Scottish Court of Session Decisions

Mrs Jeanie M'Gliie or Adair, Glengarnock, and others, the widow and children of the deceased Robert Adair, pursuers, brought an action against David Colville & Sons, Limited, Motherwell, defenders, for reduction of a verdict returned by a jury on 7th March 1922 in a trial before the Sheriff of Ayrshire ( Lyon Mackenzie) and the jury in question in an action at the instance of the pursuer against the defenders in the Sheriff Court of Ayrshire at Kilmarnock, and of a decree dated 16th March 1922 pronounced by the Sheriff applying the verdict, and for a new trial.

The averments of the pursuers in the original action sufficiently appear from the previous report of the case (59 S.L.R. 482).

The pursuers pleaded, inter alia—“1. The verdict as recorded not being the verdict returned by the jury is null and void, and decree of reduction thereof should be granted as concluded for. 4. In the circumstances condescended upon a miscarriage of justice having arisen to the great hurt and prejudice of the pursuers, a new trial should be ordered, or the pursuers should have such other redress as may be competent.” The defenders pleaded, inter alia—“2. The pursuers' averments being irrelevant and insufficient in law to support the conclusions of the summons the action should be dismissed.”

The grounds of reduction sufficiently appear from the judgment of the Lord Ordinary ( Constable), who on 8th January 1924 sustained the second plea-in-law for the defenders and dismissed the action.

Opinion—“The pursuers are the widow and children of the late Robert Adair, who was employed by the defenders in their iron works at Glengarnock. On 22nd November 1920 Adair was in charge of a tractor engine at these works, which was conveying and delivering molten metal into a pit, when an explosion took place and Adair received injuries from which he died a few days later. The pursuers thereafter raised an action in the Sheriff Court against the defenders concluding for damages at common law or alternatively under the Employers' Liability Act. On 6th and 7th March 1922 the action was tried by the Sheriff and a jury under section 31 of the Sheriff Courts Act 1907. In accordance with the provisions of section 32 of the Act the Sheriff proponed special questions to the jury, to which they returned answers, and by interlocutor dated 16th March 1922 he applied the verdict as one in favour of the defenders. In accordance with rule 137 of the rules appended to the Act the agents of the parties dispensed with a record of the proceedings, in which case rule 147 provides that the verdict shall not be subject to review. The pursuers then appealed on various grounds to the Second Division of the Court of Session, but the appeal was dismissed as incompetent under rule 147 (1922 S.C. 672), and the pursuers have now raised the present action for reduction of the verdict and decree applying the same.

In support of their action the pursuers have stated a great many grounds, which may be roughly divided into two groups, viz., (1) failure of the Judge properly to ascertain and apply the verdict of the jury, and (2) breach of statutory rules and other informalities of procedure.

Before discussing these in detail it will be convenient to refer to various authorities which were quoted as to the grounds which will warrant reduction of the decree of an inferior court which is statutorily declared to be final. The pursuers found upon what Lord Lyndhurst termed the superintending authority exercised by the Court of Session over inferior jurisdictions where they have been guilty of an excess of their jurisdiction or have acted inconsistently with the authority with which they were invested— Campbell v. Brown, 3 W. & S. 448. Excess of jurisdiction is a clear case for the exercise of the jus eminens, though it may arise from the mistaken construction of a statute which the subordinate court must interpret in the first instance—‘A clause of finality cannot protect a sheriff's judgment when taking an erroneous view of a statute he either refuses to sanction a lawful act or sanctions an unlawful one— per Lord Justice-Clerk Moncreiff in Lord Advocate v.

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Police Commissioners of Perth, 8 Macph. 244. Similarly informality or irregularity in procedure may competently found an action of reduction if it involves either a breach of express statutory rules or a violation of those implied rules of procedure which are necessary for the due administration of justice. In the latter case I think there is good authority for the proposition that the irregularity must be such as to render the proceedings fundamentally null— Munro v. Rose, 18 D. 292. The defenders in the present case sought to apply the same criterion to the breach of statutory rules of procedure. But the authorities are somewhat difficult to harmonise. The general rule undoubtedly is that breach of an express or clearly implied statutory direction will be fatal— Maitland v. Douglas, 24 D. 193; Anderson v. Widnell, 7 Macph. 81; Stirling v. Hutcheon, 1 R. 935; United Collieries, Limited v. Gavin, 2 F. 60. But in the case of breach of statutory rules with regard to the lodging of reclaiming notes the Court has drawn a distinction between the actual lodging and boxing of the note and ancillary matters such as the lodging and delivering of prints— Allan's Trustees v. Allan, 19 R. 15; Henderson v. D. & W. Henderson, 1912 S.C. 171; and in other cases it has refused to grant the remedy of reduction for what may be termed minor statutory irregularities— Brown v. Lindsay, 7 Macph. 595; Tough's Trustee v. Edinburgh Parish Council, 1918 S.C. 107.

