Macgregor v. Lord Advocate and Another

Factual and Procedural Background

The Plaintiff, a medical student, brought an action against the Defendant Lord Advocate as representing the War Department and a Sergeant of the Motor Transport Company, Royal Army Service Corps, claiming damages for personal injuries sustained when the Plaintiff was knocked down and injured by a motor car driven by the Sergeant in the course of his duties. The Defendant Lord Advocate pleaded that the War Department was not liable for the negligent acts of the Sergeant, and therefore the action against the Lord Advocate was incompetent and should be dismissed. The Lord Ordinary sustained this plea and dismissed the action against the Lord Advocate. The Plaintiff appealed the decision.

Legal Issues Presented

1. Whether an action of damages for negligence lies against the Crown or a department of State for the wrongful acts of its servants.
2. Whether the constitutional principle that the Sovereign can do no wrong applies in Scotland as it does in England.
3. Whether the Crown or a department of State can be held vicariously liable for the negligence of its servants, specifically soldiers acting in the course of their duties.

Arguments of the Parties

Plaintiff's Arguments

• The action was competent and there was no reason why the maxim qui facit per alium facit per se (he who acts through another acts himself) should not apply to a department of State as well as to a private person.
• The Defendants’ plea was based on an outdated medieval English theory that never applied in Scotland, which held that the King was not subject to the jurisdiction of his own courts in contract or tort.
• The Scottish Court of Session historically had jurisdiction over the Sovereign personally, and subsequent cases have assumed this principle, addressing only procedural matters.
• The Plaintiff relied on historical cases and statutory provisions (such as the Crown Suits Act 1857) to argue that the Crown or its departments could be sued in respect of a wrong.

Defendant Lord Advocate's Arguments

• The action against the War Department was incompetent based on the constitutional principle that a department of State cannot be sued for damages for a wrong, as the Government constitutionally is the Sovereign who can do no wrong personally or by ministers cognisable in a court of law.
• The Crown cannot be held liable for the wrongful acts (torts) of its officers or servants.
• The Crown Suits Act 1857 does not alter this constitutional principle and is confined to actions that may competently be raised.
• A soldier serving the State is not an employee in the sense that would make the War Department vicariously liable for his acts under common law principles of master and servant.
• Judicial dicta and case law support the view that the Crown is not liable for negligence of its servants.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
A v. B (1531)	Recognition that the Court of Session had jurisdiction over the King personally.	Supported the Plaintiff’s argument that the Crown could be sued in Scotland.
Hay v. Officers of State (1832)	Procedural considerations in suing the Crown or its officers.	Referenced to highlight procedural issues rather than substantive immunity.
King's Advocate v. Lord Dunglass (1836)	Procedural and jurisdictional matters relating to Crown suits.	Used to illustrate historical jurisdictional principles in Scotland.
Somerville v. Lord Advocate (1893)	Discussion of Crown liability and procedural aspects.	Supported the Crown’s position on immunity from tort liability.
Smith v. Lord Advocate (1897)	Contrary authority on Crown liability in tort.	Noted but not followed by the court.
Wilson v. 1st Edinburgh City Royal Garrison Artillery Volunteers (1904)	Contrary authority on Crown liability in tort.	Noted but not followed by the court.
Tobin v. The Queen (1864)	Distinction between officers with discretion and servants without discretion for Crown liability.	Supported the Crown’s immunity from liability for officers’ acts done in discretion.
The Queen v. Williams (1884)	Executive Government held liable for negligence in New Zealand context.	Not directly applied; counsel for respondent not called on.
Wilson (7 F. 168)	Doctrine that Crown cannot be liable or sued for damages for torts of its officers.	Affirmed by the court as binding authority supporting Crown immunity.

Court's Reasoning and Analysis

The court analyzed the constitutional principle that the Sovereign (the Crown) cannot be sued for wrongs committed by its servants, reflecting the maxim that "the King can do no wrong." This principle was acknowledged as established in English law and accepted in Scotland following the Union of 1707, creating a presumption of uniformity in constitutional principles. The court found no Scottish case law expressly contradicting this principle, and judicial dicta supported the Crown's immunity from tort liability.

The Plaintiff's arguments invoking vicarious liability and statutory provisions such as the Crown Suits Act 1857 were rejected as insufficient to overcome the constitutional immunity. The court was not persuaded that soldiers acting in the course of their duties are employees in the relevant legal sense to impose vicarious liability on the War Department.

While the court acknowledged that the current state of the law might be unsatisfactory from a public policy perspective, it emphasized that any change should come from legislative amendment rather than judicial intervention. The court thus adhered to the established legal doctrine and dismissed the action against the Lord Advocate as representing the War Department.

Holding and Implications

The court UPHELD the dismissal of the action against the Defendant Lord Advocate representing the War Department, ruling that an action for damages for negligence will not lie against the Crown or its departments for the wrongful acts of their servants.

This decision means that individuals injured by the negligent acts of Crown servants, such as soldiers acting in the course of their duties, cannot seek damages directly from the Crown or its departments in tort. The ruling reflects the constitutional doctrine of Crown immunity in tort and confirms that any changes to this rule must be made by legislation. No new legal precedent was established; rather, the court reaffirmed existing principles.