United Kingdom House of Lords Decisions

LORD JUSTICE-CLERK (Wheatley).—The Lord Ordinary held that the facts were in essence similar to the facts in Darling v. Gray (1892) 19 R. (H.L.) 31, and that since that decision was binding on him he had no option but to refuse the pursuer's Minute of Amendment. If he was correct on the point of similarity, then that decision is equally binding on this Court. Pursuer's counsel recognised this, but sought in various ways to distinguish the situation here from that which prevailed in Darling v. Gray, I have had the advantage of reading the opinions of your Lordships and I agree that the distinction cannot be made. The reclaiming motion must accordingly fail.

I would only add that I, too, appreciate the doubts and misgivings which nowadays attach to the effect of that decision and the injustices which may follow from it. If these are well-founded the remedy lies not in the efforts of this Court to find a notional distinction where no real distinction lies, but with a higher authority, be that Parliament or the House of Lords with their current power to overrule previous decisions of the House.

LORD KISSEN .—The original pursuer in this action for reparation for personal injury against the defenders, his former employers, and based on their fault, died while the action was pending. His widow, as his executrix-dative, was thereafter sisted as pursuer in place of her deceased husband and presented a minute of amendment, in terms of which she sought damages not only as the executrix-dative but also individually as the widow of the deceased. The basis of her claim, as an individual, was that the deceased had died as the result of the accident on which the original pursuer's action had been founded. As executrix she sues for solatium and wage loss to the date of death and a sum as compensation for the shortening of life. As widow she sues for solatium and loss of support. The minute was answered by the defenders and a motion was made on behalf of the pursuer to allow the Record to be amended in terms of the adjusted minute and answers. The Lord Ordinary heard the motion on the motion roll and refused the motion as being incompetent. The pursuer has reclaimed against that decision. The ground for the refusal by the Lord Ordinary was that he was bound by the decision of the House of Lords in Darling v. Gray & Sons 19 R. (H.L.) 31 which is more fully reported sub nomine Wood v. Gray & Sons [1892] AC 576. The latter report, unlike the former, contains the arguments of counsel and the speech of Lord Field.

The circumstances in Darling v. Gray were that a workman, who had raised an action for reparation for personal injury against his employers based on their fault, died while the action was pending and his mother, as his executrix, was sisted as pursuer in his place. While this action was pending the mother, as an individual, raised a second action against the same defenders for solatiumand damages for the death of her said son which, she averred, was due to the same injury. The House of Lords, affirming the Second Division, held that the second action was incompetent.

It is obvious, from what I have said, that the only difference between the circumstances of the present action and those of Darling v. Gray is that in the latter case a second action was raised whereas in the present case the same result was sought by a minute of amendment. Junior counsel for the reclaimer, in a submission which the reclaimer's senior counsel did not advance, argued that this difference distinguished Darling v. Gray from the present case so that Darling v. Gray was not binding on this Court in the circumstances of the present case. I do not think that this procedural difference affects the position. The fact is that in Darling v. Gray the pursuer had asked that her second action should be tried before the same judge and jury at the same time as her first action. As the law then stood, she could not amend her original action to include the basis of her second action unless by consent of both parties but had to raise a supplementary action. The procedural position has altered since an Act of Sederunt of 1907 and a minute of amendment, as in this case, has the same purpose and achieves the same result as the former supplementary action, as in Darling v. Gray . (See Maclaren's "Court of Session Practice" pages 314 and 452.) The result is that so far as this submission on competency is concerned the material facts in the present case are the same as the material facts in Darling v. Gray . It follows that this Court is bound by the judgment of the House of Lords in Darling v. Gray unless there is some other reason why Darling v. Gray should not be followed by this Court.

The other reason advanced on behalf of the reclaimers for disregarding Darling v. Gray as authoritative was that developments of the law of Scotland in cases since 1892 have so undermined the ratio of Darling v. Gray that it is no longer authoritative. This was the general proposition which was said to follow from three particular propositions. The first of these was that, as the law has been developed since 1892, the claims by an executor of a deceased and the claims of the deceased's relatives depend on different iniuriae and not, as Lord Watson must have thought in 1892, on the same iniuria. The second proposition was that if two rights of action did arise from the same iniuria in the present case, there have been reported cases where two actions arising from the same iniuria have been held to be competent. The final proposition was that if the ratio of Darling v. Gray was that expressed by Lord Field, namely, the application of the maxim "nemo debet bis vexari pro una et eadem causa," that maxim does not apply in the present case because there would be no overlapping of damages in the present case.

Support for these propositions was sought by taking dicta from speeches and opinions in later cases, where the points at issue were very different, or by founding on decisions in the Court of Session where Judges narrowed the effects of Darling v. Gray in cases which could be distinguished on the material facts. The short answer to this argument, in its general or in its particular forms, is that it was common ground that, in all the cases which were quoted in support, it was not suggested by any Judge that the decision in Darling v. Gray was not authoritative in any case where the facts were the same. Indeed it was common ground that this decision, when mentioned in other cases, was always accepted as authoritative although it was sometimes criticised for the anomalies resulting therefrom and sometimes applied narrowly. There was, for example, no criticism of the soundness of Darling v. Gray in the speeches in the House of Lords in Stewart v. L.M.S. Rly 1943 S.C. (H.L.) 19 when that case was mentioned. In these circumstances it seems to me to be impossible to say that the case of Darling v. Gray is no longer a binding authority in a case where the material facts are the same, as in this case.

Although that short answer is, in my opinion, sufficient to dispose of the submission that Darling v. Gray is no longer authoritative I think that I should make some observations on some of the arguments which were advanced by the reclaimer's counsel. I do not propose to refer to all of the many cases which were discussed by counsel but will confine my decisions to the few which I think had some relevance to the points at issue.

There was some controversy about the ratio of Darling v. Gray, as expressed in the speech of Lord Watson with whom the others, apart from Lord Field, expressly concurred. It was suggested by reclaimer's counsel, in the first particular submission which I have mentioned, that Lord Watson's speech in Darling v. Gray was based on the fact that the claims of the mother in that case, as executrix and as mother, arose from the same iniuria, that subsequent cases have made it clear that such claims arise from separate iniuriae and that, accordingly, the ratio in Darling being based on one claim only being competent from one iniuria was no longer operative. I am not satisfied that this was the ratio. It is not easy to find the ratio and different views have been expressed at different times. (See, for example, Green's Encyclopaedia Vol. 12 page 503 and the cases referred to in the footnote on page 15 of the report by the Scottish Law Commission to which the Lord Ordinary referred.) My own view is that Lord Watson having referred to the "arbitrary exception from the general law" which allowed claims by relatives of the deceased and to the undesirability of extending this type of action decided, in the absence of any precedent, that there should be no extension for what has been described as this "anomalous" type of action. That follows, I think, from his references on pages 31 and 32 of the report in 19 R. (H.L.) and on page 581 of the report in [1892] A.C. to Eisten v. N.B. Railway Co. 8 M. 980 and to his own views in Clarke v. Carfin Coal Co. [1891] A.C. at page 418 (18 R. (H.L.) 63). He was saying that the rights of relatives to sue for death could not be extended to cover the situation where an action at the instance of an executor was pending. If, as I think, that is the ratio of Lord Watson's speech in Darling v. Gray, that is a complete answer to the propositions advanced on behalf of the reclaimer.

