Conway v. Dalziel and Others [1901] ScotLR 38_662 (13 June 1901)

Conway v. Dalziel and Others [1901] ScotLR 38_662 (13 June 1901)

The action is incompetent because it seeks a single sum of damages for two distinct wrongs, only one of which is alleged against all defenders; the removal and retention of organs is only averred against the doctors, not the other defenders. Amendment to cure this defect is not permissible under statute or practice.

Citation
[1901] ScotLR 38_662
Parties
Pursuer: Mrs Conway; Pursuer: Conway's children; Defender: Doctors Dalziel and Buchanan; Defender: Messrs J. & A. Mitchell; Defender: Thomas M'Lelland
Jurisdiction
Scotland
Judgment Date
13 June 1901
Procedural Posture
Civil Action for Damages / Appeal/reclaiming Motion Against Dismissal for Incompetency
Outcome
appeal dismissed; action dismissed as incompetent
Legal Topics
Competency of Action, Joinder of Defendants, Unauthorised Post Mortem Examination, Removal of Body Parts, Amendment of Pleadings
Civil Procedure Tort Competency of Action Joinder of Defendants Unauthorised Post Mortem Examination Removal of Body Parts Amendment of Pleadings

Case Brief

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Parties

Mrs Conway

Pursuer

Conway's children

Pursuer

Doctors Dalziel and Buchanan

Defender

Messrs J. & A. Mitchell

Defender

Thomas M'Lelland

Defender

Procedural Posture

Civil Action for Damages / Appeal/reclaiming Motion Against Dismissal for Incompetency

Legal Issues

  1. 1 Is an action competent where damages are claimed for two separate wrongs against different sets of defenders?
  2. 2 Can the pursuers amend the record to cure incompetency by deleting averments relating to one wrong?

Ratio Decidendi

The action is incompetent because it seeks a single sum of damages for two distinct wrongs, only one of which is alleged against all defenders; the removal and retention of organs is only averred against the doctors, not the other defenders. Amendment to cure this defect is not permissible under statute or practice.

Court Disposition

appeal dismissed; action dismissed as incompetent

Orders

  • Lord Ordinary's interlocutor adhered to
  • No amendment allowed