Scottish Court of Session Decisions

The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51) enacts—Section 31—“ Jury Trial in Sheriff Court.—… The verdict of the jury shall be applied in an interlocutor by the sheriff … and may, subject to the provisions of this Act, be appealed to either Division of the Court of Session, but that only upon one or more of the following grounds—(1) that the verdict has been erroneously applied by the sheriff.”

Rules 137, 147, and 148 contained in the First Schedule are quoted supra in rubric.

Mrs Jeanie M'Ghie or Adair, Glengar-nock, and James Adair and others, the widow and children respectively of the deceased Robert Adair, pursuers, brought an action in the Sheriff Court of Ayrshire at Kilmarnock against David Colville & Sons, Limited, Dalzell Steel and Iron Works, Motherwell, defenders, in which they claimed £1000 at common law, or alternatively £780 under the Employers' Liability Act 1880, as damages in respect of the death of Robert Adair. The deceased was employed in driving a tractor engine which carried steel ladles filled with molten metal from the furnace to moulding pits into which the metal was run. All the pits were under cover except one which was seldom used. The accident which caused deceased's death was due to an explosion in this pit, which occurred while the deceased was emptying molten metal into the pit on the instructions, as the pursuers averred, of the foreman in charge, David Graham, Glen-garnock. They averred that the pit was defective owing to dampness, and that the dampness generating steam through contact with the molten metal, caused the explosion, that the defenders were responsible for the defective condition of the pit, of which they knew or ought to have known, and that they made no sufficient inspection of it before allowing it to be used; and further, that their foreman, whose instructions the deceased was bound to obey, was negligent (1) in using the pit for the purpose, (2) in not making certain that the pit was free from dampness.

On 20th December 1921 the Sheriff-Substitute ( Dunbar) appointed the cause to be tried before a jury of seven persons, and on 6th March 1922, a jury having been empanelled, the case was tried before the Sheriff ( Lyon Mackenzie).

The agents for the parties lodged in process a minute agreeing to dispense with a record of the proceedings.

At the close of the trial on 7th March the Sheriff proponed the following questions to the jury:—“1. Whether the personal injuries sustained by the deceased Robert Adair while employed as a tractor engine-man at the furnaces of Glengarnock belonging to the defenders, on the 22nd day of November 1920, which resulted in his death, were caused by reason of the defective condition of the outside pit in the defenders' works, and if so in what respect? 2. Whether the personal injuries sustained by the deceased Robert Adair, resulting in his death, were caused by the negligence of David Graham, Glengarnock, in the exercise of superintendence entrusted to him by the defenders, and if so in what respect? 3. Whether the personal injuries sustained by the deceased Robert Adair resulted from the deceased having conformed to an order negligently given by the said David Graham, to whose orders or directions at the time of the injury he was bound to conform, and what was that order?”

The jury returned the following answers:—“1. We are of opinion that the accident was caused by the pit being unsuitable owing to dampness through the works having been closed and the pit not in use. 2. We answer this question in the negative. In our opinion there was no negligence on the part of David Graham, who we consider did all that was possible in the circumstances. 3. We answer this question in the negative, not being satisfied that David Graham gave any order, but that the deceased Robert Adair returned to his position from a sense of duty. The jury assess the damages (1) under common law at £800, and (2) under the Employers' Liability Act at £566, 3s. 11d.”

On 7th March 1922 the Sheriff pronounced this interlocutor—“The Sheriff having heard parties' agents on the motion of pursuers' agents to have the foregoing verdict applied, makes avizandum.”

On 16th March 1922 the Sheriff pronounced this interlocutor—“Finds in law that in respect the answers returned by the jury to the questions proponed to them do not

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support the case laid on record either at common law or under the Employers' Liability Act 1880, the verdict is for the defenders: Applies the verdict accordingly, reserving to the pursuers any rights competent to them under section 1 (4) of the Workmen's Compensation Act 1906: Therefore assoilzies the defenders from the conclusions of the action, and decerns.”

Note.—“The only question of difficulty in applying the verdict of the jury in this case arises from their answer to the first question proponed to them.

It was strenuously argued on behalf of the pursuers that upon a true interpretation thereof they were entitled to a verdict both at common law and under the Employers' Liability Act 1880, and there were cited to me in support of that contention the following authorities, viz.— Brydon v. Stewart, (1855) 2 Macq 30; Wilson v. Merry & Cuninghame, (1868) 6 Macph. (H.L.) 84, L.R., 1 H.L. Sc. 326; Smith v. Baker & Sons, [1891] AC 325; Williams v. Birmingham Battery and Metal Company, [1899] 2 QB 338; Duthie v. Caledonian Railway Company, (1898) 25 R. 934, 35 S.L.R. 726; and Black v. Fife Coal Company, Limited, 1909 S.C. 152, 1912 SC (HL) 33, 49 S.L.R. 228.

Premising that at common law it is the duty of a master towards his servant to use reasonable care to see that the plant is fit and sufficient, and if that condition is fulfilled a master will not be liable for a defect, he will be liable only if it were known to exist or was such as should have been discovered by him, and if having provided sufficient plant which was available the plant has not been properly used, the master will not be liable— Weems v. Mathieson, (1861) 4 Macq. 215, and Wilson v. Merry & Cuninghame, supra. I come to consider whether the pursuers are entitled to a verdict at common law.