Even if the ratio of Darling v. Gray is as the reclaimer's counsel maintained, I am not satisfied that the claims arose from two separate iniuriae. The basis of this submission was the reference in various cases, such as Stewart v. L.M.S. Rly 1943 S.C. (H.L.) 19 at page 25 and Mackay v. Scottish Airways Ltd 1948 S.C. 254 at 264, to the claims of relatives of a deceased being independent or non-derivative. That description of the relatives' claims was in a different context. It seems to me that reclaimer's counsel have failed to distinguish between the rights of relatives and the iniuria or legal wrong which might be the basis of these rights in certain circumstances. There cannot, in my opinion, be two separate iniuriae when the relatives might have no claims at all on the deceased's death, as was the case, for example in Mackay supra.

On the second particular proposition mentioned above, which I had some difficulty in understanding, it was maintained that the case of Smith v. Stewart 1961 S.C. 91 and Cole Hamilton v. Boyd 1963 S.C. (H.L.) 12 supported it. I can find no support in these cases for the view that Darling v. Gray is no longer authoritative even on the assumption that the ratio of Darling v. Gray was as suggested by the reclaimer's counsel. So far as the three recent cases mentioned by the Lord Ordinary are concerned and which were said by reclaimer's counsel to show also that Darling v. Gray is no longer authoritative, I only say that this view is incorrect. Indeed, in these cases the authority of Darling v. Gray for a case which is similar on material facts is accepted, although different views were expressed on the ratio of that case.

If, contrary to my view, the ratio is that stated by Lord Field it seems to me that the ratio must still apply in the identical circumstances of this case. As in Darling v. Gray there would, if the amendment were allowed, be overlapping of the separate claims for solatium. The claim for compensation for shortening of life is a further feature against the appellants.

I agree that the reclaiming motion should be refused.

I cannot leave this case without expressing the hope that some urgent action will be taken on the Report by the Scottish Law Commission to which I have referred. The law relating to damages for injury causing death is in a most unsatisfactory position. It has many anomalies and it causes unnecessary litigation and difficulty in addition to hardships on some unfortunate victims of the anomalies.

LORD FRASER .—This action was raised by the late Robert Dick, who claimed damages for patrimonial loss and solatium for injuries sustained by him in an accident which he said had been caused by the fault of the defenders. While the action was still in dependence Mr Dick died. His widow, who has been confirmed as executrix dative to his estate, has been sisted as a party pursuer and she now seeks to amend the Record in order to claim damages from the defenders both as executrix dative and as an individual. The Lord Ordinary refused to allow the amendment on the ground that it was incompetent. The Lord Ordinary held that the point was precisely covered by the decision of the House of Lords in Darling v. Gray & Sons (1892) 19 R. (H.L.) 31. He held that the effect of that decision was that, when a deceased has initiated a claim for damages for patrimonial loss and solatiumwhich is taken up by his executrix, his dependants' right of action is excluded. The argument on behalf of the pursuer was directed to attempting to distinguish Darling on various grounds.

The first distinction that was suggested was that in Darling the dependants' action (in that case at the insistence of the deceased man's mother) was a separate action from the one originally raised by the deceased and carried on by his executrix, so that there were two actions involved, whereas in the present case the pursuer seeks to combine her claim as executrix and her claim as an individual in the one action. It was suggested that the ratio decidendi of Darling was that the defender could not be sued twice over for the one wrong, in accordance with the maxim nemo debet bis vexari pro una et eadem causa. This view of the ratio receives some support from the speech in the House of Lords by Lord Field, which does not appear in the report in 19 R., but is to be found in a fuller report in [1892] AC 576 where the case is reported under the name of Wood v. Gray & Sons .Some support is also to be found, at least on a first view, in one sentence of Lord Watson's speech in the report in 19 R. (H.L.) at page 32 as follows:—

"There is not a single instance in which the court has allowed two actions to be brought in respect of the same negligent act leading to the injury and death of one person."

(My italics.) That appears to have been accepted as the ratioby some judges in subsequent cases, for example Whitehead v. Blaik 20 R. 1045 by Lord M'Laren at 1049 and Mill v. Dundas 1919 2 S.L.T. 65 by Lord Anderson at 67, and by authors of repute—see Encyclopaedia of the Laws of Scotland volume 12 paragraph 1089 in an article on Reparation by the late Sheriff Hector M'Kechnie, and Glegg on Reparation (4th ed.) by the late Sheriff J. L. Duncan at page 85. If that is the true ratio of Darling, the decision has been rendered out of date by subsequent alterations in the Rules of Court which have greatly increased the powers of the Court to allow amendment and now enable several pursuers to be combined in one action without any difficulty so far as mere procedure is concerned. But in my opinion the decision in Darling did not proceed upon merely procedural grounds but was based on principle. For one thing it appears from the report of the case in the Court of Session in 18 R. 1164 that the proposed second action was to be tried before the same jury as the first action, so that the two actions would virtually have been conjoined. In the second place the speech of Lord Watson seems to me to proceed quite clearly upon grounds of substantial principle. Lord Watson referred to the rule of Scots Law which permits an action of damages for the death of a person by certain of his near relatives, the rule which is generally associated with the decision in Eisten v. The North British Railway Company (1870) 8 M. 980. Lord Watson went on as follows:—

"To my mind the only relevant question in the present case is, has the rule ever been carried so far as to recognise the competency of an action at the instance of relatives, where an action in respect of the same injuria has been raised by the deceased during his lifetime, and is still a depending litigation?"

He answered that question in the negative and held therefore that the action by the mother as an individual was incompetent. Accordingly in my opinion it is hopeless to suggest that the ratio of Darling is to be found in the maxim nemo debet bis vexari.

A further suggestion was made to the effect that the reason for the decision in Darling was that in 1892 there was a real risk that the damages awarded to an injured person, or his executor, might overlap the damages that could have been awarded to his relatives after his death, with the result that the defender might be liable to some extent for the same damages twice over. This suggestion was based mainly on the explanation of the basis for awarding damages to a deceased man's estate set out in M'Master v. Caledonian Railway Company (1885) 13 R. 252 especially in the opinion of Lord Lee at page 257. The difficulty of keeping the two claims apart was also referred to in Neilson v. Roger (1853) 16 D. 325 especially by Lord Wood at 330. It was said that the danger of overlapping or duplicated damages which was feared in 1892 had now been removed by subsequent decisions especially by Sommerville v. The National Coal Board 1963 S.C. 666. In my opinion this argument also is not well founded. Lord Watson's opinion does not bear to proceed upon the ground that there was a risk of overlapping damages. That matter may have been in his mind at the time, but that is pure speculation. In any event I am not entirely satisfied that the risk has been eliminated even by subsequent decisions. I accordingly reject this argument.

The more fundamental ground which was suggested by the pursuer's counsel for distinguishing Darling was to the effect that the law has developed since the date of that decision and now recognises that the claim of an injured person, which may transmit to his executor in the event of his death while the action is depending, is distinct from any claims by his relatives which arise on his death. The reason is that the two claims are derived from different injuries. There is therefore no reason why both claims should not be pursued, at least if they can be combined in one action. So ran the argument. For this part of the argument counsel for the pursuer referred to the last paragraph in Lord Watson's speech and to the sentence that I have already quoted where Lord Watson referred to an action at the instance of relatives, and "an action in respect of the same injuria"raised by the deceased. It was said that the injuria to the relatives was not the same as the injuria to the injured (and subsequently deceased) man himself, and that, although the true legal position may not have been appreciated in 1892, subsequent decisions, including some in the House of Lords, had materially developed the law since then. The theory of the legal position which prevailed in 1892 may be indicated in this reference by Lord Watson to the argument submitted in Darling where (at page 32):—

"The appellant maintained that whenever an individual is negligently injured there arises to each person standing towards him in the relation I have explained an independent right of action contingent only upon his death sooner or later, and its being traceable to the injury he received."

