 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Murray v. North British Railway Co. [1904] ScotLR 41_383 (08 March 1904) URL: http://www.bailii.org/scot/cases/ScotCS/1904/41SLR0383.html Cite as: [1904] ScotLR 41_383, [1904] SLR 41_383 |
||
[New search] [Printable PDF version] [Help]
Page: 383↓
[Sheriff Court, Edinburgh.
A lorryman in the employment of a firm of carting contractors was injured in consequence of his horse taking fright in the goods yard of a railway company where the horse and lorry were employed under a contract between the carting contractors and the railway company. The injured man received a payment in respect of his injuries from the carting contractors, and granted a receipt therefor in full satisfaction of all claims against them, “reserving all claims against any other parties;” and thereafter made a claim for compensation under the Workmen's Compensation Act against the railway company as undertakers. Held that in terms of section 6 of the Act the applicant was precluded from claiming against the undertakers, who were his “employers” in the sense of that section.
Section 6 of the Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37) enacts as follows:—“Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some other person other than the employer to pay damages in respect thereof, the workman may at his option proceed either at law against that person to recover damages or against his employer for compensation under this Act, but not against both; and if compensation be paid under this Act the employer shall be entitled to be indemnified by the said other person.”
In an arbitration under the Workmen's Compensation Act 1897 in the Sheriff Court at Edinburgh, William Hall Mitchell Murray, carter, 96 Duke Street, Leith, claimed compensation from the North British Railway Company as “undertakers” in respect of injuries sustained by him in the company's goods yard at South Leith.
On 31st December 1903 the Sheriff-Substitute ( Henderson) dismissed the application.
The following facts were stated as proved or admitted:—“1. That on 16th July 1903 the applicant Murray, who was in the employment of Messrs Cowan & Company, carting contractors, in the course of his employment as a carter was in charge of a lorry in the goods yard of the North British Railway Company at South Leith. 2. That while the loaded lorry was being drawn alongside some railway waggons to be unloaded the horse took fright, and began to rear and kick, and kicked Murray so severely that he sustained a compound fracture of both bones of his left leg below the knee… . 4. That the horse and lorry were at the time employed under contract between Cowan & Company and the North British Railway Company, and the latter were accordingly undertakers within the meaning of the 4th section of the Workmen's Compensation Act 1897… . 9. That on 3rd August Messrs Laing & Motherwell, W.S., who were agents for the poor, under instructions from Murray's wife, wrote to Messrs Cowan & Company calling on them to make some proposal as to what they were prepared to do in the way of compensation to Murray, and adding that failing a satisfactory promise an action would be raised in the Sheriff Court against them. 10. That after some correspondence and telephonic communications between Messrs Laing & Motherwell and Mr J. C. Chisholm, solicitor, on behalf of Cowan & Company, Mr Chisholm, by letter of 28th August, made an ex gratia offer of £5 and £2, 2s. of expenses. 11. That Messrs Laing & Motherwell on 1st September accepted this offer, and added—‘As you are offering these without admitting any legal liability, and as an ex gratia payment, we of course reserve all rights to compensation our client may have from other parties.’ 12. That thereafter the sum of £7, 2s. was paid to Murray, who granted the following receipt:—‘Edinburgh, 8th September 1903.—Received by me, William Murray, from Messrs Cowan & Company, per John C. Chisholm, solicitor, 44 Queen Street, Edinburgh, the sum of seven pounds two shillings in full satisfaction and liquidation of all claims (if any) competent to me against the said Messrs Cowan & Company under any Act of Parliament or at common law in respect of injuries, whether now or hereafter to become manifest, arising directly or indirectly from an accident which occurred to me on or about the 16th day of July 1903, and any loss or damage consequent thereon, reserving all claims against any other parties.’ 13. That this receipt had been revised by Messrs Laing & Motherwell on behalf of Murray, and acting as his agents.”
On the facts stated the Sheriff-Substitute held in law “that the applicant having claimed and received damages from his employers Cowan & Company was barred by the terms of the 6th section of the Workmen's Compensation Act from claiming compensation from the undertakers.”
The question of law was—“Whether the applicant was barred by the terms of the 6th section of the Workmen's Compensation Act 1897, or otherwise, from claiming compensation from the undertakers in respect of the payment from his employers Messrs Cowan & Company on 8th September 1903 in the circumstances above set forth.”
Argued for the appellant—Section 6 of the Act did not apply. The word “employer” in that section could not be read as meaning “undertaker;” the indemnity of the undertaker was otherwise provided
Page: 384↓
for—section 4 of the Act. Section 6 was intended to give the direct employer, who might be liable to indemnify the undertaker, a right of indemnity against a third party, if any, in whom the circumstances created a legal liability. The respondents were not called upon.
But the true scope and meaning of the preceding part of the section is that a workman who has been injured cannot recover damages both from the undertaker and from the person liable at common law.
Now, what was done in the present case was this. The workman made a claim for compensation against his own employers, Cowan & Company, who were not the undertakers, and they made a payment which was accepted by Murray. It is true that in the receipt which was granted for this payment Murray's agents endeavoured to reserve right to claim additional compensation from the undertakers the North British Railway Company, but looking to the terms of the sixth section of the statute, Murray by accepting compensation from Cowan & Company, had lost his right to claim against the North British Railway Company.
On these grounds I think the Sheriff-Substitute's judgment is right.
The Court answered the question of law in the affirmative.
Counsel for the Appellant— D. P. Fleming. Agents— Laing & Motherwell, W.S.
Counsel for the Respondents— Guthrie, K.C.— Grierson. Agent— James Watson, S.S.C.