Scottish Court of Session Decisions

In October 1895 John Mackie, calender worker, Dundee, raised an action against Strachan, Kinmond, & Company, calenderers, Dundee, for £200 damages in respect of the loss of his left arm, which was so severely injured in the defenders' works on 24th March 1894 that amputation was rendered necessary.

The defenders, besides pleading that the pursuer had set forth no relevant grounds of action, maintained that the action was excluded in respect of a receipt granted by the pursuer on 5th May 1894 for a payment of £10 made to him “ex gratia” and “without admitting liability” by the defenders' manager Mr Forbes. The receipt was in the following terms:—“Received from Messrs Strachan, Kinmond, & Company, East Port Calender, Dundee, the sum of £10 sterling, as compensation for

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personal injury received by me on March 24th 1894 while in their employment, and this sum I accept in full discharge of all claims I can or may make in respect of said injury, either under the Employers Liability Act 1880 or otherwise.” With regard to this receipt, which was produced in process, and which bore the pursuer's signature across a penny stamp, the pursuer averred—“(Cond. 9) Admitted that the pursuer received payment, through the defenders' manager Mr Forbes, of the sum of £10, and gave a receipt therefor. Denied that the defenders made said payment ex gratia or without admitting liability. The terms of said receipt admit or at least imply an admission of liability. Explained and averred that defenders' manager Mr Forbes called upon the pursuer within a week of his leaving the infirmary, and induced him, when he was in a weak state of body and mind, and without advice, to sign said receipt for £10, on the distinct assurance that he would not be left in want. The defenders have not implemented the conditions on which the said receipt was granted to them.”

The Sheriff-Substitute ( Campbell Smith) having sustained the defenders' plea to the relevancy, and dismissed the action, the Sheriff ( Comrie Thomson) adhered, expressing further the opinion that the action could not be maintained in the face of the receipt.

The pursuer appealed. At the hearing it was stated that on the occasion of the granting of the receipt, the pursuer had not consulted any agent, and that the interview was one between the parties themselves; further, that the pursuer was willing to repay the £10 if the Court permitted the action to proceed.

Argued for pursuer—The averments were sufficient to elide the receipt, and reduction was unnecessary. These averments were that the pursuer was, when he granted it, an old man weak in body and mind from recent suffering, and under the pressure of dealing with his employer, who had ascendency over him, and promised him that if he signed the receipt he would be kept out of all want. The parties were not on equal terms, and the transaction ought not to stand, especially where the pursuer offered restitution. The case of Woods v. North British Railway Co., July 2, 1891, 18 R. (H. of L.) 27, was not in point. In that case there was a proof as to the circumstances in which the receipt was given. Here the defenders asked judgment without inquiry.