Mr Cameron for the pursuer expressly disclaimed any such argument in the present case. On the contrary he said that when an individual is negligently injured there immediately arises a claim by the injured person himself, but no claim by any relative can arise until the subsequent and separate event of the injured person's death. In support of that proposition Mr Cameron referred to Stewart v. LMS Railway 1943 S.C. (H.L.) 19, and the speech of the Lord Chancellor Viscount Simon at page 25 where he explained that the claim by the injured person "is entirely distinct from the claim of relatives for a solatium,which is a claim for the benefit of relatives, not the benefit of the estate, and arises because of the death." (My italics.) Similarly in Gray v. North British Steel Foundry Ltd. 1969 S.C. 231 the Lord President explained that the independent action by the relatives is for the injury done to them on the death of the injured man. Mr Cameron submitted therefore that, as there were separate injuriae, so there could be separate actions without contravening the principle expressed by Lord Watson in Darling. In my opinion this argument, attractive as it seems at first sight, is not well founded. It is I think based upon a mis-translation of the Latin word injuria. That word should not be translated into the English word "injury" but into the English words "wrongful act." There is never more than one injuria, or wrongful act. In this case it was, according to the averments, the lowering of a door of the wagon on which the deceased was working so as to strike his head. But no claim arises until the injuria is followed by damnum, meaning loss. The injured man himself suffered immediate damnum when his head was struck, and as that damnum coincided with the injuriahe had an immediate claim against the wrongdoer. His relatives however, suffered no damnum or loss until his death which, on the assumption that it was caused by the accident, was attributable to the injuria committed by the wrongdoer. The position therefore is that there was, in this case as in every case, only one injuriaalthough damnum might affect several people, the injured man himself immediately, and his relatives later on if he died because of the accident. If that analysis is correct, it follows that an action by the relatives would be in respect of the same injuria as the action by the deceased man, and would be contrary to the principle stated by Lord Watson.

That is, in my opinion, as far as one can usefully go in searching for a principle or theory underlying this branch of the law. It is notorious that no acceptable theory to justify actions by near relatives for the death of a person has ever been formulated, and in M'Kay v. Scottish Airways 1948 S.C. 254 Lord President Cooper at page 263 expressed the view that the quest for principle in this region of the law "is a forlorn hope." That quest has perhaps been made more difficult by some recent decisions where the practical effect of the decision in Darling has been somewhat limited. I refer to Bruce and Another v. Alexander Stephen & Sons Limited 1957 S.L.T. 78, M'Ghie v. British Transport Commission 1964 S.L.T. 25 and Gray v. North British Steel Foundry Ltd. 1969 S.C. 231. These decisions necessarily accepted the decision in Darling as binding and distinguished it on grounds which may or may not be satisfactory, but which do not apply in the present case. They show how judges, who felt reluctantly compelled to accept Darling, were anxious to distinguish it whenever possible. I share their anxiety and would gladly have followed their example if I could. But in my opinion the decision in Darling cannot be distinguished from the present case. Accordingly I am of opinion, with regret, that this reclaiming motion must be refused.

I would add an expression of hope that the proposal of the Scottish Law Commission in their Report No. 31 for reforming this branch of the law will receive the attention of Parliament at an early date.

LORD LEECHMAN —This is a reclaiming motion against an interlocutor of Lord Robertson refusing a minute of amendment for the pursuer in an action for damages for injury and loss brought at the instance of the injured man, but in whose room and place on his subsequent death his widow had been sisted as his executrix dative qua relict. The widow in said Minute of Amendment sought so to amend the Closed Record in the action as to enable her to claim not only in her capacity as executrix foresaid, but also in her capacity as an individual founding on her deceased husband's death as a consequence of his original injury. The case was heard by the Lord Ordinary on the motion roll, and founding on the well known case of Darling v. Gray 1892 19 R. (H.L.) 31 which he considered to be directly in point, he refused as incompetent the Minute proposed.

At the outset and as presented by junior counsel for the pursuer and reclaimer, the argument was that though the facts of the case were for all practical purposes the same as in Darling v. Gray, that decision was not in point, because what was proposed there was a second action, whereas here what was proposed was one action only. And it was sought to justify such an interpretation of the judgment, thus. It appeared from the report of the case, under the name Wood v. Gray as reported in [1892] A.C. at page 576, that the parties' arguments were around the question whether or not, if the two actions proceeded, there would be an overlap in damages. The case of M'Master v. Caledonian Rly. Co. 1885 13 R. 252, quoted in argument, seemed to indicate that at that time an executor carrying on a deceased's action could recover damages in respect of a period after the deceased's death. What Lord Watson was saying (in Darling) was that in such circumstances a second action could not be allowed as a matter of policy. Because there was no instance in practice of such a second action (explicable, if the law was as appeared from M'Master) was however, no basis for pronouncing it incompetent. The decision had no ratio, or if it had it was a procedural one.

It having become plain, in the course of the reply, that what the present pursuer was seeking to do was procedurally no different from what could have been done, and indeed was sought to be done in Darling viz. conjoin the two actions; and that in any event what was being put forward against the pursuer was that the case of Darling decided, not simply procedural matters, but matters of principle as follows, (1) that what was an anomaly of the law, viz. the action at the instance of relatives, should not be extended, (2) that one wrong should not result in two separate and unrelated claims for damages, and (3) (implicitly) that if two such claims were admitted there would be serious risk of overlapping of damages leading to double distress, senior counsel remodelled the argument for the pursuer and reclaimer.

He submitted that the case of Darling v. Gray could be distinguished on three grounds. The first of these was that since 1892, as the law had developed, claims by a deceased person insisted in by his executor and claims of a relative arising on his death had been recognised as being dependent upon different injuriae. The executor of a deceased founded on the original negligent act. The relative's right of action only arose when that caused death, but it was an independent right of action based upon injury to the relative—"as if the accident had happened to (the relative's) own (person)"—see L. P. Dunedin in Davidson v. Sprengel 1909 S.C. 566 at p. 570. To the same effect were dicta found in Stewart v. L.M.S. Rly 1943 S.C. (H.L.) 19, per Lord Chancellor at p. 27, and Lord Thankerton at p. 37; in M'Kay v. Scottish Airways 1948 S.C. 254 per L.P. Cooper at p. 264; and in Gray v. North British Steel Foundry Ltd. 1969 S.C. 231 per L. P. Clyde at p. 241. But the question whether and how far the right of action at the instance of a relative is, or has become recognised to be one independent of the right in the deceased's executor, really avoids the issue, which is whether they do or do not proceed upon the same injuria. There can be no question but that Lord Watson was using that word in its strictly legal sense of "wrong" or "wrongful act." So far as the relative of a deceased person is concerned the wrong is not the death. It is still the original wrong. The right of action in the relative only arises on death, because for the first tune so far as the relative is concerned injuria and damnum have concurred. There would thus appear to be no substance in the first ground for saying that the case of Darling v. Gray could be distinguished from the present case.