In order to appreciate the pursuer's case with regard to the ascertainment and application of the verdict it is necessary to consider their averments in the original action, the record in which was produced in the present action and referred to by both parties. The averments were that the accident which resulted in Adair's death was caused by molten metal coming in contact with dampness in the pit into which it was poured. The pit in question was the only pit at the works which was not under cover, with the result that rain water collected therein. Water also collected therein from the surface owing to faulty drainage and from a broken pipe in an adjoining laboratory. In consequence of this dampness the pit was defective, and the defenders, who made no sufficient inspection of it before allowing it to be used, were responsible for its defective condition. The pursuers also averred that Adair was instructed by David Graham, the foreman in charge, to convey the molten metal to the pit, that Adair was bound to obey Graham's instructions, and that Graham was negligent (1) in utilising the outside pit for molten metal, and (2) in not taking precautions to ascertain that the pit was free from water or dampness. The material pleas were (1) that the pursuers having suffered damage through the negligence of the defenders in utilising a defective pit or in failing to see that a safe and proper pit was provided, were entitled to reparation, and (2) separatim, that they were entitled to reparation under the statute because the deceased had died in consequence of injuries sustained through conforming to an order given by a servant of the defenders whom he was bound to obey. On these pleadings the action was appointed to be tried before a jury.

After evidence had been led before the jury and the Sheriff had summed up he prepared and submitted to the jury the following questions as recorded in the interlocutor sheet—‘ 1. Whether the personal injuries sustained by the deceased Robert Adair while employed as a tractor engineman 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 Gavid 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 verdict of the jury in answer to these questions, as recorded in the interlocutor sheet in terms of rule 145 appended to the Sheriff Courts Act, was as follows:—‘ 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.’

On the same day, 7th March, the Sheriff having heard parties’ agents on the motion of the pursuers’ agent to have the foregoing verdict applied made avizandum, and on 16th March he pronounced an interlocutor in the following terms:—‘Finds in law that in respect the answers returned by the jury to the questions proponed to them do not 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.…’

Apart from pure points of procedure which I shall discuss separately, the pursuers table three objections to the regularity of the verdict and the application thereof. In the first place they say that the verdict recorded was not the actual verdict of the jury, because the foreman stated that for the reasons stated in the verdict as recorded they answered the first question in the affirmative and assessed the damages at £800 on a common law basis. In my opinion this objection is bad for various reasons. I think that the verdict as recorded shows that they did answer

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the question in the affirmative because the verdict affirms the unsuitableness of the pit owing to dampness, and dampness was the one and only defect which was condescended on. Further, it is admitted that the jury agreed to the answer as framed by the Sheriff. But even if the verdict as recorded did not properly interpret the verdict as announced, that would not in my opinion found an action of reduction, because the Sheriff in interpreting it was not acting beyond his powers. It is well settled by the jury practice of the Court of Session that if a jury returns a verdict which the presiding judge considers ambiguous he may either send them back to consider it— Morgan v. Morris (20 D. (H.L.) 18)—or he may construe it, and if he thinks that the meaning is clear he may in entering it up alter its wording or effect accordingly— King v. N.B. Railway Company, 12 S.L.R. 53; Robinson v. Wm, Hamilton (Motors) Limited, 1923 S. C. 838. In the latter case parties are not without a remedy, because they may take an exception as was done in Robinson's case, but a party failing to take such an exception cannot have recourse to reduction. It appeared to me that the pursuers' objection to the terms in which the answers were recorded was really based on a failure to appreciate the distinction between a general and special verdict which I shall discuss later. They seemed to imagine that an affirmative answer to the first question, together with an assessment of damages, necessarily meant a finding in their favour, but in this, as I shall explain later, I think that they were mistaken.

The pursuers' next objection is that the application of the verdict failed to give proper effect to the verdict as recorded. In my opinion this objection is equally bad and for a similar reason. In applying the verdict the Sheriff was again acting within his powers. If the presiding judge makes a mistake in doing so, section 31 of the Sheriff Courts Act provides a remedy where the evidence has been recorded, but the pursuers here voluntarily debarred themselves from such a remedy. And they cannot have recourse to a reduction simply because a decision of the presiding judge acting within his powers was erroneous.

