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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Campbell v. Barclay, Curle, & Co., Ltd [1904] ScotLR 41_289 (06 February 1904) URL: http://www.bailii.org/scot/cases/ScotCS/1904/41SLR0289.html Cite as: [1904] ScotLR 41_289, [1904] SLR 41_289 |
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Page: 289↓
[Sheriff of Lanarkshire.
The Workmen's Compensation Act 1897 enacts—First Schedule (1)—“The amount of compensation under this Act shall be ( a) where death results from the injury (i) if the workman leaves any dependants.” … Section 7 (2)—“‘Dependants’ means ( b) in Scotland such of the persons entitled according to the law of Scotland to sue the employer for damages or solatium in respect of the death of the workman as were wholly or in part dependent upon
Page: 290↓
the earnings of the workman at the time of his death.” Held that the mother of a deceased workman, who had been deserted by her husband and was in part dependent on her son at the time of his death, was not entitled, her husband being alive, to sue for compensation under the Act.
This was an appeal at the instance of Mrs Agnes Wilson or Campbell, 116 Renwick Street, Kinning Park, Glasgow, on a case stated under the Workmen's Compensation Act 1897, in an arbitration under that Act between the appellant and Barclay, Curie, & Company, Limited, shipbuilders, White-inch, Glasgow.
The Sheriff-Substitute ( Mitchell) stated as follows—“The appellant averred that her son Alexander Campbell was in the employment of the respondents, and that he fell into and was drowned at Princes Dock, Govan, in, on, or about a factory within the meaning of said Act belonging to the defenders.
“The appellant further averred in her condescendence—‘The applicant, who is the mother of the deceased, is not a widow, but has been deserted by her husband, whose present address is unknown to the applicant, although she believes that he is in some part of South Africa. The applicant has not only been deserted by her said husband, but has received no aliment or assistance from him for a considerable time. At the time the said deceased Alexander Campbell met his death on 29th March last, the applicant was the only person dependent upon the deceased, and she was solely dependent upon him, as her husband had deserted her and was not contributing to her support, and she personally was only able to make a shilling or two occasionally as a charwoman. The said deceased Alexander Campbell on 29th March last was in the employment of the respondents, and was paid a weekly wage of 10s., which wages he regularly handed over to his mother after receipt of same from his his employers.’ It is also averred that the appellant was ‘solely and wholly’ dependent on the deceased.
The respondents admit that appellant was drowned at Princes Dock, Govan, they believe, on 27th March 1903, and that he was in their employment. They deny that his average weekly earnings were 10s. per week, and that the appellant was solely, or solely and wholly, dependent upon him. They do not admit the other foresaid averments of appellant. Respondents’ first plea is ‘No title to sue.’
Parties were heard before me on the respondents' said plea of ‘No title to sue,’ and on 13th November 1963 I sustained that plea.
I therefore dismissed the application, and found the respondents entitled to expenses.”
The question of law for the opinion of the Court was—“Whether a married woman, who avers that her husband deserted her, and that his present address is unknown, although she believes he is in some part of South Africa, and that she has received no aliment or assistance from him for some considerable time, is entitled to sue an application under the Workmen's Compensation Act 1897 in respect of the death of a son, on whom she avers she was ‘solely and wholly’ dependent, save that she was able to make a shilling or two occasionally as a charwoman?”
Argued for the appellant—The Workmen's Compensation Act 1897 was to be liberally interpreted. The definition of “dependants” in the Act (sec. 7 (2) ( a)) applicable to England and Ireland clearly included the appellant, and this was an element to be considered in construing the clause (sec. 7 (2) ( b)) defining “dependants” in Scotland. No case was on its merits more worthy of favourable consideration than the case of a deserted wife in the position of the appellant. There was in fact one person, and one person only, who had suffered loss by the death of this man, viz., his mother, the appellant. The argument for the respondents proceeded wholly on a much too technical reading of sec. 7 (2) ( b), whereas the real question to be regarded in determining whether a person was a “dependant” was the question whether in fact he or she was in a position of dependency on the injured workman. The desertion of the husband was equivalent to the renunciation of his rights, so that the case of Whitehead v. Blaik, July 20, 1893, 20 R. 1045, 30 S.L.R. 916, did not apply. The position was that the husband, who was the only other person entitled to sue, had given up his claim or refused to press it, and in these circumstances the appellant had a right to sue— Pollok v. Workman, January 9, 1900, 2 F. 357, 37 S.L.R. 270, per Lord Justice-Clerk; Darling v. Gray, May 31, 1892, 19 R. (H.L.) 31, per Lord Watson, 29 S.L.R. 910.
