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unnecessary in so far as it craves authority to BILL
complete title.

Counsel for Petitioner, Ingram;
Petitioner, Ingram;
J. K. & W. P. Lindsay, W.S.

BILL CHAMBER.

(Lord Murray.)

19th December 1923.

CHAMBER.

Ferrier

Agents, (Ferrier's

J. A. L.

Macpherson (Melville's Curator
Bonis)-Petitioner.

factor-Curator bonis to incapax--Petition by

curator bonis for authority to complete a title to
heritage by special service in the person of his ward—
Petition refused as unnecessary.

not require this authority to enable them to make up titles. They have power to do so, and must act on their own responsibility. I do not say what might be done in a case of great necessity, but the present application cannot be entertained." There are a number of cases in the books in which authority to complete title (usually coupled with a crave for special powers of sale) has been granted in favour of factors loco tutoris. But these afford, as the Lord Justice-Clerk points out, no authority for the present petition; and further, in some of these cases the power craved was for power to complete title in the name of the factor. Reference may be made, inter alia, to 30. Baird (1741, M. 16346), Kirkland (10 D. 1232), Crighton (19 D. 429). Indeed, even in the case of judicial factors, the Court appeared at one Judicial time to have taken a strict view, and to have granted such authority only in cases of urgency. (See Boyd, 17 D. 1115; Wilson, 2 Stuart 559.) It is true that in the case of Waddell (13 D. 739) such authority was granted in favour of a tutorat-law, but this crave was coupled with a crave for other powers, which, however, the Court refused, and the circumstances may have been special. I was also referred to the case of Forbes (1922, S.L.T. 294), where also a similar power was granted by the Court. In that case the crave was coupled with a crave for a power of sale which the Court declined to grant as unnecessary. I was also referred to the dictum of Lord Curriehill in the case of Maconochie (19 D. 366 at p. 372), but it appears to me to be clear that Lord Curriehill is, at the passage referred to, speaking of the guardian of an incapax, as, for example, a curator bonis or other judicial officer. Notwithstanding these isolated cases there is, in my opinion, no doubt that at common law tutors and administratorsat-law have full power to complete title to heritage in the name of their wards without recourse to the authority of the Court. And the need for such recourse is all the less necessary seeing that tutors are now clothed with the full powers conferred upon trustees by the Trusts Acts.

As the Lord Justice-Clerk said in the case of Graham, there may be exceptional cases in which the tutor may be entitled to come to the Court for special power to complete title, but such cases must be rare, at least since the law has limited the liability of heirs taking up succession to the value of the estate. The circumstances disclosed in the present case present, in my opinion, no exceptional features so as to call for the special intervention of the Court. For aught that appears, the ward's estate might be realised if an ordinary test of the market were made.

I shall accordingly dismiss the petition as

John Lumsden Macpherson, curator bonis to William Melville, having obtained by a note to the Lord Ordinary on the Bills on 2nd August 1923 authority to collate the heritable with the moveable estate of Thomas Melville, junior, brother of William Melville, who was the heir-at-law of Thomas Melville, on 10th November 1923 presented a Note to the Lord Ordinary on the Bills craving the Court to grant special power to complete a title by special service in the person of the ward, William Melville, to certain parts of the heritage with a view to conveying those parts to the persons entitled thereto.

The Lord Ordinary on the Bills, Lord Murray, refused the petition.

Lord Murray.--In this note the petitioner, who is the curator bonis to an incapax, craves special power from the Court to complete a title by special service in the person of the ward to certain heritage. The petitioner, under a previous note, received special power to enable him to collate the heritage to which his ward had succeeded, and the present note is designed as a step towards carrying out the transaction by completing the ward's title, and thereafter conveying a share of the heritable estate to those entitled thereto.

I may refer to a note appended to my interlocutor of even date in petition Ferrier (supra, p. 118), which relates to authority to complete title by special service in the person of the tutor. The position in the present case is no doubt different; for while the Court in general have declined to authorise a tutor to complete title, there are a number of cases in the books in which such authority has been given by the Court to factors, curators, and others judicially appointed to administer the estates of wards,

Tutrix-atLaw)Petr.

December 19, 1923.