There is a third objection based upon the, insufficiency of the questions framed by the Sheriff which is distinctly averred in Cond. 5. Ex facie the questions appear to be defective because they do not ask for an assessment of damages. But the pursuers cannot found on this point, because it is part of their case that the Sheriff did make such a request and that the jury did assess damages. In argument the pursuers' complaint was that the Sheriff had not exhausted the possibility of liability under the statute because he had confined his questions to negligent superintendence or the giving of a negligent order by David Graham, and had not put the question whether the defective condition of the pit had not been remedied owing to the negligence of some other servant entrusted with the duty of seeing that the plant was in proper condition. Now in the note to his interlocutor applying the verdict the Sheriff explains that no such case was averred in the original record, and considering the original record I should be disposed to agree with him. But even if he were wrong that again would not be a good ground for reduction.

But there is another aspect of the third objection which strikes me as raising much the most serious question in the case, and while it was not developed in argument I feel bound as it is covered by the pleadings to deal with it. The argument may be stated thus—The record in the original action set forth a case based alternatively on common law liability or liability under the statute in respect of the defective condition of the pit in which the explosion took place, and that case was sent to trial. The trial of it necessarily involved the consideration of two things, viz. (1) whether the pit was defective, and (2) whether the defenders, or otherwise a servant for whose fault the statute makes them responsible, were to blame. Now the questions framed by the Sheriff as recorded put to the jury an issue as to the condition of the pit; they also put to the jury two issues as to whether there was culpa on the part of the foreman, but they did not put any issue as to whether there was culpa on the part of the defenders, and they only put one very general question of fact bearing upon the common law liability of the defenders. In these circumstances the question arises whether the omission of a direct issue of negligence, or that omission coupled with the absence of questions sufficiently detailed to elucidate the facts necessary to determine the defenders' liability, do not constitute an ex facie fundamental defect in the procedure.

The action is based on negligence, and under the well-settled form of general issue appropriate to the trial of such an action negligence on the part of the defenders must be affirmed or negatived by the jury, the damages being alternatively scheduled to meet the contingency of the jury affirming common law or merely statutory liability ( Magee v. Dalgliesh, Falconer, & Company, Limited, 11 R. 857; Goudie v. Paul & Sons, 22 R. 1). An early illustration will be found in Anderson v. Pyper, quoted in Macfarlane's Practice in Jury Cases, p. 324. A passenger who had been injured by the overturning of a public coach sued the owners for damages, and the approved form of issues was (1) whether the coach had been faulty in certain specified respects; and (2) whether these defects were due to the negligence of the defenders. Negligence no doubt involves or may involve questions of law as well as questions of fact, and questions of law are for the judge. But under this form of issue the judge can only give the necessary directions in law to the jury in his charge. The jury remain masters of the verdict, affirming or negativing the general issue of negligence as the case may be.

The present case is, however, rather different. Section 32 of the Sheriff Courts Act made it competent in any case, and imperative if either party required it, for

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the presiding judge to propone to the jury particular questions of fact, thus reviving a practice which existed generally when jury trial was first introduced in Scotland, but which was abandoned very shortly afterwards—Macfarlane, p. 68. The result is, I think, to convert the verdict of the jury into a special verdict—a form of procedure with which Scots lawyers are not familiar, though it is still competent and is occasionally resorted to in the Court of Session ( cf. Wilson v. Boyle, 17 R. 62). A special verdict as I understand it finds for neither party but simply makes special findings on the facts, leaving the Court to apply the law and enter up the verdict accordingly (Macfarlane, per Lord Benholme in Murray and Others v. Arbuthnott, 9 Macph. 198). This was the form of verdict prescribed by rule 144 of the Sheriff Courts Act 1907, though it was repealed when under the amending Act of 1913 it became no longer compulsory to take a special verdict in all cases. In a sense a special verdict enlarges the power of the presiding judge, because it enables him to apply the law directly instead of doing so by way of direction to the jury which they may disregard. On the other hand it does not extend his jurisdiction to any question of fact, and it requires that the facts to which the law is to be applied by the judge shall be fully and clearly determined by the jury.

