Scottish Court of Session Decisions

Margaret Mitchell, with consent of her father William Mitchell as her curator and administrator-in-law, appellant, being dissatisfied with an award of the Sheriff-Substitute at Airdrie ( B. P. Lee), in an arbitration under the Workmen's Compensation Act 1907 (6 Edw. VII, cap. 58), brought by the appellant to recover compensation of £150 in respect of the death of her grandfather against the Scottish Iron and Steel Company, Limited, respondents, appealed by Stated Case.

The Case stated—“The following facts were admitted or proved:—1. That the pursuer and appellant is the granddaughter of the deceased James Cumaskey, who died at the Alexandra Hospital, Coatbridge, on 6th April 1919 of personal injuries by accident sustained on 21st March 1919, and arising out of and in the course of his employment as a sawman with the defenders and respondents in their Phoenix Iron Works, Coatbridge. 2. That it is agreed between the parties that the earnings of the said James Cumaskey during the three years next preceding the said injury amounted to £237, 7s. 1d., and during the year immediately preceding the said injury amounted to £98, 0s. 10d. 3. That the pursuer and appellant is an able-bodied girl, eighteen years of age, and was formerly employed by the Weldless Chain Company with weekly earnings of 22s. 6d. 4. That while so employed the pursuer and appellant resided with her parents and gave her whole earnings to them, being supplied by them with food, clothing, and weekly pocket money. 5. That in March 1918 the pursuer and appellant having lost said employment, it was arranged between her mother, who is a daughter of the said James Cumaskey, and the said James Cumaskey that the pursuer and appellant should act as the said James Cumaskey's housekeeper, receiving in consideration of said service her food and clothing and weekly pocket money, all as formerly provided by the pursuer and appellant's parents. 6. That under said arrangement the pursuer and appellant acted as housekeeper to the said James Cumaskey from March 1918 to 21st March 1919. 7. That during said period the pursuer and appellant continued to reside in

Page: 163↓

her father's house, though absent from 5.30 a.m. to 6 p.m. daily at her household duties in her grandfather's house. 8. That apart from said pocket money, amounting to 2s. 6d. or 3s. weekly, the pursuer and appellant received no money wage from her said grandfather. And 9. That the pursuer and appellant, and her mother, estimate the value of the food, clothing, and pocket money supplied by the said James Cumaskey at 20s. or 22s. 6d. weekly.

“On these facts I found further in fact and in law that on 21st March 1919, the date on which the said James Cumaskey sustained the injury by accident of which he subsequently died, the pursuer and appellant was not a dependant upon his earnings within the meaning of the Workmen's Compensation Act 1906. I therefore found that the defenders and respondents were not liable in compensation to the pursuer and appellant, and refused the crave of the pursuer and appellant's minute, and found the pursuer and appellant liable to the defenders and respondents in expenses.”

The question of law was—“Whether on the facts admitted or proved I was entitled to hold that the pursuer and appellant was not a dependant upon the earnings of the deceased James Cumaskey, her grandfather, within the meaning of the Workmen's Compensation Act 1906?”

The note of the Sheriff-Substitute appended to his award was—“The pursuer's grandfather James Cumaskey died on 6th April 1919 of injuries sustained while working in the defenders' employment. If he left dependants within the meaning of the Workmen's Compensation Act it is not disputed that the defenders are liable in compensation.

The pursuer, an able-bodied girl of eighteen, is Cumaskey's granddaughter. She was employed in one of the public works with weekly earnings of 22s. 6d., but lost her employment in March 1918 for some reason which has not been stated. She is probably right in saying that at that time she could easily have obtained other work in some of the munition factories. Her grandfather, however, had recently lost his wife and needed some-one to look after his house. He was then over seventy years old and not earning enough to hire a housekeeper at the current high wages, and in all probability as he lived alone in a one-roomed house there was not enough work to make such an arrangement worth while. Accordingly he suggested to his daughter, the pursuer's mother, that she should allow the pursuer to keep his house and do his house work for him. Up to this time the pursuer had lived in family with her parents, giving them all her earnings, and getting from them her board and clothing and some pocket money. The mother agreed to Cumaskey's proposal on his undertaking to feed and clothe the girl and give her her pocket money as formerly, and she estimates that to implement this undertaking would cost the old man as much as 22s. 6d., the weekly sum which the pursuer's labour had hitherto commanded in the open market. Under this arrangement the pursuer acted as her grandfather's housekeeper for a year to the date of the accident which proved fatal, working in his house all day but returning to her father's house each evening for the night.