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I am of opinion that the authority of the Court is not required by the petitioner in order to complete his title. As I pointed out in Ferrier's case, there is no doubt but that in its former practice the Court was in use to grant to its own judicial officers authority to complete title, but in these cases the power craved was in general merely ancillary to a special power to sell or otherwise deal with the ward's heritage, or was for completion of title in the name of the factor or curator. And it will be observed that judicial factors or other judicial administrators are now clothed with the full powers of trustees under the Trusts Act of 1921.

I entertain no doubt that exceptional cases may arise in which it may be expedient and proper for a factor or curator to apply to the Court for such authority, and I express no view adverse to the competency of this course in such cases. The present note, however, presents no exceptional features, and as, in my opinion, a factor or curator is, in normal cases, impliedly vested by statute with power to complete title at his own hand, I shall dismiss the note as unnecessary in so far as it craves the authority of the Court to complete title by special service.

Counsel for Petitioner, D. Jamieson; Agents, Dove, Lockhart & Smart, S.S.C.

A. H. D. G.

FIRST DIVISION.

(The Lord President, Lords Skerrington, Cullen, and Sands.)

21st December 1923.

31. King v. The Edinburgh Collieries Company Limited.

Workmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), section 1 (2) (b)—Option to injured workman either to claim compensation under, or take proceedings independently of, the Act Exclusion of remedy not chosen-Workman giving notice to employers of an injury and thereafter by letter from his solicitors claiming "compensation as for total incapacity at the rate of 35s. per week" -Employers repudiating liability and applying for

arbitration under the Act-Workman thereafter suing employers at common law and alternatively under the Employers' Liability Act, 1880-Averment by the defenders that they had applied for arbitration under the Workmen's Compensation Act, and that the arbitration was still pending Plea by the defenders that the action was barred in terms of section 1 (2) (b) of the Act by the pursuer having claimed compensation under the Act-Plea repelled in Sheriff Court- Held on appeal (dissenting Lord Skerrington) that it was premature to repel that plea, and that the pursuer should have a reasonable opportunity to exercise his option under section 1 (2) (b) of the Act.

Stated Case under the Workmen's Compensation Act, 1906.

Thomas King, miner, Musselburgh, brought an action in the Sheriff Court at Edinburgh against the Edinburgh Collieries Co. Ltd., Musselburgh, craving decree for damages at common law, or alternatively under the Employers' Liability Act, 1880, against the defenders in respect of injury alleged to have been sustained by him on 15th May 1922, through the fault and negligence of the defenders, his employers.

The defenders, inter alia, pleaded that the action was barred by section 1 (2) (b) of the Workmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), as more fully stated infra.

On 10th July 1923 the Sheriff-Substitute (Orr), inter alia, repelled that plea and allowed a proof. The defenders appealed by way of stated case to the Court of Session. The case set forth, inter alia :

The averments of the parties which raise the questions of law to be determined in this appeal are as follows:

In Article 11 of his condescendence the pursuer and respondent avers that the injury to him was at once reported to the defenders and appellants, who within a week of the occurrence reported the matter to their agents: that the agents of the defenders and appellants immediately caused enquiries to be made regarding the injury: that the pursuer and respondent furnished the defenders and appellants with additional particulars required by them and their agents: that on 14th June 1922 written notice of the injury was duly sent to the defenders and appellants: that the defenders and appellants repudiated liability for compensation under the Workmen's Compensation Act, 1906, and that the pursuer and respondent made no binding election to accept such compensation if entitled thereto, and quoad ultra he denies the statements in answer for the defenders and appellants.

In their answer to said Article 11 of the condescendence the defenders and appellants aver that the pursuer and respondent was medically examined on their behalf at Glasgow on 26th June 1922. They produce a letter dated 14th June 1922 from the agents for the pursuer and respondent to the manager of the insurance company representing the defenders and appellants, and refer to it for its terms. The said letter is in the following terms: Chambers,