The second ground upon which it was sought to draw such a distinction was that, assuming the two rights arose out of the same injuriathere were now cases in the books of the two rights being prosecuted at one and the same time, the reference being to the cases of M'Ghie v. British Transport Commission 1964 S.L.T. 25, and Gray v. North British Steel Foundry Ltd. 1969 S.C. 231, both referred to by the Lord Ordinary. They were not instances of the situation in Darling v. Gray where action taken before death and subsequently carried on by the deceased's executor was held to bar a claim by relatives. What was done and was held to be competent in both M'Ghie and Graysupra was the raising after death of a relative's claim and the raising at the same time of a claim by the executor for pecuniary loss incurred by the deceased's estate. It was argued that in 1892 Lord Watson could not have had in contemplation that an executor might successfully recover after death the patrimonial loss which a deceased had incurred through having suffered an actionable wrong before death. Again there had been an advance in the law! And so far as I could understand the argument from there, it was that to allow, on the one hand, an action raised by a deceased and carried on by his executor to bar an action by the deceased's relatives, and yet to permit, on the other hand, an action by an executor for at least part of the damages which a deceased might have sought in life, to run along side an action by the deceased's relatives was so illogical as to cast more than doubt upon the continuing validity of the older law, that is as exemplified by the decision in Darling v. Gray . The simple answer to that is that there is a fundamental distinction between an action raised in a deceased's lifetime and sought to be carried on thereafter and one raised for the first time by the deceased's executor. Any advance on the law which there may have been did not strike at the ratio of Darling v. Gray which was that in the situation there a relative's claim was completely unknown to the law and therefore incompetent. Nor is it without significance that in both M'Ghie and Gray supra the Court came to its decisions without in any way questioning the continuing validity of Darling v. Gray . Accordingly the second ground put forward for distinguishing Darling from the present case is also shown to be without substance.

That leaves only the third ground that the ratio in Darling was expressed by Lord Field (see the report at [1892] AC 576) as being the maxim "nemo debet bis vexari pro una et eadem causa", and that it was plain that the two claims sought to be put forward by the deceased's widow would not result in any overlap of damages. The parties were at issue as to whether or not there would be such an overlap. It is not necessary to go into that matter however, because quite clearly the decision of the House in Darling as given by Lord Watson was based not on the maxim quoted, but, as already explained, upon the ratio that standing an action raised by a deceased in his lifetime and still continuing, a further action by the deceased's relatives was unknown to the law and was therefore incompetent. The third and last ground upon which it was sought to distinguish the case of Darling from the present, thus goes also.

I only add that it is plain from a reading of the decision in Darling v. Gray that it was not concerned with mere matters of procedure, but with matters of substance. In the result the pursuer is left with such a decision, of continuing validity and binding effect, which completely covers her own situation and renders her move now to claim damages in her individual capacity an incompetent one.

I would refuse the appeal.

The pursuer appealed to the House of Lords, and the appeal was heard on 6th, 7th and 8th October 1975.

At delivering judgment on 26th November 1975,—

LORD WILBERFORCE .—My Lords, on 7 July 1969 Robert Dick, employed by the respondents as a labourer, was seriously injured when a door at the back of the wagon on which he was working came down and struck him on his head. On 31 May 1972 he raised an action against the respondents claiming damages on the ground that his injuries had been brought about by the negligence of a fellow employee. He claimed £15,000 under the heading of reparation for loss, injury and damage sustained in the accident. On 22 March 1973, the action still being depending, Robert Dick died and by Interlocutor dated 24 August 1973 his widow, Mrs Laura Dick, the appellant, as executrix-dative of the deceased, was sisted as party pursuer in the action. No question arises as to the right of the appellant to continue the action in her capacity as executrix. The present appeal arises out of a Minute of Amendment lodged by the appellant by virtue of which she sought to claim damages, not only as executrix of the deceased, but also as an individual. As executrix she sought damages of £20,000 for loss, injury and damage suffered by the deceased in respect of solatium, patrimonial loss and shortening of life. As an individual, she seeks to claim £15,000 for loss, injury and damage which includes solatium and loss of support. It is not necessary to understand the relation of these two sums or the difference between the £20,000 and the £15,000 claimed by Mr Dick.

The question in the appeal is whether the widow's claim in her own right is incompetent: that it is so has been held by the Lord Ordinary and by the Second Division of the Court of Session. In reaching this conclusion both courts considered that they were bound by the decision of this House in Darling v. Gray & Sons 19 R. (H.L.) 31 reported sub nomine Wood v. Gray & Sons [1892] AC 576. It is clear, and the contrary has not been argued, that the present case is indistinguishable from Darling v. Gray and that the courts below were correct in following the latter. This House is now asked to review and overrule that case which has stood for over 80 years.

My Lords, in approaching this question I start from two propositions as to the law of Scotland which I think to be clearly established.

First. When, once an action for damages for personal injury has been raised in the courts, the pursuer dies while that action is depending, the right to continue with the action—including any claim for solatium—passes to his executor. (Neilson v. Rodger (1853) 16 D. 322), Stewart v. London Midland & Scottish Railway Co. 1943 S.C. (H.L.) 19.)

Second. The common law of Scotland gives, and has long given, to a limited class of relatives a right of action, in respect of the death of the deceased, for solatium and patrimonial loss. The solatium in such a case, as hardly needs stating, is for the grief and suffering of the relatives as a consequence of the death. And the patrimonial loss is calculated by reference to their loss of dependency on the basis of what they would have received after the date of death if the deceased had remained alive. This action, in Scotland, has arisen by judicial decision sometimes described as quasi-legislative in character. It is available only to the widow and a limited class of near relatives of the deceased and not, as under the statutory law of England, to dependents. (See Eisten v. North British Railway Company (1870) 8 Macph. 980).

It is perhaps for this reason that the action has been described as "anomalous", and it is certainly clear in my opinion that extension of the class of relatives who may sue cannot be made by judicial decision. No such extension is sought in the present case.

I add one other point which I think necessary for the understanding of the legal position. It is, I venture to think, established by authorities, which for the present purposes I take to be correct, that a relatives' action cannot be maintained unless and to the extent that, had the deceased been alive, an action could have been maintained by the deceased himself. Thus, if the deceased has contracted out of any claim (M'Kay v. Scottish Airways Ltd. 1948 S.C. 254) or has settled his claim, or if it has been adversely decided upon in his lifetime, or if he has been guilty of contributory negligence, the executor's claim is (though Lord Cooper found this difficult to understand (M'Kay's case, p. 264)) correspondingly barred or reduced. This circumstance has given rise to discussion whether the executor's claim is derivative or independent of the claim of the deceased himself. In fact, in one sense or another, it is both. It is derivative in the sense that its validity—or invalidity—may depend upon that of any claim which would have been open to the deceased. But it is independent in the sense that, given that the deceased could himself have maintained the action, the relatives' claim is for damages in their own right, i.e. for damages sustained by them. Yet even this requires qualification, since it is undoubted that the quantum of patrimonial loss for which the relatives may recover may be affected by the amount of damages recovered or recoverable by the deceased himself.