These being the essential facts, I am prepared to hold both in fact and in law that the pursuer was not dependent on Cumaskey's earnings at the time of his death. Her relation to her grandfather was, I think, under a contract of service, the terms of which enabled her to maintain herself except to the small extent to which she remained dependent on her father for bed and lodging.

It has been held both in Scotland and England that a workman's able-bodied daughter who remains at home to keep her father's house, getting from him board, lodging, and clothing but no wages, is not a servant earning remuneration in kind and dependent on her own earnings, but is in point of fact and within the meaning of the Workmen's Compensation Act wholly dependent on the earnings of her father— Moyes v. W. Dickson, Limited, 1905, 7 F. 386, 42 S.L.R. 319, and Simms v. Lilleshall Company, Limited, [1917] 2 K.B. 386. In such circumstances it is irrelevant to inquire whether the daughter could have supported herself by her own earnings elsewhere ( per Lord Ardwall in Moyes, supra), but there seems no reason to doubt that it is relevant to inquire whether the daughter did in fact put herself by contract into the position of being self-supporting in her father's house. A daughter who becomes her father's ordinary hired servant can be in no different position from a stranger serving under the same contract. Such a case is unlikely to be of frequent occurrence, but where the workman is less nearly related to the claimant, and there is no reciprocal obligation to support each other, the probability would seem to be rather the other way. In the present case the pursuer continued to live with her father, and to the extent to which her earnings as her grandfather's housekeeper were insufficient to maintain her she continued to be dependent on the earnings of her father. That there was a contract made, not by the pursuer but by her parents, is admitted, and its effect was not only to fix the remuneration for services rendered, but to limit to that remuneration the grandfather's liability for the pursuer's maintenance. In case of the pursuer's illness or other incapacity it would have fallen to her father, not to her grandfather, to maintain her, and similarly if the grandfather had ceased work or become incapacitated her contract would have been broken, and she would have had to seek other employment or become a charge on her father. The pursuer was dependent on her grandfather's earnings only in the sense that it was from these earnings that she got the remuneration for her services. Her real dependence was in fact on her own earnings and on her father, and it was from these two sources that she was maintained during the whole period for which she acted as her grandfather's housekeeper. In my opinion therefore the pursuer was in no part dependent on her grandfather's earnings within the meaning of the Workmen's Compensation Act, and her claim for compensation

Page: 164↓

under the Act accordingly falls to be repelled.”

Argued for the appellant—The appellant was partly dependent upon her grandfather and partly dependent on her father. She was a member of the grandfather's family in the sense of section 13 of the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58). A girl who gave up her work and engaged in domestic work in her father's house in return for food, shelter, clothing, and pocket money was a dependant of her father— Moyes v. William Dixon, Limited, 1905, 7 F. 386, per Lord M'Laren at p. 388, and Lord Ardwall at p. 389, 42 S.L.R. 319. Here the appellant went to her grandfather's house simply because she was his granddaughter, and the result was that she obtained in part from her grandfather what she had formerly received as a dependant from her father. The facts did not warrant the finding that there was a contract of service with her grandfather, for there was no agreed upon wage. She could not have obtained compensation if she had sustained injury by accident arising out of and in the course of her work with her grandfather, nor did she require to be insured. It was just the ordinary case of one member of the family keeping house for another. Simms v. Lilleshall Company, Limited, [1917] 2 K.B. 368, per Cozens-Hardy, M.R., at p. 370, and Bankes, L.J., at p. 371, was referred to.

Argued for the respondents—The Sheriff-Substitute was right. If the services rendered to the grandfather were exactly commensurate in value with the return he made to the appellant there would have been no dependency— Main Colliery Company v. Davies, [1900] AC 358. The appellant in that case would have sustained no loss owing to her grandfather's death. Dependency was a question of fact, and the facts in the present case justified the arbitrator's finding. The mere fact that the grandfather's wages were the source from which he obtained the means to provide the appellant with food, &c., was immaterial. A son, e.g., acting as holder-on for his father, a rivetter, and paid by the father out of his wages, was not a dependant. The grandfather would have been bound to remunerate the appellant though he was not earning wages. If he did not the appellant could have left him. No doubt the remuneration given by the grandfather was in kind, but it was definite, and could have been sufficiently ascertained to have enabled the appellant to sue him for it.

At advising—