Scottish Court of Session Decisions

Gilbert M'Feetridge, labourer, Whifflet, with the consent and concurrence of his father Benjamin M'Feetridge, as his curator and administrator-in-law, pursuer, brought an action against Stewarts & Lloyds, Limited, Glasgow, defenders, for payment of the sum of £500 damages in respect of personal injury sustained by the pursuer through the fault of the defenders, and for reduction, if necessary, of a decree dated 13th November 1911 pronounced by the Sheriff-Substitute at Glasgow ( Glegg) acting as arbitrator in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) between the pursuer and the defenders in which the arbitrator found that the pursuer had agreed to accept compensation under the Act at the rate of 10s. 3d. per week.

The pursuer averred—“(Cond. 1) The pursuer is a labourer, and is at present residing at 33 Miller Street, Whifflet. He is a domiciled Irishman, and is 16 years of age. By the law of Ireland minors have not capacity to enter into binding contracts.… (Cond. 2) The pursuer was for some time employed as a labourer by the defenders at their said iron works at Coatbridge. On or about 19th April 1911, while the pursuer was working at a part of defenders' works near a heavy turning lathe, his right hand was caught in the pinion wheels of the said lathe, and his little finger and part of his thumb were severely crushed and had to be amputated. (3) … Immediately below the pinions, and close to where the pursuer was standing before the accident, there was a sunk hole in the floor, about 3 feet long by 18 inches broad by 8 deep.… The pursuer, who was unaware of the existence of the said hole, put his foot into it, which caused him to stumble, and on reaching out to save himself from falling his hand came into contact with the gearing of the said machine.… (Cond. 4)The said injuries to the pursuer were caused solely by the fault of the defenders in failing to fence the wheels of the said turning lathe, and in permitting the said hole in the floor to remain uncovered while the machine was at work. The said machine was of a highly dangerous nature, and such as is usually fenced or guarded for the protection of persons working in the vicinity. The defenders' works are a factory within the meaning of the Factory and Workshops Act 1901 (1 Edw. VII, cap. 22), and it was the duty of the defenders, in terms of section 10 of the said Act, to fence the said machine and to maintain the fencing in an efficient state, but they, entirely neglected that duty.… (Cond. 6) On or about 8th May 1911 an agent who .represented the defenders called upon the pursuer and informed him that he was entitled to compensation. The pursuer's wages at the time of the accident were £1, 0s. 6d. per week, and the said agent stated to him that he was entitled to receive 10s. 3d. per week from his employers while he was disabled, and discussed with the pursuer whether he would accept a lump sum in full of the said weekly payment. The said agent did not inform the pursuer, and the pursuer was entirely ignorant of the fact, that he had any rights at common law, or that he could possibly have any claim in respect of his injuries except what was offered by the said agent. The pursuer had no legal advice, and the said agent did not suggest to him that he should take any. At said interview the pursuer stated that he would consult with his brother who was coming from Ireland as to whether he should take a weekly payment or compound same for the lump sum. He accordingly consulted with his brother, a boy of about 18 years

