Scottish Court of Session Decisions

Duncan Gregor Macgregor, medical student, Joppa, pursuer, brought an action against the Lord Advocate as representing the War Department and Sergeant Robert Macfarlane. Motor Transport Company, Royal Army Service Corps, Leith Fort, Leith, defenders, in which he claimed payment of £1200 in name of damages for personal injuries sustained through being knocked down and run over by a motor car belonging to the War Department and driven by the defender Robert Macfarlane.

The defender, the Lord Advocate, pleaded—“1. The War Department not being liable in damages for the wrongful or negligent act of the defender, the said Sergeant Robert Macfarlane, the action, in so far as laid against the defender as representing the said Department, is incompetent and should be dismissed.”

On 27th May 1921 the Lord Ordinary ( Anderson) sustained the first plea-in-law for the defender the Lord Advocate as representing the War Department, and dismissed the action in so far as laid against him.

Opinion.—“In this case the pursuer sues the defenders, conjunctly and severally, for damages in respect of personal injuries. The pursuer was knocked down and severely injured by a motor car driven by the defender Sergeant Robert Macfarlane, who is a driver in the Royal Army Service Corps. The said defender was at the time driving said motor car in the course of his duty as a British soldier.

The Lord Advocate, as representing the War Department, pleads that the action in so far as laid against him should be dismissed as incompetent.

This plea was based on the constitutional principle that a department of State cannot be sued in an action claiming damages for a wrong. Each department of State, it was said, is a branch of the Government, the Government constitutionally is the Sovereign, and the Sovereign can do no wrong, personally or by any of his ministers, cognisable in a court of law.

It was conceded by the pursuer's counsel that this constitutional principle is recognised in England— Feather, 6 B. & S. 257; Tobin, 16 C.B., N.S. 310; Canterbury, 1 Philip 321; Addison on Torts (8th ed.), 140; Bevan on Negligence, i, 217, 220. Redress in England may be had by a subject against the Crown only where the claim is for implement of a contract, or for damages in respect of breach of contract— Thomas, L.R., 1874, 10 Q.B. 31; Windsor and Annapolis Railway Company, L.R., 1886, 11 A.C. 607—and then the subject must proceed, not by ondinary action, but by petition of right.

It was maintained, however, by the pursuer's counsel that in Scotland this constitutional principle does not apply, but that the Crown may be sued in the Scottish Courts in respect of a wrong.

As the constitution of Scotland has been the same as that of England since 1707 there is a presumption that the same constitutional principles apply in both countries. The pursuer's counsel was unable to refer me to any case in Scotland where the Crown or any department of State had been sued in respect of a wrong. He founded, however, on these three considerations—(1) That in England no action lies against the Crown even on contract, whereas in Scotland an action on this ground has always been competent. I was not impressed by this consideration, as I regard the English practice of proceeding by a petition of right to be a mere matter of judicial machinery.

The petition presupposes a ‘right’ in the subject which according to English procedure

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falls to be vindicated in that way.

(2) The Crown Suits Act of 1857, sec. 1, was founded on. Reference is there made to actions to be instituted in Scotland on the behalf or against Her Majesty or on the behalf or against any public department, and it was argued that this enactment thereby recognised that any action might be raised against the Crown or a department of State. That contention does not appear to me to be sound. The enacting words must in my opinion be controlled and modified by the constitutional principle I have alluded to, and the statutory provision is thus confined to those actions which may competently be raised.

(3) It was urged that the ordinary rule of the common law fell to be applied whereby a master is made vicariously responsible for the act of an employee performed in the course of his employment. I am not prepared to hold that a soldier serving the State is an employee in the sense of this common law rule, nor am I prepared to affirm that if he is, the War Department is his ‘master’ in the sense of the rule.