Now in the present case the jury, as already pointed out, were not asked to make and did not make any finding with regard to the defenders’ negligence. In my opinion the omission was not in itself fatal, because the material facts necessary to determine common law liability might be ascertained by special questions. The point is whether the only question of fact put by the presiding judge was sufficient to enable the case to be fairly tried without a direct issue of negligence. The point is illustrated by the note to the Sheriff's interlocutor applying the verdict. The ground of his judgment as therein expressed is that the answer of the jury to the first question ‘does not establish any proposition which imputes legal liability to the defenders.’ In result the pursuers’ case was thus left to depend on the terms which an unskilled jury employed in answering a very general question. An answer to a general question may of course be conclusive, because it may indicate a defect which either plainly excludes or plainly implies common law liability. But it is more likely to be indeterminate, as it appears to have been in this case. The facts may of course warrant no more than an indeterminate finding, but the theory of a special verdict as I understand it is that the opinion of the jury shall be elicited on all points of the evidence material to the determination of liability, and the question is whether the answer in this case exhausted the jury's opinion upon the relevant facts of the case. Having regard to the averments in the original record with respect to the sources of dampness, the covering of pits, inspection, and so forth, I should have expected the evidence to have included other facts, and appropriate questions to have been put to the jury thereon, but I cannot say what the evidence was and the pursuers have made no averment on the subject. The grounds of an action like the present must be clearly established, and the doubts which I entertain as to the sufficiency of the questions put to the jury, while they illustrate the inherent risks of miscarriage which attach to the system of particular questions and special verdicts, appear to me to fall short of what would be sufficient to reduce the proceedings. …”

The pursuers appealed to the Second Division, and on 10th July their Lordships appointed the case to be heard before the Judges of the Second Division with the addition of three Judges of the First Division, the argument to be restricted to matters having reference only to the questions put by the Sheriff to the jury.

Argued for the pursuers and appellants—The proceedings in the appeal Adair v. David Colville & Sons, Limited, 1922 S.C. 672, 59 S.L.R. 482, did not affect the competency of the present action, because the pursuers founded on a fundamental nullity which affected the essential justice of the case, while in the appeal they founded and could only found on the statutory grounds of appeal. In any event reduction and not appeal was the proper way to raise a question of the present kind. The pursuers’ case was that they had never really had their case tried at all. They had come into Court alleging a certain ground of fault, but this had not been put to the jury in the questions framed by the Sheriff, and following on an inconclusive verdict the Sheriff had applied the answer as a verdict for the defenders. The Sheriff should have put a further question to the jury from which fault on the part of the defenders could have been inferred. The answer to the question put was uncertain, and where that was so the Court would not enter up the verdict but would order a new trial. If the Sheriff decided to propone questions of fact to a jury these questions must be complete, otherwise he would be unable to apply the law—Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), section 31 and rules 133 and 187; Taylor v. Sutherland, 1910 S.C. 644, per Lord President Dunedin at pp. 650 and 651, 47 S.L.R. 541. The Sheriff had failed in his duty in proponing the proper questions. The Court of Session had a supereminent power to reduce the decisions of inferior judges when they went wrong— Campbell v. Brown, 1829, 3 W. & S. 441, per Lyndhurst, L.C., at p. 448; Caledonian and Dumbartonshire Railway Junction v. Lockhart, 1854, 17 D. 25, per Lord President M'Neill at p. 32; Morgan v. Morris, 1853, 16 D. 82, 1855, 18 D. (H.L.) 46, 1856, 18 D. 797, 1858, 18 D. (H.L.) 18, reported more fully 3 Macq. 323; Florence v. Mann, 1890, 18 R. 247, 28 S.L.R. 215; Taylor v. Sutherland, cit. sup.; Campbell v. United Collieries Limited, 1912 S.C. 182, per Lord President Dunedin at p. 185, 49 S.L.R. 140; Macfarlane on Jury Practice, p. 252.

Argued for the defenders and respondents—The object of the questions put to the jury was to analyse the evidence led before

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them, and until the evidence was led the questions could not be put. The questions put by the Sheriff did this sufficiently, and the answers returned by the jury negatived the liability of the defenders. But even if the questions were not sufficient, the pursuers must show that they were so outrageously bad that they completely failed to analyse the material placed before the jury. Wherever a decision was contrary to law there would be in a sense a miscarriage of justice. The cases founded on by the reclaimers were cases where the Court, which had jurisdiction was exercising a competent power of review, but they were not cases where review, having been excluded by statute, the jury returned a wrong answer to questions put and reduction was given. The reclaimers could only succeed if they could show that something was withheld from the jury which ought to have been put to them, subject to the proviso that in this particular case no record of the proceedings had been kept. It was impossible to say whether a wrong question had been put unless the Court knew what it had been put upon— Whitton v. Ewing, Aitlcen v. Edgar, 1911 S.C. 781, 48 S.L.R. 672.

At advising—