Herd and Others v. Summers and Others [1905] ScotLR 42_665 (27 June 1905)

Herd and Others v. Summers and Others [1905] ScotLR 42_665 (27 June 1905)

The Workmen's Compensation Act 1897 does not permit a claimant to proceed against both the direct employer and the undertaker jointly and severally; the claimant must elect the party to be held liable before initiating proceedings. The application as framed, seeking joint and several liability or liability in proportions as the court sees just, is incompetent and was rightly dismissed.

Citation
[1905] ScotLR 42_665
Parties
Claimants/appellants: Mrs Sarah Jane Lennon or Herd, Thomas Herd, Mary Ann Herd, and Helen Herd; Respondent: James Summers; Respondents: R. & W. Cuthbertson and Robert Cuthbertson
Jurisdiction
Scotland
Judgment Date
27 June 1905
Procedural Posture
Appeal From Sheriff Court Arbitration Under Workmen's Compensation Act 1897 / Inner House, First Division, Court of Session
Outcome
appeal refused; application dismissed as incompetent
Legal Topics
Workmen's Compensation, Joint and Several Liability, Employer's Liability, Competency of Claims
Employment Law Statutory Compensation Workmen's Compensation Joint and Several Liability Employer's Liability Competency of Claims

Case Brief

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Parties

Mrs Sarah Jane Lennon or Herd, Thomas Herd, Mary Ann Herd, and Helen Herd

Claimants/appellants

James Summers

Respondent

R. & W. Cuthbertson and Robert Cuthbertson

Respondents

Procedural Posture

Appeal From Sheriff Court Arbitration Under Workmen's Compensation Act 1897 / Inner House, First Division, Court of Session

Legal Issues

  1. 1 Whether a claimant under the Workmen's Compensation Act 1897 can proceed against both direct employer and undertaker jointly and severally, or must elect one party before coming to court
  2. 2 Whether the application as framed was competent

Ratio Decidendi

The Workmen's Compensation Act 1897 does not permit a claimant to proceed against both the direct employer and the undertaker jointly and severally; the claimant must elect the party to be held liable before initiating proceedings. The application as framed, seeking joint and several liability or liability in proportions as the court sees just, is incompetent and was rightly dismissed.

Court Disposition

appeal refused; application dismissed as incompetent

Orders

  • Court answered the question of law in the negative
  • Affirmed the determination of the arbiter