My Lords, this is a brief analysis which I should not venture to make were it not supported by the thorough examination of the law made by my noble and learned friend Lord Kilbrandon, which I have had the great benefit of considering. I have thought it necessary before I felt able to evaluate the reasons given in this House in 1892 for excluding the relatives' action in such a case as this, i.e., where there is pending an action commenced by the deceased. From what I have said, it appears that the exclusion has little to commend it in the interests of either theory or justice. A man has been injured by (assumedly) negligence of another: he suffers injuries and dies. Quite separate heads of damage have been sustained, on the one hand by the deceased himself, on the other by his relatives. The claim by the deceased arises upon the act of negligence followed by damage. The measure of damages, as regards loss of wages, is according to what he would lose had he lived until his death occurred by natural causes. The claim by his relatives arises upon the death, if that follows as the result of the injury; it may be by far the more substantial, yet, if Darling v. Gray is to be followed, it is to be excluded altogether by a decision taken by the deceased's executor—who may be and may represent quite different persons from the relatives. To allow each action to proceed, each for its own claim, seems to be elementary justice. And I cannot state the reasons for this better than in the words used by Lord Wood in 1853. Dealing with a possible case the converse of the present he said:

"There may be cases in which the two claims (supposing them to exist) would by the death centre in the same parties. And granting it were so, I desiderate any principle for holding that the one, which is a claim in right of the deceased, and was part of his or her estate, and may have been made the subject of an action for its vindication, and which in the general case passes to, and vests in, the personal representatives as such, should be superseded, and a vesting in them either prevented, or a divestiture produced, because another claim has arisen to the same parties upon an emerging fact, which is distinct from those on which the first is or could be founded, and which claim (of whatever it may be compounded) is not to any extent derived by succession from the deceased, but belongs to them in their own separate and independent right."

(Neilson v. Rodger 16 D. 325, 330). This right to sue must, if justice is to be done, be subject to two conditions: first that there be no duplication of damages awarded, second that procedurally means exist for having, whenever possible, both actions tried together. There is no difficulty at the present time as to the second condition and as to the first my noble and learned friend Lord Kilbrandon satisfies me that it can be met.

So I turn to consider the decision in Darling v. Gray & Sons . The rationes of decision are, as has often been observed, difficult to state with clarity. But I think that the following must be the arguments which appealed to the House. First it is said that the relatives' right is a peculiarity of Scottish law and ought not to be extended: Lord Watson quotes here from the opinion of Lord President Inglis in Eisten's case (8 Macph. 980, 984)—it was to be called "anomalous" by Lord Thankerton in Stewart v. London Midland and Scottish Railway Company 1943 S.C. (H.L.) 19 at p. 37. Lord Watson does not expand upon this point, but there cannot be much doubt that he had in mind that the action is an exception to the normal rule which disallows actions based on the death of a person, and an exception in favour of an arbitrary class of relatives. Such a description of the relatives' action, supported by such eminent judges, must be a just description and I would respectfully agree that, judically, we ought not to extend it, but then one must ask what is an extension? Certainly it would be an extension to allow the action to other relatives—it was just this kind of extension which was discountenanced eo nomine by Lord President Inglis in Eisten's case—but I find difficulty in seeing how to allow the action concomitantly with the executor's action is an extension at least unless the previous law had limited the relatives' action to the case where no executor's suit is pending. But the law had not done this, expressly or impliedly. Therefore I cannot, with great respect, see how to refuse to impose, for the first time, a limitation on the relatives' action can be an extension of the relatives' right. It must surely be for those who contend for a limitation upon a right of action granted by the law to justify the limitation. This brings me to the second argument which I think was powerful in this House: this is the absence of precedent. The fact has to be accepted but, in argument, it works both ways. There is an undoubted right of action: should it be allowed, or should it be barred, when there is pending action by the executor? I do not see why precedent should be required to support one answer but not the other. There being no precedent either way, the answer in my respectful opinion, should be sought in principle and in the interests of justice. I have already explained why to my mind the one does not exclude and the other calls for the allowance of the relatives' action.

The third possible ratio is indicated in the opinion of Lord Field as reported in the Appeal Cases—"ne bis in idem"which finds some echoes also in Lord Watson's speech. But I am unable to accept this. The juristic independence of the relatives' claim is too well established by authority in Scotland to support it.

Thus, to my mind, the decision does not rest upon any maintainable support. Should we now overrule it? It has, as I have said, stood for 80 years and we must have regard to that period. On the one side, against the decision, it is said that it has been rendered out of date by changes in the Rules of Court which have made it easier for claims by several pursuers to be contained in one action. This change may have taken place, but I cannot regard it as of itself entitling us to overrule Darling v. Gray, which decision was not based on procedural grounds. It is next claimed that subsequent decisions have been given which have recognised the possibility of concurrent actions in certain cases. (Bruce & Anor. v. Alexander Stephen & Sons Ltd. 1957 S.L.T. 78, M'Ghie v. British Transport Commission 1964 S.L.T. 25, Gray v. North British Steel Foundry Ltd. 1969 S.C. 231). These are Outer House decisions of first instance and however sound in themselves do not in my opinion make, or materially strengthen, the case for discarding Darling v. Gray .

On the other side, more importantly, in Stewart v. London Midland & Scottish Railway Co. 1943 S.C. (H.L.) 19 Darling v. Gray was cited in this House and was referred to in the opinions of their Lordships including significantly, Lord Thankerton and Lord Macmillan, without disapproval.

I have read the opinions with care and anxiety, for, if I thought that such eminent authorities had endorsed the case, my reluctance to discard it would become refusal. But I do not think that this is the conclusion. Stewart's case was concerned with a point quite different from the present, namely whether an executor can institute an action for damages for personal injuries when the deceased person he represents had not done so during his life. No occasion arose to consider whether Darling v. Gray was right or wrong on the issue whether the relatives' action was competent. Lord Watson's opinion was in fact, as I understand the matter, invoked on the transmissibility of the deceased's right of action. I should indeed have been much comforted had the opinions contained—though obiter—some criticisms of the earlier case, but the absence of it ought not to be taken for approval.

One other argument calls for mention. The respondents' counsel sought to find theoretical support for the decision in Darling v. Gray by reference to the doctrine of litis contestatio. The argument was that the moment that the injured person commences an action for damages, he transmutes or novates his claim in delict into one of a quasi-contractual nature and that by so doing he effectively excludes any action by his relatives in the event of his death. My Lords, I applaud the ingenuity of this argument, but ingenuity is all that it possesses. The theory of litis contestatio, as I understand it in Scots law, which has little in common with the Roman law but the Latinity, was invoked in order to support the transmissibility of a claim in delict to a man's executors—contrary to the so called maxim actio personalis moritur cum persona. (See Stewart v. London Midland & Scottish Railway Co. 1943 S.C. (H.L.) 19, 25, perViscount Simon L.C.). But to use a theory, created in order to preserve one right, so as to extinguish another which the deceased person has no interest to extinguish, appears to me, with respect, as an unappealing exercise. My noble and learned friend Lord Kilbrandon has dealt with the argument in a manner with which I entirely agree.

In conclusion I accept that there are other matters relating to claims for personal injuries by relatives of dependants which seem to call for re-examination, and which require legislative attention. But this particular issue stands by itself, can be dealt with by judicial decision, and needs to be so dealt with if justice is to be done to the present appellant. In my opinion we should declare Darling v. Gray to be no longer of authority and I would allow the appeal and reverse the Interlocutor appealed against.

VISCOUNT DILHORNE .—My Lords, I have had the advantage of reading the speeches of my noble and learned friends Lord Wilberforce and Lord Kilbrandon. I agree with what they say and that this appeal should be allowed.

LORD DIPLOCK .—My Lords, I have had the advantage of reading the speech of my noble and learned friend Lord Kilbrandon. I agree with it and I agree that this appeal should be allowed.