When the first answer of the jury is examined they do not say that the pit was defective. All they do affirm is that the accident was caused by the pit being unsuitable owing to dampness through the works having been closed and the pit not in use.

Now in my opinion this answer does not establish any proposition which imputes legal liability to the defenders, as there is a wide distinction betwixt a pit being defective in construction, and unsuitable to the purpose for which on a particular occasion it is used.…

To entitle the pursuer to a verdict under the Employers' Liability Act 1880 they would require not merely to obtain an affirmative answer to the first question, but would also, to satisfy the requirements of section 11 (1) of the Act, require to prove that the defect found to exist arose from or had not been discovered or remedied owing to the negligence of the defenders, or of some person in the service of the defenders and entrusted by them with the duty of seeing that the plant was in a proper condition. This was not proved, and no such case is averred on record.

As the jury answered questions 2 and 3 in the negative any case under these heads also fails.”

The pursuers appealed to the Court of Session. The note of appeal was based on Form M of the First Schedule to the Sheriff Courts (Scotland) Act 1907, as prescribed by section 148 of the First Schedule, quoted supra in rubric.

The note of appeal, after narrating the proceedings of which an account is given supra and stating that the agent for the pursuer proponed certain questions to the jury which the Sheriff declined to put, continued—“The said Mrs Jeanie M'Ghie or Adair and others, the pursuers, appealed to the First Division of the Court of Session upon the following grounds

( a) That in the interlocutor complained of, the verdict was erroneously applied, in that (1) It is bad in law. (2) Rule 145 of the First Schedule to the Sheriff Courts (Scotland) Act 1907 (7 Ed. VII., cap 51) as amended by the Sheriff Courts (Scotland) Amendment Act 1913 (2 and 3 Geo, V., cap. 28) was not complied with, as the jury was discharged before the verdict returned by them was recorded on the interlocutor sheets and signed by the Clerk of Court, and that David Carruthers, who signed the interlocutor sheets as Clerk of Court recording the verdict of the jury, was not present in Court when the jury gave their verdict and did not hear the verdict given by the jury. (3) At the trial the Sheriff refused to put certain questions to the jury which he was asked to do by the agent for the pursuer. (4) At the trial the Sheriff insisted on putting a construction on the jury's answer to the first question contrary to the meaning intended by the said jury. (5) At the trial the Sheriff refused to note the objection of the pursuers' agent to the wrong construction which he was putting on the jury's answer to the first question.

( b) That the Sheriff misdirected the jury in regard to (1) The questions put by him to the jury. The questions were framed as for a special instead of a general verdict. The questions were not framed in terms of the record and were liable to mislead the jury, or to induce them to so frame the answers thereto that they might be misconstrued. Further, the Sheriff refused to put certain questions to the jury proponed by the pursuers' agent, and if the Sheriff had put these questions no misconstruction of their answers would have been possible. (2) The answer returned by the jury to these questions. The first answers were given verbally by the foreman of the jury, and the answer to the first question was in the affirmative. The Sheriff wrote it out, and it is so framed by him that it is liable to be construed in a way quite different from what was intended by the jury. Reference is made to the note at the foot of the Sheriff's questions—‘The jury awarded £800 as damages.’ (3) The Sheriff's nsistence that the construction which he put on answer 1 was the correct one. It was pointed out by pursuer's agent that such construction was wrong. The Sheriff refused to listen to such objection and on being asked to note the objection he refused.

In the event of the Court refusing the appeal on the ground of incompetency, the

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pursuers crave the Court to hear and sustain the appeal against the said interlocutor in the exercise of the Court's nobile officium in order to prevent what would operate as a gross injustice towards the pursuers by the Sheriff's refusal to apply the verdict brought in by the jury, and intended by them to be in favour of the pursuers.”

The defenders objected to the competency of the appeal, and argued—By lodging their minute dispensing with shorthand notes the pursuers had barred themselves from appealing—Rule 147 of the Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), First Schedule. There might have been a certain irregularity of procedure in the present case, but there being no record of the proceedings it was impossible to review it. Rule 147 had been enacted for the very purpose of preventing such inquiries as this. The pursuers should have proceeded by way of reduction. The nobile officium could not be invoked to override an express statutory exclusion of appeal— MacGown v. Cramb, 1897, 24 R. 481, and per Lord Adam, at p. 482, 34 S.L.R. 345.

Argued for the pursuers—The appeal was competent. The procedure followed had been quite ultra vires. Where irregularities had been committed by a judge of an inferior court of so grave a nature as would lead to a miscarriage of justice, the Court of Session had power to review it— Brown v. Heritors of Kilbery, 1825, 3 S. 480, affd. 1829, 3 W. & S. 441; Hattie v. Leitch, 1889, 16 R. 1128; United Collieries, Limited v. Gavin, 1899, 2 F. 60, 37 S.L.R. 47. The interlocutor purported to apply the verdict, but it was really the Sheriff's verdict. In such a case reduction was not necessary, and procedure by way of appeal could not be said to override the statute, because the statute assumed that the procedure was correct.