Scottish Court of Session Decisions

The Public Authorities Protection Act 1893 (56 and 57 Vict. c. 61), sec. 1, enacts—“Where after the commencement of this Act any action, prosecution, or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance or execution or intended execution of any Act of Parliament or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, duty, or authority, the following provisions shall have effect:—( a) The action, prosecution, or proceeding shall not lie or he instituted unless it is commenced within six months next after the act, neglect, or default complained of, or in case of a continuance of injury or damage within six months next after the ceasing thereof.”

On 27th November 1903 William Brown Wilson, tramway inspector, brought this action against the 1st Edinburgh City Royal Garrison Artillery Volunteers, having their office and headquarters at 28 York Place, Edinburgh, and James Francis Mackay, Lieutenant-Colonel of that regiment, as officer commanding the regiment, for himself and as representing the said regiment, concluding for £500 in name of damages.

The pursuer averred that the 1st Edinburgh City Royal Garrison Artillery Volunteers was a volunteer regiment, and that the defender Mackay was the commanding officer of that corps, and as such represented it. He was also, in terms of the Volunteer Regulations and section 25 of the Volunteer Act of 1863 (26 and 27 Vict. cap. 45), vested in its whole property. On 14th March 1903 an ammunition waggon belonging to the defenders, and drawn by two horses hired by them, came along the street at a furious pace and entirely uncontrolled, with the result that the pursuer's daughter Marjory, six years of age, was, while standing on an island platform opposite the Lothian Road Board School, knocked down and so seriously injured that she died shortly afterwards. The parade of the regiment on that day was not a parade for military purposes, but a “march-out,” i.e., a parade of the guns, &c., on the public streets merely for the purpose of attracting public attention and securing recruits.

The pursuer further averred (Cond. 3) that Colonel Mackay gave orders to his subordinates for the parade of certain guns and waggons on the public streets of Edinburgh on that date. “(Cond. 4) It was the duty of said defender to take special precautions for the public safety. In particular, it was said defender's duty to see (1) that quiet horses suitable for such work should be used; (2) that experienced and competent drivers able to control the horses drawing the guns and ammunition waggons were employed; and (3) that the arrangements for harnessing the horses to the guns and waggons and parading them on the streets should be superintended by a commissioned officer of experience familiar with such work. But these duties the said defender disregarded, as, having issued his orders for the ‘march-out,’ which his subordinates were bound to carry out, he left the entire control to the non-commissioned officers and men of the volunteer regiment. (Cond. 5) The horses which the said defender instructed to be used were wholly unaccustomed to such work, and had never been previously engaged in it. The said defender took no steps to ascertain the suitability of the horses or their fitness to be harnessed with the special harness necessary for drawing the guns and ammunition waggons. (Cond. 6) The horses were young and restive and unused to the said waggons

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and harness employed. Had the defender himself been present, or had he instructed any responsible commissioned officer to attend, he would have seen that it was both improper and dangerous to have permitted the said horses to enter the public streets. But the sergeant to whom the defender entrusted the whole control appointed two inexperienced gunners to drive the said horses. The said gunners were not competent drivers, and had no experience in horses.… Since the closing of the record the pursuer has ascertained, and it is the fact, that the ammunition waggons so used were those of the 12-pounder gun, and the said gunners were instructed by the defender Colonel Mackay, or those acting with his authority, to lead the horses through the streets in the manner appropriate to the much heavier waggons of the 4˙7 gun. This was contrary to the military regulations, which require 12 pounder ammunition waggons to be driven by drivers seated on horseback, and was dangerous, as a driver leading the horses drawing such a waggon in the manner described has not sufficient control of his horses to enable them to be driven through the streets with due regard to the safety of the public. (Cond. 7) The said accident was thus caused through the fault of the defenders in permitting said ammunition waggons to be drawn through the public streets by young and restive horses unused to such work and in unaccustomed harness, and driven by incompetent drivers. The accident was further caused by the fault of the defender Colonel Mackay in failing to appoint a commissioned officer of experience, delegated with authority to countermand the order which had been given to parade the said ammunition waggons if the horses proved unsuitable and restive. The defenders have been called on to make reparation to the pursuer for the loss, injury, and damage which he has sustained through the death of his daughter, but as they refuse or delay to do so this action has become necessary. The sum sued for in name of damages and solatium is reasonable.”

The defenders referred to the Volunteer Regulations and the Volunteer Act 1863, under which Act the members of the regiment were constituted a volunteer corps. The corps was bound to conform to the regulations issued by the Secretary of State for War, and the members thereof, to attain efficiency, required to attend the drills and instruction declared requisite under section 11 of said Act of 1863. By section 25 of said Act of 1863 the money, effects, and property of a volunteer corps were vested in the commanding officer for the time being and his successors in office. They were so vested by statute as truly belonging to the Crown. The commanding officer and the whole members of the corps were servants of the Crown in their respective official capacities. Upon the 14th March 1903, when the accident occurred, a parade of the corps had been ordered to take place, and the members of the corps who attended did so in their capacity of volunteers, and in the performance of their duties as such. The parade was an ordinary parade, in conformity with military regulations. The averments of the pursuer imputing fault to the defenders were denied, and in particular it was averred that the waggons were 16-pounder waggons, that the horses were led through the streets in accordance with instructions issued by the defender Colonel Mackay, conform to an order issued by the War Office, and that the said defender did not disregard or neglect any duty which it was incumbent upon him to perform.

