Scottish Court of Session Decisions

On the 17th August 1904 Mrs Mary M'Cabe or Kelly, widow, residing at 82 Main Street, Bridgeton, Glasgow, presented a petition in the Sheriff Court at Glasgow in which she sought to recover from James Fraser

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& Company, builders, 6 Union Street, Glasgow, £500 damages at common law, or £180, 1s. under the Employers' Liability Act 1880, for the death of her son Henry Kelly.

She averred that her son was, on 13th May 1904, in the employment of the defenders, who were in the course of erecting a number of tenements, four storeys in height, in Mount Stuart Street, Cross-myloof, Glasgow; that in order to complete the gable of one of the tenements it had been necessary to put up a scaffolding for workmen by placing three trestles on the joists alongside the gable with planks on them; that when the gable had been finished the planks had been removed and the trestles had been left standing above the level of the walls, exposed to the wind and with no support; and that, no precaution having been taken by the defenders, one of the trestles was blown over and fell on to her son as he was leaving his work and caused injuries from which he died some hours after the accident.

On 17th November 1904 the Sheriff-Substitute ( Fyfe), as to the claim at common law, sustained defenders' plea to the relevancy, but as to the claim under the Employers' Liability Act, before answer allowed a proof.

On 14th January 1905 the Sheriff ( Guthrie) adhered to the interlocutor of the Sheriff-Substitute.

Note.—“The pursuer's agent withdrew the claim as laid at common law. There may be a question whether the case averred falls within the clause of the Act relating to the conditions of plant. I think, however, if there is really a doubt about this, that it will be better dealt with on ascertained facts.”

On 24th January the pursuer appealed to the First Division of the Court of Session for jury trial under section 40 of the Judicature Act (6 Geo. IV, cap. 120), and the case was sent to the Summar Roll. When it appeared in the roll the defenders objected to the competency.

The Judicature Act (6 Geo. IV, cap. 120), sec. 40, inter alia, enacts—“In all cases originating in the inferior courts in which, the claim is in amount above £40, as soon as an order or interlocutor has been pronounced in the inferior courts (unless it be an interlocutor allowing a proof to lie in retentis or granting diligence for the recovery and production of papers) it shall be competent to either of the parties who may conceive that the same ought to be tried by jury to remove the process into the Court of Session by bill of advocation, which shall be passed at once without discussion and without caution.”

The Court of Session Act 1868 (30 and 31 Vict. cap. 100) abolished the process of advocation and enacted that all causes originating in the inferior courts in which the claim was in amount above £40 might be removed to the Court of Session by note of appeal at the time and for the purpose and subject to the conditions specified in the 40th section of the Judicature Act.

The Employers' Liability Act 1880 (43 and 44 Vict. c. 42), sec. 6, enacts—“(1) Every action for recovery of compensation under this Act shall be brought in a County Court, but may upon the application of either plaintiff or defendant be removed into a superior court in like manner and upon the same conditions as an action commenced in a County Court may by law be removed. (3) … County Court shall with respect to Scotland mean the Sheriff's Court. In Scotland any action under this Act may be removed to the Court of Session at the instance of either party in the manner provided by and subject to the conditions prescribed by section 9 of the Sheriff Courts (Scotland) Act 1877.”

The Sheriff Courts (Scotland) Act 1877 (40 and 41 Vict. c. 50), sec. 9, enacts—“In regard to every action brought under the preceding section in the Sheriff Court the following provisions shall have effect, that is to say—(1) If a defender shall at any time before an interlocutor closing the record is pronounced in the action, or within six days after such interlocutor shall have been pronounced, lodge a note in the process in the following or similar terms:—… It shall be the duty of the sheriff-clerk forthwith to transmit the process,… and the process having been so transmitted shall thereafter proceed before the Court of Session as nearly as may be as if it had been raised in that Court. (2) The Court of Session, or either Division thereof, or any Lord Ordinary therein, may, if of opinion that the action might have been properly tiled in the Sheriff Court, allow the defender who removed the action to the Court of Session, in the event of his being successful therein, such expenses only as they may consider that he would have been entitled to if successful in the action in the Sheriff Court. (3) The provisions of any Act of Parliament excluding appeal to the Court of Session in respect of the value of a cause depending in the Sheriff Court shall not apply to actions brought therein under the preceding section.”

Argued for the defenders and respondents—The claim at common law having now been withdrawn the action was under the Employers' Liability Act only, and the competent mode of removal to the Court of Session of such an action was as provided by the Sheriff Courts Act 1877, section 9. The proceedings in this case were therefore incompetent. Of the two modes competent for the removal of cases from the Sheriff Court, that under the Sheriff Courts Act 1877 and that under the Judicature Act, the Employers' Liability Act had declared the former available for actions brought under its provisions. By this selection it had by implication excluded the other mode. This appeared to have been recognised at first, for all removals of actions under the Employers' Liability Act were under the Sheriff Courts Act till the case of Patons v. Niddrie and Benhar Coal Co., Limited, January 14, 1885, 12 R. 538, 22 S.L.R. 345. It was only since the date of that case that there was any practice to the contrary. But that case differed from this in that it was at common law as well

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as under the Act. Further, the authority of that case had been questioned by the Second Division— Kane v. Singer Manufacturing Co., May 21, 1904, 6 F. 658, 41 S.L.R. 571—and the point should be referred for decision to a larger Court. The decision was of moment in connection with the question of expenses. The Legislature had intended all actions under the Employers Liability Act to be Sheriff Court actions and inexpensive, and the object of providing for removals being under the Sheriff Courts Act was to get the benefit of the restrictions and the provisions as to expenses in that Act. It had now been decided that whenever in an action raised in the Sheriff Court and removed under the Judicature Act to the Court of Session £25 or any larger sum was recovered, the Court would not limit to the Sheriff Court scale the award of expenses— Casey v. Magistrates of Covan, May 24, 1902, 4 F. 811, 39 S.L.R. 635—( M'Avoy v. Young's Paraffin Co., Limited, November 5, 1881, 9 R. 100, 19 S.L.R. 61, 137, was also referred to).

Counsel for the pursuer and appellant were not called on.