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of age, and thereafter he called at the defenders' works on or about 12th May 1911 and stated that he would accept the said weekly payment. The pursuer received payment of the said weekly sum of 10s. 3d. for the period from 19th April to 30th June 1911, and on the occasion of each payment he signed a receipt therefor in the terms presented to him. (Cond. 7) On or about 9th August 1911 the defenders presented an application to the Sheriff-Substitute of Lanarkshire at Airdrie, under section 16 of the first schedule to the Workmen's Compensation Act 1906, in which they craved an order ending or diminishing the said weekly payment. On the said application being served on the pursuer he for the first time consulted a solicitor, and, on inquiry being made into the facts, he was informed that he had a claim for compensation at common law. The pursuer accordingly lodged a defence to the said application, in which he maintained, inter alia, that it was incompetent for the Sheriff to decide that he had agreed to accept compensation under the Workmen's Compensation Act; that he had never made any agreement to accept such compensation; and that in any event the alleged agreement was not binding on him in respect he was in minority and his curator did not give his consent to the acceptance by the pursuer of the said weekly payment as a discharge of all claims competent to him. After proof in the said application the Sheriff-Substitute on 13th November 1911 found that the defenders had agreed to pay, and the pursuer had agreed to accept, compensation at the rate of 10s. 3d. per week, and in respect the appellant was no longer wholly incapacitated as the result of the said accident reduced the compensation payable to him to 2s. per week. The pursuer presented an appeal by way of Stated Case to the Court of Session against the said findings, and on 22nd December 1911 the Second Division of the said Court refused said appeal, without prejudice, however, to pursuer's rights to establish a claim at common law if he should decide to do so. (Cond. 8)As already mentioned, the pursuer when he agreed to accept the said weekly payment was in total ignorance of his legal rights. In particular, he did not know and was not informed that he had any rights at common law, or that by accepting compensation under the Workmen's Compensation Act he might be held to have waived his common law claim. In point of fact he never elected as between his rights under the Workmen's Compensation Act and his rights at common law, and was never in a state of knowledge which made it possible for him so to elect. He never agreed to accept compensation within the meaning of the said Workmen's Compensation Act. Further, the pursuer being in minority could not without the consent of his curator at law validly elect between his different rights, and he could not and did not elect to accept compensation under the said Act to the exclusion of his common law claim.…”

The pursuer pleaded, inter alia— ‘(1)The pursuer having been injured by the fault of the defenders, and the sum sued for being reasonable, decree should be pronounced in terms of the petitory conclusion of the summons, with expenses. (2)The pursuer having been a minor, and having become a party to the alleged contract referred to in cond. 6 without the consent of his curator, is not bound by the said contract. (3)The pursuer is entitled to set aside the said alleged contract on the ground of minority and enorm lesion.”

The defenders pleaded, inter alia—“(l)The averments of the pursuer being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed. (2)The pursuer having accepted of compensation under the provisions of the Workmen's Compensation Act 1906 in respect of the injuries sustained by him the present action is incompetent, and the defenders should be assoilzied. (3)The agreement of the pursuer to accept compensation having been judicially affirmed by the said judgment of the Sheriff-Substitute, and in the consequent proceedings no relevant grounds for reduction of said judgment being stated, the matter is res judicata, and the present action so far as it concludes for damages is incompetent. (4) Separatim, the petitory conclusions of the summons being incompetent while the agreement to accept compensation stands unreduced, the pursuer's averments in support of these conclusions should not meanwhile be remitted to probation pending the issue of any competent proceedings for reduction of the agreement. (5)The pursuer having, while employed as a labourer in Scotland, entered into a contract made and to be performed in Scotland which was incidental to and arising out of such employment, the validity and effect of said contract fall to be decided by the law of Scotland.”

The following is a specimen of the receipts granted by the pursuer for payment of compensation:—

“Received this twelfth day of May 1911 from Stewarts & Lloyds, Limited, British Tube Works, Coatbridge, the sum of One pound, fifteen shillings and elevenpence, being weekly compensation to date under the Workmen's Compensation Act 1906, under which Act I elect to claim for personal injury by accident sustained by me on or about the 19th day of April 1911.

Signature, Gilbert M'Fetridge.

Occupation, Labourer.

Address, 13 North Bute St.

Witness, Chas. J. Smith.

Witness, George Kerr.”

On 2nd January 1913 the Lord Ordinary ( Ormidale) repelled the second, third, and fourth pleas-in-law for the defenders, and fixed a diet for the adjustment of issues.

Opinion.—This is an action raised by a minor with the consent of his curator concluding for a sum of damages in respect of injuries alleged to have been received by the pursuer through the fault of the defenders.