The pursuer pleaded, inter alia—“(1) The pursuer's daughter having been killed through the fault of the defenders they are liable in reparation.”

The defender pleaded, inter alia—“(1) The action is excluded by the Act 56 and 57 Vict. cap. 61, sec. 1, and the defenders are entitled to expenses as between agent and client. (2) The action is incompetent—(a) As laid against the said corps and the said James Francis Mackay, as commanding officer, for himself and as representing the said corps; ( b) because an action for damages does not lie against the defenders or all or any of them, as servants of the Crown, in the execution of their duties as such. (3) The pursuer's averments are irrelevant. (6) The defender Colonel Mackay, not being in any way responsible for the accident, is entitled to be assoilzied.”

On 2nd November 1904 the Lord Ordinary ( Kyllachy) pronounced this interlocutor—“Finds that the action as laid against the defenders the 1st Edinburgh City Royal Garrison Artillery Volunteers, and James Francis Mackay, as Lieutenant-Colonel of said regiment and officer commanding and representing the same, cannot be sustained; therefore dismisses the same, and decerns: Quoad ultra finds that the claim for damages may be pursued against the said James Francis Mackay as an individual; before answer allows to the parties a proof of their averments, and to the pursuer a conjunct probation, reserving expressly in the circumstances the applicability of the Statute 56 and 57 Vict. cap. 61; reserving hoc statu all questions of expenses.”

Opinion.—“In this case I have come to the conclusion that the action cannot be sustained as against Colonel Mackay as representing the volunteer regiment and as holder and administrator of its funds. These funds belong to the Government—that is to say, the Crown—and it is, I think, an accepted doctrine that the Crown cannot be liable or sued for damages in respect of the ‘Torts’—the wrongful act of its officers. I therefore propose to dismiss the action so far as directed against Colonel Mackay as representing the regiment.

“On the other hand, I have come to the conclusion—(1) That the action is sufficiently well laid as against Colonel Mackay as an individual; and (2) that although he is sued in both capacities, the failure of the action as against him in the one capacity—or, if it is preferred to put it, the failure of the action as against the regiment, or as against

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the Crown—does not prevent the conclusion for damages—a conclusion which relates to a single wrong—being pursued as against Colonel Mackay individually.

“I also consider, having regard to the pursuer's averments, particularly his averment in the last paragraph of condescendence 1, and the additional statement now introduced at the close of condescendence 6, that I cannot de piano hold the action excluded by the statute of 56 and 57 Vict. (Public Authorities Act) founded on by the defender's. I think it is necessary that before dealing with that question the exact facts should be ascertained. Accordingly, not being prepared to hold either that the action is excluded by the statute or that its averments as against Colonel Mackay as an individual are plainly irrelevant, I propose to allow a proof before answer, reserving expressly the question as to the applicability of the statute, and also reserving the question of expenses.”

The defenders reclaimed, and argued—The action was incompetent, in respect that it concluded for damages against an accumulation of defenders against whom different grounds of action were alleged— Sinclair v. Caithness Flagstone Co., Limited, March 4, 1898, 25 R. 703, 35 S.L.R. 541; Barr v. Neilson's Trs., March 20, 1868, 6 Macph. 651; Milne v. Smith, November 23, 1892, 20 R. 95, 30 S.L.R. 105. The action had been dismissed by the Lord Ordinary as against one set of defenders, and allowed to proceed against another, thereby changing the liability of the defender who remained in the action from a pro rata liability to a liability in solidum (2) The action was excluded by the Public Authorities Protection Act 1893, sec. 1, the defenders being at the time of the accident persons acting in the intended execution of a public duty, and the action not having been commenced within six months after the act complained— Christie v. Glasgow Corporation, May 31, 1879, 36 S.L.R. 694; Spittal v. Glasgow Corporation, June 17, 1904, 41 S.L.R. 629; Conolly v. Managers of Stranraer Reformatory, February 4, 1904, 115. L.T. 638; Cree v. St Pancras Vestry [1899], 1 Q.B. 693; Mackay v. Tolworth Hospital Board [1900], 2 Q.B. 454. The defenders were protected as being servants of the Crown engaged in the execution of their duties—Militia Act (52 Geo. III, c. 38.)

Argued for the pursuer and respondent—The principle of Barr v. Neilson's Trs., sup., and the other cases referred to by the reclaimers had no application here. In these cases the claim of damages was founded on separate delicts which had no connection with one another, whereas in the present case there was only one delict. (2) It was alleged here that the defenders were at the time acting contrary to their duty, and in that position they were outside the protection of the Public Authorities Protection Act 1893— M'Ternan v. Bennett, Dec.21, 1898, 1 F. 333, 36 S.L.R. 239; Sharpington v. Fulham Board of Guardians, July 6, 1904, 20 T.L.R. 643; Marks v. Frogley [1898], 1 Q.B. 888; Bell v. Black & Morrison, June 28, 1865, 3 Macph. 1026. (3) The provisions of the Militia] Act had no bearing on whether there was a relevant action against Mackay as an individual, and the Lord Ordinary was right in holding that the action was well laid against him individually, even though it failed against him as colonel of a volunteer regiment.