Lord Justice-Clerk —As I tried this case I think it right to say that I considered then that the action was wholly uncalled for, and that there was no ground whatever for the proceedings taken by the pursuer for jury trial. He would have been much better advised if at the beginning he had been content to take his remedy under the Workmen's Compensation Act. It is a matter of discretion for the Court whether the expenses of an unsuccessful trial are to be deducted from a subsequent award of compensation. That is a wise provision of the Legislature, because there might be cases in which no such deduction should be made. But I do not think the Court should take a course which would result in this, that every workman in such cases would be able first to have an expensive jury trial, and then, if unsuccessful in that, to get an award of compensation without being liable in any of the costs of the trial. If we decide this case in the way proposed by Mr Moncrieff it would just be to establish such a principle. I can see no ground whatever for not deducting from the compensation the expenses which have been caused by the pursuer bringing this action instead of proceeding under the Act.
As to the expenses incurred since the trial, this is a novel question, and the discussion which has taken place has been necessary in order that the point might be cleared up. On the other hand the pursuer did not lead any evidence at the trial in support of his claim under the Workmen's Compensation Act as he might have done. I think the proper course will be to deduct from the award of compensation the expenses to which the defenders have been found entitled down to the date when the verdict was applied, and to allow no expenses to either party since that date.
Lord Kyllachy —I entirely agree.
Lord Low I am of the same opinion. The Legislature in the Workmen's Compensation Act conferred on workmen who were injured a very valuable right in the way of giving them compensation, and if a workman who is injured chooses not to take compensation to which he is entitled under that Act, but brings an action at common law with the object of obtaining a larger sum, it seems reasonable he should do so at his own risk.
It would be intolerable if the defenders had both to bear the expenses of successfully defending an action, and also had to pay large sums in compensation under the Workmen's Compensation Act. It seems to me that is just the kind of case which the provisions of section 1, sub-section 4, of the Act were designed to meet. I entirely agree with your Lordships.
Lord Stormonth Darling was absent.
The Court pronounced this interlocutor:—“… Decern against the defenders for payment to the pursuer of compensation at the rate of twelve shillings per week from 31st December 1904, in terms of the Workmen's Compensation Act 1897, under deduction of the sum of One hundred and eighty-seven pounds twelve shillings and eleven pence decerned for by interlocutor of 20th March 1906: Quoad ultra And no expenses due to or by either party.”
Counsel for Pursuer— M'Clure, K.C.— A. Moncrieff. Agents— Simpson & Marwick, W.S.
Counsel for Defenders— G. Watt, K.C.—Horne. Agents— W. & J. Burness, W.S.