LORD KILBRANDON —My Lords, the late Mr Dick suffered injury at his work in consequence, according to averments which we are to accept pro veritate, of a negligent act by one of his fellow-workers, for which act the defenders, his employers, must answer. On 31st May 1972 he brought an action in the ordinary way against his employers, concluding for a sum of damages which may be broken down as follows. First, he claimed in respect of pain, shock and serious physical impairment; this may be classified under the head of pure solatium. Secondly, he averred that he had been off work from the date of the accident to the date of the pleading, that his wage had been £14 a week, that it was unlikely that he would ever recover, and that he had thus suffered a patrimonial loss. He quantified his total damages at £15,000; clearly he was claiming as for total or at any rate substantial wage loss over an indefinite future period.

On 22nd March 1973 Mr Dick died, and again at this stage it must be accepted that he died as a consequence of his injuries. He left a widow as his sole dependent.

In due course the widow, who is the appellant before this House, tabled an amendment to the pleadings in Mr Dick's action, which was then awaiting trial, no dilatory pleas having been stated by the defenders. The amendment proposed to delete the existing pursuer and to substitute Mrs Dick, not only as executrix-dative of her husband, but also as an individual. The conclusions were amended, so that Mrs Dick now sues for payment to her as executrix of £20,000, and to her as an individual of £15,000. The first conclusion is not challenged; I will only say that no explanation was furnished as to why the sum sued for was stated at £20,000. The executrix could recover no more than the damages for the personal injury and the amount of patrimonial loss suffered by Mr Dick up to his death, whereas Mr Dick had laid his claim under those heads, calculated upon a life of normal length, (for no claim was made for shortening it), at £15,000. As an individual, Mrs Dick claims solatium for her grief at her husband's death and for her loss of his companionship, together with damages for the patrimonial loss occasioned by her being left unsupported by her husband's wages. These are, in the ordinary case, normal and competent heads of a widow's claim. The last head, of course, is by far the heavier; moreover, should the present claim be found maintainable by the appellant, and should it succeed, it would exceed any sum which the appellant could recover, in her capacity of executrix, on behalf of her late husband's estate.

The respondents challenge the competence of such parts of the appellant's Minute of Amendment as maintain a claim by her in her personal capacity as dependent widow, as distinct from those parts directed to her right of action as executrix, that is, her right to ingather the assets which formed part of Mr Dick's estate. The ground of this challenge is a simple one, and, as the law of Scotland now stands, unassailable, in the Court of Session. It is, that when a person has brought an action of damages for personal injury, whether resting on pure solatium or patrimonial loss or both, then if he die after action brought by him, no dependent can thereafter institute the action of reparation, in respect of a claim for solatium or for patrimonial loss to that dependent, which would have been competent to that dependant had her action been raised upon claims in respect of her own loss arising from the death, but before the deceased himself had brought this action. Thus if Mr Dick had been killed instantly by the fault of the defenders or of one for whom they are responsible, or had he died later but before he had brought an action to indicate his rights emerging from the accident, Mrs Dick's claim which she makes in her amendment would have been perfectly competent; since Mr Dick survived to institute his action, it is not. The reason why I say this position was unassailable in the Court of Session is that the doctrine upon which it depends was declared to be part of the law of Scotland in Darling v. Gray & Sons (1892) 19 R. (H.L.) 31, better reported as Wood v. Gray & Sons [1892] AC 576. The argument before your Lordships was conducted upon the basis that if that case was correctly decided, this appeal cannot succeed; the questions therefore are, whether that case was rightly decided and, if it was not, whether your Lordships ought to overrule it under the powers which your Lordships declared this House to have in the Practice Direction reported at [1966] 1 W.L.R. 1234.

Before examining the rule of law which Darling v. Gray laid down, it is necessary to come to some conclusion about the legal basis and the scope of a claim by dependents which has certainly formed part of the civil law of Scotland at least since the day of Stair. "So, the life of any person being taken away, the damage of those who were entertained and maintained by his life, as his wife and children, may be repaired"; Institutions I. ix. 4. With the deepest respect towards those who have held the view that there is something unusual, anomalous, or difficult to categorise in the potential liability of a person to the dependants of those to whom he owed a direct duty of care—and this includes Lord President Inglis, Lord Watson, and Lord President Cooper—this view seems to be difficult to support either historically or in face of modern re-statements of the law. For example, speaking of Lord Watson's opinion in Clarke v. Carfin Coal Co. (1891) 18 R. (H.L.) 63, at p. 65, Professor Walker, in his recent work on Delict, Vol. II, p. 728, observes:

"It has been said that the title of any relative to sue in respect of death of another is an anomaly, not based on any precise legal principle, and that the decisions should not be extended by analogy. This seems unsound; historically, this action derives much from assythment, and something from the extended actio Aquiliae, though the classes of relatives entitled to pursue an assythment were wider; philosophically, the principle of ‘mutual obligation of support’ is a convenient indication of what relatives can reasonably be regarded as having had an interest infringed by the death of the deceased, and statute has now extended the class of relatives entitled to sue beyond these recognised when the action was novel."

It is, as Professor Walker suggests, not now necessary to rely either upon Scottish legal antiquities or upon remedies given in the law of Borne in order to support what is a commonplace ground of action in our courts. Of the modern statements of obligation in the delictual relationship I will select that of Lord Macmillan in Bourhill v. Young 1942 SC (HL) 78 at p. 88, [1943] AC 92 at p. 104:

"The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequences injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed".

The heresy which was corrected by Donoghue v. Stevenson 1932 SC (HL) 31, [1932] AC 562 and Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. [1964] AC 465 was that the fact that A is in contractual relationship with B (in the present case a contract of service) may go some way to negative the duty of care which at the same time he owes to C, a person "to whom injury may reasonably and probably be anticipated". The law now treats the employer as knowing that nearly all the men and many of the women he employs have dependants who are maintained out of the wages he pays, and that those dependants will suffer grief as well as patrimonial loss if he, by neglect of his duty of care, occasions his employees physical harm. Those dependants are therefore persons to whom he owes that duty.

It is no doubt in consideration of what degree of foresight may reasonably be demanded of a potential defender that the right to institute an action of damages by others than the actual victim of those acting on his behalf or on behalf of his estate has been confined to relatives. For example, a claim in respect of the loss of a servant, which in a special case could be financially grievous, has never been allowed: Reavis v. Clan Line Steamers 1925 SC 725. The common law of Scotland strictly limited those entitled to claim on the death of a relative to those with whom the deceased was in the relation of ascendant or descendant, because only in that relationship is there a reciprocal obligation of support—an obligation which is (as not in England) life-long in case of necessity: Greenhorn v. Addie (1855) 17 D. 860. Therefore among collaterals, where there is no such mutual obligation, the claim is not competent—Eisten v. North British Railway Co. (1870) 8 Macph. 980. This is not now the law of England. It seems probable that the Fatal Accidents Act 1846 (Lord Campbell's Act) was deliberately framed so as to introduce into England the common law of Scotland—see the observations by Sir Frederic Thesiger, as he then was, arguendo in Blake v. Midland Railway Co. (1852) 18 Q.B, 93 at p. 99. Collaterals, accordingly, were not by Lord Campbell's Act given the right to sue for loss of support. Parliamentary law reform, however, has gone faster for England than for Scotland; by the Fatal Accidents Act 1959 collaterals are included in the class.

