473, 50 S.L.R. 308; Smellies v. Whitelaw, 1907, 44 S.L.R. 586; M'Laughlan v. Clyde Valley Electrical Power Co., 1905, 8 F. 131, 43 S.L.R. 25; Sharples v. Yuill, 1905, 7 F. 657, 42 S.L.R. 538; M'Nab v. Fyfe, 1904, 6 F. 925, 41 S.L.R. 736, were also referred to.

The pursuer argued:—The pursuer did not feel obliged to enter into details of the permanent impairment of health suffered by the boy. It was all the symptoms taken together which went to make up the total impression of ill-health resulting from the accident. The child experienced a great fright, sustained several cuts, and was in a wretched state of health for a year. In the case of Sharples ( cit.) Lord Dunedin's utterance on amount of damages was very short and must be strictly construed. The cause was one suitable for trial by jury in the Court of Session.

At advising—