Argued for the respondents—Section 7 (2) ( b) of the Act, in defining “dependants” in Scotland, made it an essential condition that the person should be entitled, according to the law of Scotland, to sue the employer of the workman for damages or solatium in respect of the death of the workman. “Dependants” was thus defined by a reference to common law, and it was clearly settled that at common law a married woman could not sue in her own name for damages arising from the death of her son, her husband not having renounced his right of action— Whitehead v. Blaik, July 20, 1893, 20 R. 1045, 30 S.L.R. 916; Aitken v. Gourlay & M'Nab, March 4, 1903, 5 F. 585, 40 S.L.R. 398. It had been expressly decided, following the case of Whitehead, Whitehead supra, that the mother of a deceased workman was not entitled, the father being alive, to sue for compensation under the Workmen's Compensation Act— Barrett v. North British Railway, July 11, 1899, 1 F. 1139, 36 S.L.R. 874. The fact of the husband being in desertion was in no sense a renunciation of his right to sue, for it did not affect his liability, if he could be found, to aliment his children, or the liability of his children to aliment him— Foxwell v. Robertson, May 31, 1900, 2 F. 932, 37 S.L.R. 726.
Page: 291↓
The following appears to be the material facts—The appellant's son, while in the employment of the respondents, was drowned on 29th March last by falling into the Princes Dock, Govan, in, on, or about a factory belonging to the defenders, within the meaning of the Act. The appellant is not a widow, but she has been deserted by her husband, whose present address is unknown to her, although she believes that he is in some part of South Africa, and she has received no aliment or assistance from him for a considerable time.
At the time when her son was drowned she was dependent, and was the only person dependent, upon him, and she is only able to make a shilling or two occasionally by acting as a charwoman. Her son received from the respondents a weekly wage of 10s., which he regularly handed over to her.
The respondents plead that she has no title to sue, and the Sheriff-Substitute has sustained this plea.
The answer to the question depends upon the construction and effect of the provisions of the Workmen's Compensation Act 1897, by the First Schedule (1) ( a) (i) of which it is, inter alia, provided that where death results from the injury, if the workman leaves any “dependants” wholly dependent upon his earnings at the time of his death, the sum payable shall be ascertained as therein stated; and by section 7 of the Act it is, inter alia, declared that “dependants” means ( b) in Scotland such of the persons entitled, according to the law of Scotland, to sue the employers for damages or solatium in respect of the death of the workman as were wholly or in part dependent upon the earnings of the workman at the time of his death.” The answer to the question put in the case therefore in my judgment comes to depend upon whether the appellant would have been entitled according to the law of Scotland to sue the respondents for damages or solatium in respect of the death of her son if his death had been caused by fault on their part.
It is well settled as a general rule in the law of Scotland that a married woman whose husband is alive is not entitled to sue an action for damages arising from the death of one of her children. Thus in Whitehead v. Blaik ( 20 R. 1045) it was held that a married woman, even with the consent and concurrence of her husband, had no title to sue for damages in respect of the death of her son, her husband not having renounced his right of action. Again, in the case of Barrett v. North British Railway Company ( 1 F. 1139) the Court (following Whitehead v. Blaik) held that the mother of a deceased workman, whose parents were in part dependent upon him, was not entitled, the father being alive, to sue for compensation under the Act. It is not alleged in the present case that the appellant's husband is dead, but only that he has deserted her, so that the question arises whether his desertion is equivalent for the purposes of the present question to his death, and I am of opinion that it is not. In this connection I may refer to the case of Aitken v. Gourlay & M'Nab ( 5 F. 585), in which it was decided that a woman who had divorced her husband for desertion, and who alleged that she did not know where he was, or whether he was alive, had not a title to sue an action for damages for the death of one of the children of the marriage against persons to whose negligence it was alleged that the death was due.
The decided cases appear to me to establish that a person in the situation of the appellant is not, according to the law of Scotland, entitled to sue the employers of one of her children for damages or solatium in respect of the death of such child under the circumstances stated in the case, and I therefore think that she is not a “dependant” of her son within the meaning of section 7 of the Workmen's Compensation Act of 1897. But if this is so she is not entitled to insist in her claim under that Act.
For these reasons I am of opinion that the question put in the case should be answered in the negative.
Page: 292↓
The Court dismissed the appeal.
Counsel for the Appellant— Salvesen, K.C.— Munro. Agents— St Clair Swanson & Manson, W.S.
Counsel for the Respondents— Wilson, K.C.— Younger. Agents— Morton, Smart, Macdonald, & Prosser, W.S.