But even in Scotland, the class of "dependants" is being gradually extended by statute. For example, adopted children come within the class by virtue of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 section 2(1). So also do to a limited extent illegitimate children, an obligation on a bastard to aliment his needy mother having been rejected in this House in Clarke v. Carfin Coal Co. (supra); see the statute just cited, also the Law Reform (Damages and Solatium) Act, 1962, section 2. Again the Court of Session having held, in Barrett v. North British Railway Co. (1899) 1 F. 1139, and in subsequent cases, that a mother could not sue for the death of a child while the father was still alive—the decisions are convincingly criticised in Walker on Delict, p. 87—the legislature stepped in and altered that rule by the above 1962 Act, section 1. I cite these instances mainly for the purpose of showing that when it is a question whether the class of persons entitled to sue in the kind of action we are considering should be enlarged, it has been the practice—rightly as I would say—that that question should be reserved to the legislature. See the speech of Lord Reid in M'Kendrick v. Sinclair 1972 SC (HL) 25 at p. 49. The question in this appeal, however, namely, whether there is or is not a sound rule of procedure by which relatives admittedly within the class entitled at common law should in certain circumstances be removed from that class, seems to be different in kind.

A considerable part of the arguments was devoted to the nature of the relatives' claim vis-à-vis that of the victim. The extreme position adopted for the appellant was that the two claims are entirely independent, so that no act by the victim, such as settling or abandoning or pursuing to judgment his own claim, or bringing an action in his life-time, could have any effect on the rights of his relatives. Nor could the prior indemnification by him of the defender, as by accepting a ticket condition; the cases of M'Kay v. Scottish Airways 1948 S.C. 254 and M'Namara v. Laird Line and Clan Line Steamers Ltd. 1948 S.C. 265 were wrongly decided. This position was defended by reference to such expressions of opinion as that of Lord President Dunedin in Davidson v. Sprengel 1909 S.C. 566, a case in which a father was suing for damages in respect of the loss of his son. At p. 570 the Lord President observed:

"Here the action is at the instance of the father himself; and it is to be noted that it is not a derivative action. I think that it is clear from what was said by Lord President Inglis in the case of Eisten, 8 Macph. 980, where he pointed out that this kind of action was not an action of assythment, although it had grown out of that action. It is really an independent action; and a good proof of that is that if it were a derivative action it would necessarily belong to the executors of the deceased and not to the relatives. So this is an independent action at the instance of the father for an injury done to the father himself."

It is clear from that opinion that the expression "derivative", when it is used in this context, is the equivalent of "representative", in the sense of an action brought in such circumstances as these by an executor or assignee. I have already tried to point out the juridical foundation for the claim by the relatives, and from the very statement of that foundation it appears that the relatives' claim, although it arises from the wrong which was done to the victim, is concerned with consequences which are entirely different from the consequences which concern the victim, and to that extent it is a separate claim; it is derived, it is true, from the liability of the defender arising from the injury to the victim, but it is not derived through the victim's claim arising from that injury, as is a right of action in his executor. Therefore if the legal liability of the defender has been affected by any action of the victim, such as discharge, whether partial or complete, or renunciation, or his having been guilty of contributory negligence, so will be affected the right of action of the relatives arising from the injury. This seems always to have been the law. Lord Justice-Clerk Moncrieff observed in Horn v. North British Railway Co. (1878) 5 R. 1055, "It is only because the son, if he had survived, would have had a right of action against the company that the father was entitled to sue the same persons in respect of the same act." And as Lord Mackintosh held in M'Kay v. Scottish Airways (supra) at p. 258:

"At the same time the relatives' right of action is not wholly and in every sense independent of the right of action in the deceased himself. Both rights depend upon the same wrong, and the fact that the deceased suffered an actionable wrong is the foundation and, in my opinion, the indispensable foundation of any right of action vesting in the relatives."

Both rights, as I would venture to put it, spring from the liability of the defender to which the wrong gave rise. Moreover, I have already suggested that the effect of the Fatal Accidents Act 1846 was to equiparate the laws of England and Scotland; that Act gives an action to certain relatives of a person killed by some wrongful act, neglect or default such as would have entitled the person injured, but for his death, to have maintained an action and recovered damages against the person liable in respect of it. Yet this qualification, precisely as in Scotland, does not render the relatives' action derivative in the sense of representative. In Seward v. The Vera Cruz (1884) 10 App. Cas. 59 Lord Blackburn said at p. 70, "if a person under the circumstances mentioned, when he might have maintained an action if it had been for an injury to himself which he had survived, a totally new action is given against the person who would have been responsible to the deceased if the deceased had lived." I would accordingly reject the appellant's first argument.

The second argument for the appellant, which in my opinion is well-founded, is that the bringing of an action by the deceased during his life-time is not one of those acts done by him, such as settlement or renunciation, which affects the right of action in the relatives arising upon his death. This involves a consideration of the case of Darling v. Gray (supra). I have already stated the effect of that case.

My Lords, it would I believe simplify this discussion if I were to point out that we are not here concerned with the familiar rules relating to the transmissibility of actions competent in his life-time to a deceased person, whether the conclusions are in respect of compensation for suffering (solatium) or for patrimonial loss (which I will call reparation). I rather think that it was the failure to distinguish between the principles governing the transmission of actions and those at the root of rights of action that enabled the counsel for the respondents to develop, with great skill, the argument which assigned a hitherto undetected ratio decidendi to Darling v. Gray . The general rule, for which I need not cite authority, is that when a man dies, his right to bring an action in respect of solatium, as distinct from reparation, dies with him. That right of action so far resembles the Roman actio injuriarum, or action upon outrage to the personality, that, the personality ceasing to be, so also the right of action expires. The executor accordingly cannot institute an action for solatium, any more than can, in the life-time of the cedent, a trustee in bankruptcy—Muir's Trustee v. Braidwood 1958 S.C. 169. This is not so in reparation; the executor is entitled to institute an action in order that there may be restored to the estate administered by him the amount by which the negligence of the defender diminished it: Smith v. Stewart & Co. Ltd. 1961 S.C. 91. In addition, if the deceased has in his life-time instituted an action concluding for solatium, his executor may carry it on after his death—see Stewart v. London, Midland and Scottish Railway Co. 1943 S.C. (H.L.) 19 per Viscount Simon L.C. at p. 25. In the same appeal Lord Macmillan drew attention at p. 41 to the Act 1693 c. 24, which provides that, if the pursuer dies during the dependence of any process (my emphasis) raised at his instance, an executor or assignee may carry it on by being sisted in his place. My own impression is that this statute did no more than authorise a simple procedural economy: instead of a new action by the executor being instituted, the old one might be carried on. No notice is taken of the statute in the later editions of Stair, or in More's elaborate notes on Executry which extend from pp. cccxxxix to ccclxiv, or in Erskine, or, as Lord Macmillan points out, in Bern's Executor v. Montrose Asylum (1893) 20 R. 859, the case which Stewart v. L.M.S.R. specifically confirmed. Although there is no doubt much to be said for the view that after 1693 there was statutory authority for the executor's right of action, that is not the ground upon which that right is usually supported; indeed could not be if it be the case—and I have no reason to suppose it is not—that the action was competent before 1693. And it is this common-law ground which has been appealed to as providing a reason for the judgment in Darling v. Gray .

