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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Burns v. Allan & Sons [1892] ScotLR 30_57 (5 November 1892)
URL: http://www.bailii.org/scot/cases/ScotCS/1892/30SLR0057.html
Cite as: [1892] ScotLR 30_57, [1892] SLR 30_57

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SCOTTISH_SLR_Court_of_Session

Page: 57↓

Court of Session Inner House First Division.

Saturday, November 5. 1892.

30 SLR 57

Burns

v.

Allan & Sons.

Subject_1Reparation
Subject_2Personal Injury
Subject_3Master and Servant
Subject_4Jury Trial — Excess of Damage — Employers Liability Act 1880 (43 and 44 Vict. cap.42).
Facts:

In an action of damages by a workman against his employers under the Employers Liability Act, the jury awarded the pursuer a sum equal to three years' wages, being the full amount recoverable under the Act. The injuries which the pursuer had sustained were a broken thigh, a broken and disfigured nose, and displacement of the breast-bone. The medical evidence was to the effect that he would probably be able to resume his work in a year from the date of the accident.

Held that, in addition to the actual loss sustained, the jury were entitled to take into account the pain suffered and the chance of the medical opinion not being realised, and that there was no such excess in the award of the jury as to entitle the defenders to a rule on the ground of excess of damage.

Headnote:

Francis Burns brought an action of damages under the Employers Liability Act 1880 against J. & A. Allan & Sons for payment of three years' wages (£234) in respect of injuries sustained in their service.

The case was tried before the Lord President and a jury, and the result of the evidence was to show that the pursuer's injuries were very severe. His thigh was broken, his nose was broken in a way that caused considerable disfigurement, and his breast-bone was displaced. The only medical man examined (a witness for the pursuer) gave it as his opinion that the pursuer would probably be able to resume his ordinary work as a quay labourer in about a year from the date of the accident.

The jury found for the pursuer, and assessed the damage at the full amount claimed.

The defenders applied for a rule, on the ground of excess of damage, and argued—A sum equal to three years' wages was the maximum of damages recoverable under the Employers Liability Act, and that being so, it was evidently excessive for a jury to award such a sum where the injuries sustained only disabled the workman from pursuing his ordinary employment for a single year.

At advising—

 Judgment:

Lord President—I see no ground whatever for granting a rule. The pursuer's injuries were very serious. His breastbone was stoved in, his thigh smashed, and his nose broken so as to be altered almost beyond recognition. At the trial—six months after the accident—the pursuer went on crutches, and was a perfect wreck. The jury, I imagine, in estimating the

Page: 58↓

damages due, would first take the loss of wages which it was not disputed the pursuer had sustained. To that I think they were entitled to add something on account of the uncertainty of the doctor's opinion as to the date of his recovery being realised. They were also entitled to give him something additional for the suffering he had endured. On the whole, it appears to me that there is no excess in the award made, or at least that if there is any, it is of so microscopic a character as not to entitle us to interfere.

Lord Adam, Lord M'Laren, and Lord Kinnear concurred.

The Court refused a rule.

 Counsel:

Counsel for the Pursuer— Comrie Thomson— Orr. Agent— W. A. Hyslop, W.S.

Counsel for the Defenders— Jameson— Fleming. Agents— Drummond & Reid, W.S.

 1892

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URL: http://www.bailii.org/scot/cases/ScotCS/1892/30SLR0057.html