The defenders plead—‘… [ quotes defenders'

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plea 2].…’ In answer to this plea the pursuer, inter alia, maintained that he exercised his option to claim compensation under the Act and not to take proceedings independently of the Act without the consent of his father, who is his curator, and that, accordingly, the agreement so to do is null and void and therefore no bar to the present proceedings.

The general rule is that deeds granted by a minor having a curator without the curator's consent are null.

There is nothing in the Workmen's Compensation Act 1906 which modifies the common law in regard to a minor's capacity to contract— Stephens [1904] 2 KB 225.

There are, however, certain exceptions to the general rule, and the exception on which the defenders rely is this—that a minor who is engaged in a business can enter into contracts in the line of that business. It is thus expressed by Erskine, Inst., i, 7, 38—‘A minor who betakes himself to any business or profession as trade, manufacture, law, & cannot be restored against deeds granted by him in relation to that employment.’ See also Galbraith, M. 9027; M'Donald, M. 9038; Heddle, June 5, 1910, F.C.; Campbell v. Baird, 5 S. 335; Argo v. Smarts, Irvine, Just. Cases, i, 250; Stevenson, 19 Macph. 919; Dennistoun v. Mitchell, 12 D. 613.

It was mentioned that the agreement in question was, within the meaning of this exception, incidental to the business in which the pursuer was engaged, viz., that of a workman or labourer.

I am unable to give effect to this contention. In the first place, I think it is extremely doubtful whether the occupation of a general labourer can be regarded as a business or profession to which a person can be said to have betaken himself in the sense of the passage I have quoted from Erskine, for in the ordinary case, beyond the initial contract of service, no occasion arises in the relation of master and servant for the workman in the regular course of his work to enter into any further or other agreements either with his employer or anyone else. In the second place, the agreement in question had, in my judgment, nothing whatever to do with the proper business of the pursuer, which was simply to contribute certain labour in return for an agreed-on wage. It was quite foreign to the scheme or intention of the contract of service and was really independent of it, although the accident which gave rise to the necessity of a new contract or agreement being entered into occurred in the course of the pursuer's employment. But the new contract was not like an order given for goods by a trader, an act performed in the natural and ordinary course of his business and with a view to promote that business. It was concerned with a totally different subject-matter, viz., the ascertainment of compensation. The situation which gave rise to the agreement was unexpected and novel, and it necessitated the exercise of a very different kind of judgment to that which the pursuer had to bring to bear on his day-to-day occupation. Looking to the different results, when measured in money, which might follow according to the way in which the option was exercised and the many considerations which required to be taken into account when weighing the possible advantages of the alternative courses, it was pre-eminently a position in which a minor was entitled, if he had a curator, to get his assistance. Here the pursuer had a curator but did not get his assent to the course he elected to follow. It appears to me a typical case for the application of the rule of Scots law, and that the defenders cannot hold the pursuer to the bargain or agreement entered into by him in the exercise of his own unaided judgment.

The averment of the defenders that the pursuer's father had written through solicitors in Ireland does not, as I read the averment, infer the father's consent to or homologation of the option exercised by the pursuer, and accordingly I am prepared to hold, without further inquiry, that the pursuer is not barred by his election to take compensation under the Act from insisting in the present action.

Apart from his incapacity as a minor to enter into the agreement, I should have been prepared to hold that, in the admitted circumstances the acceptance of the weekly payments for ten weeks does not bar the pursuer from proceeding to recover damages at common law. I come to this conclusion on the ground that, because of his extreme youth and inexperience and the ignorance of his rights thence resulting, the meaning and effect of his accepting the weekly payments made to him was not understood by the lad, and that he was quite unaware that he was exercising an option under the Workmen's Compensation Act. What he was asked by the defenders' clerk or agent to do was to make up his mind between taking compensation in a lump sum or by weekly payments, and that was what he desired to consult and did consult his brother about. It is quite true that, so far as I can see, there was no attempt to rush him into any decision on the matter discussed. It is also true that the receipts signed by him described the payments made to him as weekly compensation under the Workmen's Compensation Act 1906, ‘under which Act I elect to claim for personal injury by accident sustained by me.’ But the meaning of this statutory election was not brought home to the pursuer. Indeed, the possibility of his having any right to compensation independently of the Act was not brought before him at all. What was discussed with him was ‘lump sum or weekly payments.’ All that the defenders say is, that their clerk had a long talk with the pursuer as to the compensation payable to him, and, again, that it was made quite clear to the pursuer that it was compensation under the Act that was being discussed, and that it was explained to him that if he accepted a lump sum it would terminate his right to receive any further payments, whereas if he took weekly

