When English and Scots Disa gree
Page 49
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By Our Legal Adviser
THERE have recently been two rather disturbing examples of a serious divergence in two separate .corners of the law between England and Scotland. It is, of course, well known even to most laymen that Scotland has its own legal System, and that as a result, as its origins are not the same as the Common Law of England, there are many matters— such as the law of property—where things are quite different north of the Border.
On the other hand, the majority of modern Acts of Parliament involving the creation of offences—such as the laws relating to road traffic or shops—apply equally to both countries. And in other matters, such as the recovery of damages for negligence, if the procedural details are slightly different, there is a natural tendency not to drift apart on matters of principle, more especially as the ultimate appellate tribunal—the House of Lards—is the same for both countries.
Different interpretations of the law are obviously undesirable in such a small island as this, where commercial interests and employment contracts know no " border " limits. Two recent examples of different interpretations of the same principles of law—one at least of which involves a most important matter of principle—are noteworthy.
The first—though n o t i n point of time—was disclosed in the course of the judgments in the Divisional Court case of Stone v. Boreham (The Commercial Motor, July 11). That was an appeal by the prosecutor from the dismissal by the magistrates of a summons against the owner of a mobile shop for selling food on a Sunday, contrary to Section 47 of the Shops Act, 1950. By Section 58 of the Act, this prohibition was extended "to any place where any retail trade or business is carried on as if that place were a shop."
The Court—in dismissing the appeal—held emphatically that a mobile shop was not a shop within the meaning of the Act, and in so doing followed an earlier decision of the same Court in 1938 that an ice-cream box-tricycle was not a " place " where retail trade was carried on. But in Scotland it was held in 1949 that a van from which ice cream was sold was such a "place," on the basis that even if the van could not be said to be a place the ground on which it stood was.
Intention of the Act
Such distinctions may well be fanciful to laymen, but no Act of Parliament, however carefully drawn, can cover every possible set of facts. The Scottish Court seems to have come down that side of the fence in its interpretation because it looked at the obvious intention behind the Act —to restrict Sunday trading from whatever premises or place it was carried on.
Lord Goddard, Lord Chief Justice, however, whilst agreeing that this was so and that such mobile shops ought to be within the Act, thought that the Act was not sufficiently explicit to achieve this end, and if Parliament wanted to enact this it must re-examine the position and make its intention clearer.
The second example of differing interpretations might have more serious consequences, concerning as it does the right of an employee to damages for injury suffered in the course of his employment. It has long been the law that an employer is responsible for providing suitable tools and equipment for his employees, and that if he negligently provides something which by reasonable skill or inspection he could discover was defective he will be liable if injury results. This rule is not, of course, restricted to tools and machinery in the narrow sense, but extends to such defects in vehicles which the employees are required to drive or travel in.
What, however, is the position where the defect is a latent one which the employer could not have discovered by the exercise of reasonable care and skill in selection or subsequent inspection? Upon this question—as the taw stands at present—the Court of Appeal and the Scottish Court of Session are diametrically opposed in their ans'wers.
In Donnelly v. Glasgow Corporation (1953) the driver and conductor of a bus were injured as a result of a defect in the chassis. Their employers contended that the defect was one of design and was, therefore, the fault of the manufacturers from whom they had bought the bus. The Scottish Court of Session held, however, that this defence was not open to the employers; the law laid a personal responsibility upon an employer to provide safe plant for his employees to work with, and he could not delegate this responsibility to his supplier—however reputable—and then blame the latter.
Accordingly, however hidden the defect in a vehicle or tool, and however difficult, or even impossible, it would be for the employer to discover it by inspection, he will be liable if his employee is hurt through no fault of his own because of the defect. That is the Scottish position—a harsh view, one might think, of an employer's duty. But it must not be forgotten that the employer will have his remedy against his supplier.
Scottish Decision Rejected
Now in Davie v. New Merton Board Mills, Ltd.— decided at the end of last year—the Court of Appeal by a majority rejected the persuasive (but not binding) force of the Scottish decision, and held that in such cases an employer is not so liable. There an employee was injured by a piece of metal flying off a drift that he was using in his work and which his employers had bought from reputable suppliers some seven years previously.
These in turn had bought it from reputable manufacturers as one of a batch. The drift was defectively made in that it had an excessive hardness of steel which was not discoverable by reasonable .examination by the employer or his supplier, although it ought to have been known to the manufacturers.
The trial judge had found the employers liable for the loss of the workman's eye—following the Scottish decision --and one of the three judges in the Court of Appeal thought he was right. The balance of judicial opinion therefore is in favour of the Scottish viewpoint, i.e., the Scottish judges and two of the four English judges who have so far heard Davie's case.
But, so long as the majority decision of the Court of Appeal stands, an employee will have different rights arising from such an injury in England and Scotland. If his employers carry on business on both sides of the Border he will no doubt bring his action in Scotland—wherever he was working at the time.
Leave was given to the workman to appeal to the House of Lords and if that appeal is prosecuted there should emerge a decision on the point both final and binding in both countries.