Scottish Court of Session Decisions

James Docherty, labourer in the employment of Robert M'Alpine & Sons, railway contractors, raised an action in the Sheriff Court at Glasgow, concluding for damages against his employers, both at common law and under The Employers Liability Act 1880. The defenders, besides lodging defences to the pursuer's condescendence, put in a separate statement of facts, in which they averred—“(Stat. 1) After the accident in question, communications were entered into between the pursuer and the defenders, with a view of settling any possible claim for damages that pursuer might allege to be due to him in respect of the injuries said to have been suffered by him by said accident. (Stat. 2) The pursuer asked for and agreed to accept the sum of £3 in full satisfaction of his claim. That sum was accordingly paid to him by the defenders, and accepted by him in full of all his claims, and on receipt thereof he granted the following discharge to the defenders.” …

Page: 88↓

The pursuer stated that when the discharge referred to was obtained from him he was blind and suffering great bodily pain, that he was weak and facile in mind and easily imposed on, all owing to the injuries he had received, and that the discharge was obtained from him by fraud and circumvention and concealment of material facts. The pursuer also tendered restitution of the sum paid.

The pursuer pleaded—“(1) The pursuer having sustained the injuries libelled through the negligence of the defenders, or of those for whom they are responsible, at common law or under the statute foresaid, are liable in compensation and damages to the pursuer. Additional pleas.—(1) The pursuer being weak and facile in mind and easily imposed on, or at least not being of sound and disposing mind at the date of the pretended settlement, and the said David Robertson having at the time concealed material facts from the pursuer, and, taking advantage of the pursuer's weakness and facility and the said concealment as aforesaid, having impetrated from the pursuer by fraud and circumvention the said settlement and the said pretended receipt, the same should be set aside in terms of the Sheriff Court (Scotland) Act 1877. (2) The pursuer being blind at the time the pretended receipt was granted, the same was not executed according to law, and the same should be set aside. (3) The said receipt having been obtained from the pursuer by fraud and circumvention on the part of the defenders or their law-agent, and the pursuer having offered to make restitutio ad integrum, the same should be set aside.”

The defenders pleaded—“(4) The pursuer having accepted a sum in full settlement of his claim, is debarred from insisting in the present action, and the action should therefore be dismissed, with expenses.

The Sheriff-Substitute ( Spens) pronounced the following interlocutor:—“Allows pursuer a proof of the averments contained in answers 1 and 2 of the answers to defenders' separate statement of facts, and to the defenders a conjunct probation, and sends the case to the diet roll of 12th July, pursuer on or before said diet to consign the sum of £3 admittedly paid to him.”

The pursuer appealed to the Sheriff ( Berry), who pronounced the following interlocutor:— “Recals the interlocutor appealed against: Allows a proof, subject to the condition that before the proof the pursuer shall consign the sum of £3 admittedly paid to him.”

Note.—“This case has been appealed on the ground that the whole case should be sent to proof. The Courts, as the decisions show, do not favour the proof in a case being split up. I do not think that there is sufficient ground in the present case for departing from the general rule on that point. The proof allowed is subject to the condition of the sum of £3 being consigned in Court.”

The defenders appealed to the Court of Session.

At the hearing no appearance was made for the pursuer. Counsel for the defenders was stopped in his argument.