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payments he could arrange for having them redeemed afterwards for a single payment. The defenders do not suggest, far less distinctly aver, that they explained to the pursuer that he had any option between accepting compensation under the Act and taking proceedings independently of the Act, or that they satisfied themselves otherwise that he was aware of it. I read their statements as in no way contradicting the pursuer's averments to the effect that what was exclusively the topic of conversation between their clerk and the pursuer was, as I have said, ‘lump sum or weekly payments.’ Now it may be that an employer owes no duty towards an employee of full age and ordinary experience to see that he fully comprehends what he is contracting about, but it seems to me to be otherwise in the case of a boy of sixteen, and that a bargain, the effects of which he could not be expected to appreciate without the aid of someone, be it his employer or some third party, ought not to be held to bar him from seeking redress at common law. The result of the decisions in this branch of the law appears to me to be, that if the Court is satisfied that the transaction was not a fair one it may be ignored, and that the transaction cannot be held to be a fair one when one of the parties to it, through no fault of his own, was honestly in ignorance of his full legal rights. That, in my judgment, giving effect to all that the defenders say on record, was the position of the pursuer in the present action. He was in a position very similar to that of the foreign workman in the case of Valenti, 1907 S.C. 695. The pursuer in that case, it was held, being a foreigner, was not in the ascertained circumstances in a position validly to exercise the option which he had. Here I think that the pursuer owing to his youth and inexperience was not, in the circumstances disclosed and admitted by the defenders on record, in a position to intelligently exercise the option. Had he been a workman of full age and ordinary experience, the receipts would have brought home to him the nature and effect of what he was doing, but the pursuer being only a lad of sixteen, and the discussion had by him with the defenders' clerk antecedent to his granting the receipts having been concerned only with the matter of lump sum or weekly payments, the receipts themselves cannot, in my opinion, be taken as conclusive evidence of a deliberate and intelligent resolution to forego any right the pursuer had to take proceedings under the Act.

It is said, however, that the matter is res judicata in respect of the decree or order of the Sheriff dated 13th November 1911. The curator was not a party to the arbitration, and I do not read the order as dealing with the question of the pursuer's capacity to contract at all. It is true that the second question of law stated by the Sheriff for the opinion of the Court is—‘Was the agreement binding on the appellant without the consent of his curator?’ That question, however, is not specifically determined by the findings which he pronounced, and the Court by their interlocutor of 22nd December 1911, while dealing with the first and third questions stated for their opinion, expressly declined to answer the second question. In these circumstances I hold that the matter is not res judicata.

If I am right in so holding, then it appears to me to be unnecessary to pronounce a decree in terms of the reductive conclusions of the summons.

As I hold that the pursuer being a minor had not, under Scots law, capacity to enter into the agreement without his curator's consent, it is not necessary for me to decide the question which was raised as to Irish law, but I may say that in my judgment (first) the law is not sufficiently ascertained by the decision in Cooper v. Cooper to warrant me in holding that under that law the contract in question was void on the ground of incapacity, and (second) that, assuming that the law is as stated by the pursuer when the contract is executed in Ireland, the application of the law of a foreign domicile is recognised in our practice as universal in all circumstances, and does not fall to be given effect to in a case like the present where the contract is executed and falls to be performed in Scotland, and does not in any way affect the personal or domestic relations of the minor. I think that to hold otherwise would be against the interests of minors themselves seeking work in this country, and would be unjust to Scotsmen contracting with them when in bona fide ignorance of the foreign law and when the circumstances were not such as to lay on them any duty to inquire into the matter.

