Scottish Court of Session Decisions

Lord Ardwall—I am of opinion that the Sheriff has decided this case rightly.

The question is whether the pursuer is excepted from the category of a “workman” by reason of his being, in terms of section 13 of 6 Edward VII, c. 58, a member of the employer's family dwelling in his house. Now it is stated in the case that the pursuer is the son of the defender, who is the employer in this case, and by said section 13 “member of a family” includes a son. There is therefore no doubt that the pursuer was a member of the employer's family.

The question remains whether in the circumstances he is properly described as a member of the employer's family “dwelling in his house.” I can imagine cases in which the question whether this provision of the statute was satisfied or not might be one of some difficulty, but in the present case I see really no difficulty, nor any room for refinements as to the precise meaning of the words under consideration. I think the question simply is, whether when the accident happened the pursuer could correctly be described as a dweller in his father's house. Now I think he could. It was true that at the date of the accident he had gone to Oban temporarily on a particular piece of work, but according to no ordinary meaning of language could he be said to have his dwelling in Oban, or to have been other than a mere sojourner there. His dwelling place, according to the facts stated, was in my opinion his father's house, and no other place; indeed there is no suggestion that he dwelt anywhere else except in Oban, with which matter I have already dealt. No other house than his father's either in Oban or Glasgow is mentioned in the case as the house where he dwelt. A man's dwelling-place or dwelling in ordinary language is his habitation, his place of residence, or his abode, which when he leaves he is considered to be on a journey, and to which he returns when his journey is finished; and in the pursuer's case the only house that answers to this description is his father's house in Glasgow. I have therefore no doubt on the facts stated that the pursuer was dwelling in his father's house at the time of the accident in the sense of the Act, although temporarily absent from it on a particular piece of business. I therefore think that he must be held to fall within the exception in the Act, and was not a workman in the sense of the Act, nor entitled to compensation under it.

Lord Salvesen—This is a claim under the Workmen's Compensation Act 1906, at the instance of a son against his father, in whose employment the appellant was at the date of the accident referred to. So far as appears, the appellant was employed by the respondent on the ordinary terms applicable to a working glazier. Had he lived outside of his father's house there would have been no doubt of the validity of his claim; but the Act provides (section 13) that the term “workman” does not include “a member of the employer's family dwelling in his house,” and the Sheriff-Substitute has held that the appellant's claim is there by excluded. I have come, with some reluctance, to agree with him. At first I thought that the words “a member of the employer's family” might not be applicable to a son who was of full age and thus forisfamiliated, but the definition of this term in the same section precludes such a construction. The only other question then comes to be whether he was dwelling in his father's house at the time when the accident occurred. The facts are that he was then living in lodgings in Oban, where he had been for over a fortnight continuously, but this absence from his father's house was incidental to his employment with his father, who had sent him to Oban in connection with a job which he had there. Before he went to Oban he lived with his father, and after the accident he returned to his father's house, where his belongings have all along been. These facts, I think, justify the inference that his ordinary dwelling-place was in his father's house, and that therefore he was dwelling there within the meaning of the Act. It is plain that, except in the rare case of a member of the family working in the employer's house and being there injured, the construction of the Act contended for by the appellant would deprive this provision of all effect, and I cannot think that its application is to depend on such accidental circumstances as, for instance, that on the night before or the night after the accident the injured workman happened to be living at the hotel, or in lodgings, or in a friend's house, when his only home was in his father's house.

Another suggestion was made in the course of the debate that the words “as such” might be read into the latter clause. If these words had been in the Act I should have been prepared to hold, on the facts here, that the appellant, who paid his father an ample sum weekly for his board and lodging, might be described as living with his father, not as a member of the family but as a lodger. Such a construction would have obviated the necessity of discriminating in a matter of this kind between a son of full age who lodged with strangers and a son who preferred to live with his father and pay him a reasonable board. I can, however, see no warrant for implying words that are not expressed in the Act, although I confess that I have failed to understand why the Legislature should have imposed a disability upon persons in the position of the appellant merely by reason of their preferring their father's house to that of a stranger as their place of residence. For these reasons I have come to agree with your Lordships that we must answer the first question of law in the affirmative and the second in the negative.

Lord Justice-Clerk—I have not myself had any serious difficulty in this case. With regard to the first point—whether the appellant was a member of the respondent's

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