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19 Alva Street, Edinburgh, 14th June 1922. Dear Sir, Thomas King v. Edinburgh Collieries Co. Ltd. We have been consulted by Thomas King, 75 Newbigging, Musselburgh, with regard to his claim for compensation in respect of an accident at Carberry Colliery on 15th May 1922. We understand that you have received full particulars regarding the accident, so that it is unnecessary that we should go into many details in the course of this letter. the above date, King, while employed with the above company, was incapacitated owing to gas poisoning, and he has since been unfit for work owing to the accident in question. He claims compensation as for total incapacity since the date of the accident. We shall be glad, therefore, to receive in course a remittance for the compensation due at the rate of 358. per week. As there has been considerable delay in settling this claim, we have been instructed to take action at once failing an immediate settlement.Yours faithfully (Sgd.) G. M. Wood & Robertson.The Manager, The Scottish Mine Owners' Defence and Mutual Insurance Assn. Ltd., 135 Buchanan Street, Glasgow." Quoad ultra the defenders and appellants deny the averments of the pursuer and respondent above referred to, and aver that the pursuer and respondent definitely elected to claim compensation from the defenders and appellants under the Workmen's Compensation Act, 1906, and in point of fact made said claim against them in said letter of 14th June 1922, his agents intimating that pursuer and respondent "claims compensation as for total incapacity since the date of the accident," and adding, “We shall be glad, therefore, to receive in course a remittance for the compensation due at the rate of 358. per week." They further explain and aver that a question having arisen as to the liability of the defenders and appellants to pay compensation under said Act (the pursuer and respondent insisting on 22nd July 1922 upon payment of "the compensation due to date," and the defenders and appellants repudiating liability), they applied for arbitration in Edinburgh Sheriff Court, which arbitration is still pending.

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Sheriff-Substitute Orr, K.C.-This is an action of the Employers' Liability Act. The action is founded damages at common law, and alternatively under of failure in their statutory duty to provide adequate on averments of fault against defenders in respect ventilation in the mine where pursuer worked. It section of the mine duly inspected by competent is also said defenders failed in their duty to have the persons, as provided for by the Coal Mines Act, 1911. defenders entrusted with the duty of superintendence Alternatively it is averred that certain servants of caused or materially contributed to the injuries sustained by pursuer by their fault or negligence.

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(2) (b) of the Workmen's Compensation Act, 1906. There is a preliminary defence founded on section It is said the pursuer has exercised the option given him in that section by making a claim for compensation under the Workmen's Compensation Act, and that he is thereby barred from insisting in the present action. The claim is contained in a letter dated 14th June 1922, in which pursuer's agents wrote:

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since the date of the accident. We shall be glad,
He claims compensation as for total incapacity
therefore, to receive in course a remittance for the
compensation due at the rate of 35s. per week."
The accident happened on 15th May 1922. The
defenders repudiated liability. On 27th July they
wrote to that effect and stated that they were apply-
ing for arbitration. On 28th July pursuer's agents
thought it right to state that their client did not
replied that to prevent any misapprehension they

restrict his claim to one under the Workmen's

Compensation Act, 1906; that he had a claim at
Liability Act, 1880, and they ask defenders to
common law, or alternatively under the Employers'
hold that letter as intimation of a claim on both
grounds.

The first plea in law stated for the defenders and appellants is in the following terms: Pursuer having prior to service of the petition claimed compensation from defenders under the Workmen's Compensation Act, 1906, in respect of said injury, which claim is presently the subject of arbitration proceedings in the Edinburgh Sheriff Court, the present action is barred by the terms of section 1, subsection (2) (b), of said Act and should be dis-intimation of claim in the letter of 14th June is a The question that arises is therefore whether the missed, with expenses." to bar the present action. good and effectual exercise of pursuer's option so as

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The record in the action was closed on 2nd February 1923, and parties were subsequently heard in the Debate Roll. In the course of the hearing it was admitted that the said application for arbitration was presented on 27th July 1922, that answers thereto for the present pursuer and respondent were lodged on 13th October 1922, and that since that date no further step in said arbitration proceedings had been taken by either party. It was also admitted that the initial writ in the present action was pre

sented on 14th November 1922.

I take it as intimation of a claim under the Workis not mentioned by name, but I am of opinion men's Compensation Act, 1906, although that Act that it does not bar the pursuer from adopting the course he is now taking.

The authority relied on by defenders is Burton v.

Chapel Coal Co. Ltd. (1909 S.Č. 430), in which previous and explained. I accept as correctly stating the cases both in Scotland and England were discussed meaning of section 1 (2) (b) the words of Lord Low: The workman is expressly put to his option between The Questions of Law for the opinion of the two courses, and the essence of an option between Court were: two courses is that whichever is adopted the other

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1ST DIV. is altogether rejected." His Lordship puts it otherwise: The workman must elect either to claim

Edinburgh
Collieries

1928.