“I shall repel the second, third, and fourth pleas-in-law for the defenders and order issues. I shall find the pursuer entitled to the expenses of the discussion in the procedure roll, and grant leave to reclaim.”

The defenders reclaimed, and argued—(1) The question whether the pursuer was entitled to compensation was finally determined in the Workmen's Compensation case, and the decision of the Sheriff-Substitute therein was res judicata and could not be questioned now. The Workmen's Compensation Act 1906 ( 6 Edw. VII, cap. 58) attributed finality to proceedings under it whether in fact or law—Schedule II, secs. 4 and 17. In Johnstone v. Spencer & Company, 1908 S.C. 1015, 45 S.L.R. 802, it had even been held that a sheriff-substitute in certain circumstances was bound to determine a question of status. If the objections now stated were not pleaded, then they were competent and omitted— Southhook Fireclay Company, Limited v. Laughland, 1908 S.C. 831, 45 S.L.R. 664; Nelson v. Summerlee Iron Company, Limited, 1910 S.C. 360, 47 S.L.R. 344. (2)On the question of capacity, the law to be applied was the law of the place of contract, viz., Scots law. The status of minority might be settled by the law of the domicile, but the capacity to contract must be settled by the law of

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where the contract was made. More especially was this the case where the person incapacitated by the law of his domicile went to another country and engaged there in business—Fraser, Parent and Child (3rd ed.), pp. 720–725; Dicey, Conflict of Laws (2nd ed.), pp. 534, 538; Cooper v. Cooper's Trustees, January 9,1885, 12 R. 473, 22 S. L.R. 314. (3) If Scots law fell to be applied, then the pursuer was not entitled to reduction. He was either in the position of a minor without curators or he must be regarded as forisfamiliated, and in either case his contracts were good. According to Scots law a father was the natural curator of his son, but if the father were abroad the want of his consent would not be regarded as creating a nullity— Wilkie v. Dunlop & Company, February 28,1834, 12 S. 506; Fraser, Parent and Child, (3rd ed.), p. 452. As a general proposition, it was true that a minor who had curators could not act without their consent; but this rule did not apply to contracts incident to the trade or business into which a minor might have entered, even where such contracts were to his enorm lesion—Erskine, i, 7, 38; Mackay's Manual of Practice, p. 395; Heddel v. Duncan, June 5, 1810, F. C.; Galbraith v. Leslie, 1676, M. 9027; M'Donald, 1789, M. 9038; Argo v. Smart, June 16, 1853, 1 lrv. 250; Stevenson v. Adair, July 5, 1872, 10 Macph. 919, 9 S.L.R. 168. In England the test was whether the contract was for the benefit of the minor— Stephens v. Dudbridge Ironworks Company, Limited, [1904] 2 KB 225; Cribb v. Kynoch, Limited (No. 2), [1908] 2 KB 551; Mullholland v. Whitehaven Colliery Company, [1910] 2 KB 278; Gaddy. Thompson, [1911] 1 KB 304. The agreement to take compensation was a contract incident to the trade or business into which the minor had entered. It was the primary interest of minors to get work by which they could maintain themselves, and it was not the policy of the law to empower minors to upset contracts thus made. In any event there was no relevant averment here of facts showing lesion, but only a plea-in-law, and some averment of lesion was necessary— Robertson v. S. Henderson & Sons, Limited, June 2, 1904, 6 F. 770, 41 S.L.R. 597.There was, further, no averment of misrepresentation in this case or of concealment of any fact that was solely in the knowledge of the defenders, and it was not the defenders' duty to put before the pursuer his common law claim— Valenti v. William Dixon, Limited, 1907 S.C. 695, 44 S.L.R. 532; Mackay v. Rosie, 1908 S.C. 174, 45 S.L.R. 178. The action was further incompetent in that it did not conclude for reduction of the receipts which the pursuer had granted for his compensation.

