Scottish Court of Session Decisions

This was an action at the instance of William Hunter, miner, in the employment of the Darngavil Coal Company, Limited, in which the pursuer concluded for damages due to him at common law on account of personal injuries sustained by him while working in the defenders' employment. The defenders, besides lodging defences to the pursuer's condescendence, put in a separate statement of facts, in which they averred as follows “(Stat. 1) Upon 15th February 1899 the pursuer sent to the defenders a notice, signed by him, in these terms ‘I hereby give notice that on the 31st day of January 1899 I was injured in the course of my employment in your West Longrigg Colliery through winding-rope slipping off drum, and that I claim compensation therefor under the Workmen's Compensation Act, 1897.’ (Stat. 2) Following upon said notice, the defenders adjusted with the pursuer the average wage which he was earning prior to the accident to be £1, 13s. per week, and that the compensation payable to him was therefore 16s. 6d. per week. The defenders have paid compensation to the pursuer at this rate during 33 weeks after the first fortnight, the amount so paid being £27, 4s. 6d. Receipts for said payments, signed principally by the pursuer, and in one or two instances by his wife, are herewith produced and referred to.”

The pursuer averred in answer that he had been induced to sign the notice in question by the defenders in ignorance of its character, and that he had been led by them to believe that it was merely a formal receipt which not would prejudice his rights against them. He admitted that he had

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received certain payments, but denied that the defenders had adjusted his average wage with him.

The defenders, in addition to pleas upon the merits of the action, pleaded—“(2) The pursuer having applied for and received compensation under the Workmen's Compensation Act, is barred from suing the present action.”

The pursuer pleaded—“(3) The defenders are barred from founding upon the payments made to the pursuer in respect that the said payments were made in bad faith, without any notice to the pursuer that they were under the Workmen's Compensation Act, and on the representation that they would not prejudice the pursuer's claims. (4) The pursuer having signed the alleged claim under the Workmen's Compensation Act under essential error induced by the misrepresentations of the defenders, as condescended on, he is not barred from claiming reparation at common law.”

The defenders produced the receipts founded on, which showed the sums paid weekly to the pursuer, signed by him or his wife. The receipts were written upon sheets headed as follows:—

“ Receipt for Weekly Payments.

Name of Member—Darngavil Coal Company, Limited.

Date of Accident—31st January 1899.

Date from which Compensation begins—15th February 1899.

Amount of Payment authorised—16s. 6d. weekly.”

Below the heading there were columns containing the amount paid on each occasion, the week in respect of which it was paid, the date of payment, and the signature of the claimant or near relative, and of a witness.

By interlocutor dated 13th July 1900 the Lord Ordinary ( Kincairney) appointed the pursuer to lodge issues for the trial of the cause, and appointed the defenders to lodge issues for the trial of their defence embodied in their second plea-in-law.

“ Opinion—In this action of damages by a workman for injury through the fault of the defenders, they have pleaded, ‘The pursuer having applied for and received compensation under the Workmen's Compensation Act, is barred from suing the present action.’ The defenders' averments in support of this plea seem to me to be relevant, and such as cannot be disregarded without inquiry. Neither can they, in my opinion, be accepted without inquiry, and I think the pursuer's explanations in answer to the defenders' averments are also relevant. There must therefore be proof as to this plea of bar. The question is how the inquiry is to be made. There are two ways of making it. Either the defenders must be allowed a proof of their averments, and the trial of the pursuer's action must be postponed until a judgment is pronounced on that proof; or else issues must be adjusted for the trial both of the main case and of the defence of bar. There are inconveniences attending either course, and it is not easy to say on which side they predominate. In these circumstances, I think the safest course is to follow the precedent of Campbell v. Caledonian Railway Company, 6th June 1899, 1 F. 887, where the latter course was adopted by the First Division. I do not regard that case as a decision which I am bound to accept, but as an example which I am safe to follow.”

The defenders reclaimed, and argued—The pursuer was barred from insisting in this action by electing to take compensation under the Act. Where there was an averment that the pursuer had discharged his claim the proper course was to remit it to proof primo loco. If that averment were proved there would be no need for an inquiry into the merits— Docherty v. M'Alpine & Sons, Nov. 21, 1899, 2 F. 128; Little v. P. & W. M Lellan, Limited, Jan. 16, 1900, 2 F. 387. In Campbell v. Caledonian Railway Company, June 6, 1899, 1 F. 887, there was no plea in bar as there was in the present case. In any view the pursuer must refund the sums paid to him if the action was to be allowed to proceed on the merits.

Argued for the pursuer—The Court would not readily interfere with the discretion exercised by the Lord Ordinary as to the mode of proof. But the Lord Ordinary was right in following the precedent of the case of Campbell, supra, which was indistinguishable from the present. The defenders' averments were not relevant to support the plea of bar. It was not said that the pursuer had discharged his claim under the Act. The notice of 15th February 1899 was not a claim in the sense of the statute, in respect it did not demand a specific sum— Bennett v. Wordie & Company, May 16, 1899, 1 F. 855. The defenders did not aver that the payments made to the pursuer were made under the Act, and the receipts bore no reference to it. Further, there was no admission of liability under the Act by the defenders, and payment without such admission would not bar them from pleading that the pursuer's claim came too late— Rendall v. Hill's Dry Docks Company, Limited [1900], 2 Q.B. 245. The pursuer was therefore entitled to go to trial on the whole case.