66

King v. compensation under the Act or to sue for damages independently of the Act, and cannot adopt both Co. Ltd. Courses either concurrently or consecutively." When has a workman exercised his option? In Burton's December 21, case he was held to have done that, and therefore that he was not entitled thereafter to bring an action of damages. But what he had done was first to intimate a claim under the Act, he then brought an arbitration and followed out the arbitration to a final decision, when the arbiter refused him compensation on the ground that the accident was caused by his own serious and wilful misconduct. It was held by all the learned judges that that amounted to an exercise of his option. Lord M‘Laren says: "In the present case the claim under the Compensation Act was tried and decided against the claimant on its merits, and he is now attempting to follow out, by action at law, the alternative claim which is founded on the alleged fault of the employer. This proceeding, as I think, is contrary to the letter and the spirit of the statutory provision against double liability." The Lord Justice-Clerk and Lord Kinnear adopt as expressing the true meaning of the statute the language of the Master of the Rolls in Cribb v. Kynoch ([1908] 2 K.B. 551): “I think the true meaning of the Act is that a workman cannot proceed to trial under the Act and fail, and then proceed by common law action, and also cannot proceed by common law action, and having failed in that action, then proceed under the Act.'

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The second preliminary plea was not insisted in.
I shall repel the two preliminary pleas.

The Workmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), enacts:

Section 1. (1) If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the First Schedule to this Act. (2) Provided that

(b) When the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the workman may, at his option, either claim compensation under this Act or take proceedings independently of this Act; but the employer shall not be liable to pay compensation for injury to a workman by accident arising out of and in the course of the employment both independently of and also under this Act, and shall not be liable to any proceedings independently of this Act, except in case of such personal negligence or wilful act as aforesaid:

The case was heard before the First Division on 13th December 1923.

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The case of Burton therefore is not authority against the present pursuer, who went no further than intimating a claim. Lord Low expressly reserves his opinion on a case like the present. “What, however, would be the result if a workman who had a title to claim compensation under the Act made Argued for the Defenders : The words such a claim but withdrew it before final judgment, claim compensation" ought to be construed is a question upon which I would desire to reserve as including the notice of accident; and in any my opinion." So also Lord Pearson. Intimating a event the letter of 14th June 1922 from the claim may not necessarily be the same thing as making, workman's agents was clearly a claim of in Lord Pearson's language, a final election," or, as Lord Kinnear puts it, "finally and conclusively compensation under the Workmen's Compensaexercising his option in one way." In M'Donald v. tion Act, 1906 (Powell v. Main Colliery Co., James Dunlop & Co. (1900) Ltd. (7 F. 533) Lord [1900] A.C. 366, per Earl of Halsbury L.C. M'Laren said: But then, while an election exists at p. 370). If it turned out that the workin that case, it does not follow that it is an irrevoc- man had never had a claim under the Act, able election, and in the absence of any provision to and if that was held in proceedings under that effect, and keeping in view the explanatory the Act, he could not perhaps be held to proviso that the employer shall not be liable to pay have exercised his statutory option. But in under both claims, I come to the conclusion that a the present case there was actually an arbitraworkman may, if he pleases, abandon the claim first

66

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made, and fall back on the alternative claim." That

case arose under the Compensation Act of 1897,
which contained a similar provision to that of the
present Act. I find no case where the mere writing
of a letter such as the letter of 14th June was held
to be a "final" and irrevocable election by a
workman of the one course open to him to the ex-

66

66

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clusion of the other. That is all the workman did
here. His claim was at once repudiated, and I

cannot think that defenders have succeeded in shut-
ting him off from his alternative by intimating in the
same letter in which they repudiated the claim that
they were applying for arbitration. Pursuer's alter-
native intimation of a claim independently of the
Act was given without delay.

tion pending to decide that very question, and the mere fact that the employers had disputed the workman's claim was in no way inconsistent with the possibility of his having a good claim. By asserting a claim he must be held, for the present at least, if not finally, to have exercised his option. The parties had joined issue under the Act, although it was true that little or nothing had been done in the arbitration. The purpose of the subsection was not solely to prevent double payment by the employer: it put the workman to a true election between the two remedies open to him. It was impossible that both the

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King v.