Argued for the pursuer—(1) The case was not res judicata in respect of the judgment in the Workmen's Compensation case. That judgment merely decided that there was an agreement, leaving it open to the pursuer to reduce it at a future date if he desired, and the Court of Session on appeal had expressly declined to decide whether the agreement was valid without consent of the pursuer's curator. (2)The pursuer's domicile was Irish, and his capacity to contract fell to be decided by the law of his domicile— Cooper v.Cooper, February 24, 1888, 15 R. (H. L.) 21, per Lord Watson at p. 29, and per Lord Macnaghten at p. 30, 25 S.L.R. 400, 13 A.C. 88; De Virte v. Macleod, January 12,1869, 7 Maoph. 347, 6 S.L.R. 236; Sottomayor v. De Barros, 1877, 3 P D 1. By Irish law the pursuer was an infant and was incapable of entering into such an agreement. If, however, Scots law applied, then a minor who had a curator, as the pursuer had, and bound himself without the curator's consent was entitled to resile—Stair, i, 6, 33; Bell's Com., 7th ed. pp. 129 and 130; Bell's Prin., section 2088; Kincaid, May 20, 1561, M. 8979; Robertson v. Oswald, January 1584, M. 8980; Bell v. Sutherland, January 1728, M. 8985; Thomson v. Pagan, July 3, 1781, M. 8985; M'Gibbon v. M'Gibbon, March 5, 1852, 14 D. 605; Stevenson v. Adair, cit. sup. A deed granted by a minor with curators was ipso jure null, lesion being presumed for it. In the present case the pursuer had a father and therefore a guardian, and it did not matter that he was out of the country—More's Stair, Note D, section 18; Scoffier v. Reid, 1783, M. 8936; Morison v. Stewarts, 1747, M. 8972; Hay v. Grant, 1749, M. 8973; Kirkman v. Pym, 1782, M. 8977. There was further no averment or plea that the pursuer was forisfamiliated, and for is familiation did not do away with the necessity for the curator's consent— Dundas v. Allan, 1711, M. 9034; Anderson v. Anderson, November 15, 1832, 11 S. 10; Fraser on Parent and Child, 3rd ed. p. 499. Further, even if contracts ancillary to trade fell to be excepted from the general rule, this was not a contract ancillary to the boy's trade—Ersk. i, 7, 38. Erskine there wrote of things strictly incidental to the employment as illustrated by the case of Heddel v. Duncan, cit. sup., and not of contracts affecting the whole future life. The test was—Did the agreement arise out of the contract of service? In the present case it arose rather from the negligence of the master— Dennistoun v. Mudie, January 31, 1850, 12 D. 613. In any event pursuer was entitled to reduction on the ground of enorm lesion. Pursuer could not be said to have elected to take compensation, as he was ignorant that he had a common law claim— Stewart v. Bruce's Trustees, June 10, 1898, 25 R. 965, 35 S.L.R. 780; Dawson's Trustees v. Dawson, July 9, 1896, 23 R. 1006, 33 S.L.R. 749; Fowler v. Hughes, January 23,1903, 5,F. 394,40 S.L.R. 321; Little v.P. & W. MacLellan, Limited, January 16, 1900, 2 F. 387, 37 S.L.R. 287. It was not necessary to make any specific averments of lesion, as lesion was obvious from the record. Further, it was not necessary to reduce the receipts, as these were merely prima facie evidence of an agreement and were not probative documents—Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94), section 38; Rhind v. Commercial Bank of Scotland, February 24, 1857, 19 D. 519, revd.3 Macq. 643; Crawford v. Bennet, June 19, 1827, 2 W. &S. 608.

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There was here no mixed question of fact and law, and therefore the pursuer was entitled to have the case sent to a jury— Campbell v. Caledonian Railway Company, June 6, 1899, 1 F. 887, 37 S.L.R. 34.