There is no reference to this question in any of the institutional treatises on the law of Scotland, nor is there any Scottish case which expressly decides the point maintained by the Lord Advocate. There are, however, judicial dicta which support the view contended for on behalf of the War Department. In the case of Smith, 25 R. 112, a bombardier raised an action against the Lord Advocate as representing the War Department, in which he concluded, inter alia, for damages in respect of wrongful acts of a court-martial by which he had been tried. The action failed and the Lord Ordinary (Kincairney) in dealing with the claim for damages said at p. 121—‘There remains the conclusion for £750 as damages for the wrongs which the pursuer has suffered through the illegal convictions of which he complains. Now on this point the question does not arise whether this Court could set aside the decrees of the court-martial complained of as ultra vires or incompetent. I am disposed to think that it could not. But I am not asked to interfere in that manner, for these illegal proceedings have already been set aside by competent military authorities. The pursuer does not challenge the proceedings of the military authorities, but rather founds on them, and maintains or may maintain that they prove conclusively that he has suffered a legal wrong. But the question is whether he can make any claim against the War Department for that wrong. He might probably have sued those members of the court-martial who did the wrong, if it could be shown that their proceedings were incompetent or ultra vires. But I am unable to see on what principle the War Department can be made liable. There is no authority for the proposition that when a Court falls into error or acts incompetently or exceeds its jurisdiction any department of the State can be made answerable. There is no reason why there should be such liability for the errors of courts-martial more than for the errors of other civil or criminal courts. It is said that the War Department is liable for the faults of the officers who formed the courts-martial as being the servants of the War Department; the answer is that they were not the servants of the War Department but the servants of the Crown; and if it be said that this action, although nominally against the War Department, is really against the Crown the conclusive answer appears to be that the Crown cannot be sued for wrong done by itself or its servants. It is settled, indeed, that an action will lie against the Crown on a contract entered into by the servants of the Crown or for breach of contract by the servants of the Crown— Thomas v. The Queen, 10 L.R., Q.B. 43; Windsor Railway Company v. The Queen, 11 L.R., A.C. 614. In these cases it was, I think, clearly recognised that the Crown could not be made liable in damages for wrong or delict or quasi-delict. Nor, it is thought, can it be liable where the damage has arisen from the negligence of the servants of the Crown— Viscount Canterbury v. Attorney-General, 1842, 1 Philip Ch. Cas. 306; Lord Advocate v. Hamilton, 29 S.L.R. 213. Questions of delicacy may arise in applying this principle, but I am unable to think that there is any doubt that neither the Crown nor any public department can be liable for the blunders of a court or of the officers supposing themselves to form a court, or of the Commander-in-Chief of the Forces in India. On the whole I am satisfied that the present case cannot be supported in any of its parts and that the defender is entitled to absolvitor.’ The Second Division adhered and Lord Young at p. 123 made these observations as to the conclusion for damages—‘I omitted to refer to the conclusion for damages. What I have to say upon that is, that while any servant in the public service may have an action for damages against any individual who has done him a wrong, even in connection with military service, I know of no authority for a claim of damages against Her Majesty's Government or any public department of Her Majesty's Government. Any individual in the public service may so treat another as to subject himself personally in damages, and the damages may be recovered in a court of law, but there is no authority for an action against the Government or a public department of the Government, which is the same thing, for all the departments in the Government just constitute the Government as representing Her Majesty.’ In the case of Wilson, 7 F. 168, in which a regiment of volunteers and its commanding officer were sued for damages in respect of the death of a child, killed by an ammunition waggon, the Lord Ordinary (Kyllachy) said at p. 170—‘In this case I have come to the conclusion that the action cannot be sustained as against Colonel Mackay as representing the volunteer regiment, and as holder and administrator of its funds. These funds belong to the Government—that is to say, the Crown—and it is, I think, an accepted doctrine that the Crown cannot be or sued for damages in respect of

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the “torts”—the wrongful acts of its officers. I therefore propose to dismiss the action so far as directed against Colonel Mackay as representing the regiment.’ This part of the Lord Ordinary's decision was reversed, but the general proposition laid down by the Lord Ordinary was not challenged.

These judicial dicta support the presumption to which I have alluded. As I find myself in entire agreement with the views expressed by these learned judges I shall sustain the first plea stated for the Lord Advocate and dismiss the action in so far as it is laid against him.

As counsel for the other defender conceded that the pursuer's averments were relevant I shall appoint an issue to be lodged for the trial of the cause.”

The pursuer appealed, and argued—The action was competent. There was no reason why the maxim qui facit per alium facit per se should not apply to a department of State as well as to a private person. The defenders' plea rested on a theory of mediaeval English jurists which never had any application in Scotland. This theory meant that the King was not subject to the jurisdiction of his own courts either in contract or in tort. In England the peculiar procedure of suing by petition of right had been introduced to remedy this. In Scotland, however, the Court of Session had always had jurisdiction over the King personally—Balfour's Practicks, p. 267, A v. B 1531, M. 7321; Tyler's History of Scotland, ix, p. 289. Subsequent cases had always assumed this principle and had only dealt with the proper procedure— Hay v. Officers of State, 1832, 11 S. 196; King's Advocate v. Lord Dunglass, 1836, 15 S. 314; Crown Suits Act, 1857 (20 and 21 Vict. cap. 44); Somerville v. Lord Advocate, 1893, 20 R. 1050, per Lord Kyllachy at p. 1067; Lord Kincairney at p. 1072, and Lord M'Laren, 30 S.L.R. at p. 1075; Judicial Review, v, p. 368; Dicey's Law of the Constitution, 8th ed. pp. 7, 8. In England in actions of tort the action was only competent against the individual, but the practice of the Crown was to pay the amount in which the defender was found liable—Dicey, Law of the Constitution, 8th ed. p. 557. The only authorities contra were— Smith v. Lord Advocate, 1897, 25 R. 112, 35 S.L.R. 117, and Wilson v. 1st Edinburgh City Royal Garrison Artillery Volunteers, 1904, 7 F. 168, 42 S.L.R. 138. Tobin v. The Queen, 1864, 16 C.B. (N.S.) 310, 33 L.J. (C.P.) 199, showed the distinction between suing an officer for whom the Crown would not be liable because of his wide discretion, and a servant who would have no such discretion. In The Queen v. Williams, 1884, 9 A.C. 418, the Executive Government of New Zealand had been held liable for negligence.

Counsel for the respondent were not called on.