December 21, 1998.

processes at present pending should go on made by his solicitors on his behalf on 14th 1st Drv. concurrently. If the common law action failed, June 1922 as a condition of proceeding with there would be two judges qualified to award the present action, under reservation always of Edinburgh compensation—the Sheriff-Substitute under the respondent's right under section 1 (4) of Collieries section 1 (4) of the Act, and the Sheriff-Sub- the Workmen's Compensation Act, 1906, and Co. Ltd. stitute as arbitrator in the pending arbitration. decern." One of these judges would have to take cognisance of the expenses in the common law action; the other would have no concern with them (Scarf v. Jardine, (1882) 7 A.C. 345, per Lord Blackburn at p. 360; Burton v. Chapel Coal Co. Ltd., 1909 S.C. 430, per Lord Kinnear at p. 436 and Lord Low at pp. 438 and 439; M'Donald v. James Dunlop & Co. (1900) Ltd., 1905, 7 F. 533; Harrison v. Wythemoor Colliery Co., [1922] 2 K.B. 674, per Lord Sterndale M.R. at pp. 685 to 687 and Scrutton L.J. at p. 698; Cribb v. Kynoch Ltd. (No. 2), [1908] 2 K.B. 551, per Buckley L.J. at p. 560; Taylor v. Hamstead Colliery Co., [1904] 1 K.B. 838). [The Lord President referred to Westville Shipping Co. v. Abram Steamship Co., 1922 S.C. 571, per Lord President Clyde at p. 580, and Perry v. Clements, (1901) 17 T.L.R. 525.]

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Argued for the Pursuer: The notice of injury and claim of compensation by this workman did not constitute a claim in the sense of section 1 (2) (b) of the Act. A mere letter not enough. The claim must be an effective claim, either prosecuted to an award or at least to the point of some genuine litiscontestation. Here the employers had repudiated liability to pay compensation and themselves applied for arbitration. The pursuer had not initiated the arbitration proceedings. Actings hinc inde of that sort could not be held to bar the workman from his common law remedy. If they were, it would mean that if an injured workman met his employer and said to him, "I have been injured and claim compensation under the Act from you," and the employer replied, "You have no claim," the workman thereafter would be barred from bringing an action at common law; which was absurd (Stewart v. Perth General Station Committee, 1923 S.C. 356, per Lord President Clyde at p. 361, and Lord Sands at p. 364).

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The Lord President (Clyde).—The workman's action is founded alternatively on common law or on the Employers' Liability Act, 1880, and the present appeal is accordingly presented under section 14 of the Workmen's Compensation Act, 1906. The questions of law subm'tted for answer arise on the relevancy of certain averments of the pursuer and defenders regarding a claim for compensation under the Act of 1906 made by the workman prior to the raising of the action. The employers contend that by making a claim the workman exercised the option given him by section 1 (2) (b), and thus became barred from taking proceedings independently of the Act of 1906.

It was laid down by the House of Lords in the case of Powell v. Main Colliery Co. ([1900] A.C. 366) that the workman's claim for compensation, which is the first step in, and a condition precedent of any further, proceedings for the recovery under the Act of compensation for an injury (section 2 (1)), need not take the form of an actual application for arbitration, but may be satisfied by a simple notice of a claim for compensation given to the employer. With regard to the "proceedings" under the Act, of which the claim is the preliminary step, it was pointed out in Powell's case that the proceedings referred to are not primarily judicial in character, though arbitration may be required to decide differences which arise in the course of them— see section 1 (3). In the present case the workman's claim took the form of a perfectly clear and unambiguous letter from his solicitors claiming the statutory compensation of so much a week, and intimating immediate action to enforce it if not immediately settled. In the proceedings thus instituted, which included a medical examination of the pursuer, a question arose in consequence of the denial by the employers of their liability to pay compensation to the workman, and the employers thereupon applied for the settlement of that question by arbitration under the statutory schedules. This arbitration is still pending, and the workman has not withdrawn the claim, which must accordingly be settled in it. It is necessary to keep in mind the imperative character of the provisions of section 1 (3).

To the action of damages which the workman subsequently raised against his employers, the latter pled that the action should be dismissed in virtue of the provisions of section 1 (2) (b). The Sheriff - Substitute repelled this plea

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