Put briefly, the argument is that, in any action, when the stage of litiscontestation (the lodging of defences) is reached, the situation in which the right of action could not transmit is altered. "Per litis contestationem enim fit novatio et quod antea ex delicto debebatur jam debetur ex quasi contractu": Heineccius, Recitationes Lib. IV Tit. IV S. MCXI, quoted by Lord Macmillan in Stewart v. L.M.S.R. (supra) at p. 40. Thus the executor, who could not have sued in delict, may sue in quasi-contract. Whether today this result is dependent on the particular stage the action has reached, or whether it arises on the signetting of the summons, it is not material to enquire.

My Lords, I can appreciate this as an elegant rationalisation of the rule which enlarges the right of an executor to follow a wrong done to his cedent. What I cannot see is that the doctrine has any effect to cut down the right of a dependent to vindicate her own wrong. The argument to that effect depends on the proposition that the instituting of the action by the deceased was an act by him which destroyed his own right of action, just as renunciation, settlement or decree would have done; he has exchanged his right to sue in delict for a right to sue in quasi-contract. In my opinion the proposition depends far too closely upon an adherence to the procedural rules of the law of Rome, which, as has been more than once pointed out, is not the law of Scotland. The rule was, in the formulary procedure, that the parties appeared before the Praetor, who, if the dispute raised only a question of law, gave judgment upon it. If there was involved a controversy as to facts, the Praetor appointed a judex to try the matter. At this stage, i.e. the last stage before the Praetor, litiscontestation took place. Hunter, in his textbook of Roman Law, 4th Edn. p. 984, characterises the rule as "unfair and capricious". "We," says Erskine, Institute IV 1 65, "are strangers to the Roman formulae."

In the procedure, however, with which we are familiar, the right of action in the deceased cannot be said to be extinguished on litiscontestation: it remains entire until it is extinguished by a decree of the Court, giving effect to a judicial decision inter parties, or to a joint minute of settlement or to a unilateral act of abandonment by the pursuer. But the stronger answer seems to me to be, that whatever effect litiscontestation may have in the action between the deceased and the defender, it can have no effect on the liability of the defender to the dependants. To say that that liability has turned from one in delict to one in quasi-contract—with which I would not necessarily agree—would be of no avail, just as it profited the pursuer nothing in Stewart v. L.M.S.R. to plead in the alternative that, if the defender was not liable in delict, he was liable on the same narrative in contract. The act of litiscontestation at the best for the respondents changes the nature of the right of action which the dependants have against the defenders. But it is neither an act by the deceased, such as settlement or renunciation, nor a decree in foro, either of which would extinguish the defender's liability, and with it the dependants' right of action.

My Lords, if the argument upon which the respondents relied is insufficient to support the doctrine of Darling v. Gray, it is necessary to look at the reasons advanced in favour of it in that case. I confess that I was surprised, at the conclusion of the argument, that neither counsel had seen fit to quote what had the appearance of an obvious precedent, namely Darling v. Gray in the Court of Session, reported at 18 R 1164, but my surprise evaporated, on examining that report for myself. Lord Young gave the only opinion, and, after stating the facts and the nature of the action, his whole judgment consists of the words, "It is a question of novelty whether that is competent. I am clearly of opinion that it is not". There is, in short, no ratio decidendi.

What the ratio of the decision in your Lordships' House was, is a matter of some dubiety. Lord Field is reported in [1892] A.C. at p. 582 as favouring the maxim "nemo debet bis vexari pro una et eadem causa." Lord Watson adverts to the same ground of judgment on the same page; Lord Cameron in Bruce v. Alexander Stephen & Sons Ltd. 1957 S.L.T. 78 at p. 79 and Lord Hunter in Gray v. North British Steel Foundry Ltd. 1969 S.C. 231 at p. 235, have suggested this as the effective reason. My Lords, even if that be so, as to which I am not satisfied, I would respectfully say that the reason is unsound. I omit the circumstance that today, though not in 1892, there would be in fact only one action, as a merely technical distinction. But I cannot see that, where the liability for the consequences of a single negligent act involves reparation to persons or classes of persons who have separate and distinct grounds of action, the maxim can possibly apply. After all, when a ship has been negligently navigated, the owner is commonly vexed by actions arising out of the act of negligence at the instance severally of another ship, the crew, and the owners of cargo, though the actions may be tried together.

It seems to me that the effective ratio was as follows, (a) The right of dependants to sue such an action as this is anomalous, an arbitrary exception from the general law, and having no reason but inveterate custom to support it; (b) that right should not be extended; (c) there was no precedent for the appellant's claim. As for (a), I have already tried to explain the principle which admits such action, and to show that the right of action was approved by Stair. As for "inveterate custom", I suppose that that might be accepted as a reasonable description of the common law. As regards (b), Darling's case was not an attempt to extend rights. One is indeed on the contrary now looking for the ratio decidendi of those who would contract them. There was on the other hand no precedent for the respondents' submission in that case. The precedents relied on by the appellant in the present case are not particularly clear, but they are of some significance. In Neilson v. Rodger (1853) 16 D. 325 there is a passage in the opinion of Lord Wood at p. 330 which seems to show that he accepted the possibility that two such claims as are here made could both be pursued. This indeed happened in Walker v. Robertson (1821) 2 Mor. 508. These precedents were cited as negativing Lord Watson's criticism by Mr Hector McKechnie, whose scholarship is respected, in Encyclopedia of the Laws of Scotland Vol. 12 p. 503.

My Lords, I have come to conclusion that the case of Darling v. Gray & Sons was wrongly decided. It applied an unwarrantable and arbitrary distinction to the right of action accruing on a death to a dependant according as the deceased had or had not before his death vindicated by action his own right to sue in reparation. The next question is, whether the decision ought to be overruled. I have no doubt that it ought. I do not think it is necessary to assemble here as large as possible a number of instances, whether in the literature or in the authorities, where the decision has been adversely criticised. Sufficient examples from the literature might consist of the works of Mr McKechnie and Professor Walker, already cited. As for judicial views, it is enough to refer to the emphatic opinions of the Lord Justice Clerk, Lord Kissen and Lord Fraser in the instant case. As my noble and learned friend Lord Wilberforce has pointed out, there was no occasion in Stewart v. L.M.S.R. (supra) either to approve or disapprove a decision which was only incidently referred to. It is now more than 10 years since the Lord Advocate referred this rule of law to the Scottish Law Commission; shortly thereafter the Commission received a similar communication from the Secretary of State, in consequence of industrial criticism of Darling, arising from the decision M'Cann's Executrix v. Wright's Insulations Ltd. 1965 S.L.T. (Sh. Ct.) 19. The Scottish Law Commission, in their Report No 31, have recommended that the law should be altered in the sense of overruling Darling v. Gray .

It is also observable that in recent years the Scottish courts, while acknowledging the authority of Darling v. Gray, have held that it is no ground of objection to an action by dependants that a second claim was also instituted by the personal representative: M'Ghie v. British Transport Commission 1964 S.L.T. 225 and Gray v. North British Steel Foundry Ltd. (supra), and the opinion of Lord Cameron in Bruce v. Alexander Stephen & Son Ltd. (supra). These authorities seem to show, though in a somewhat limited way, that the law of Scotland has developed so far as is consistent with binding precedent, in a direction away from the doctrine of Darling's case.

My Lords, the decision in Darling's case has stood for a long time, and I share the reluctance expressed by my noble and learned friend Viscount Dilhorne in Reg v. National Insurance Commissioner Ex parte Hudson [1972] A.C. 944 at p. 993 to interfere with such a precedent. But it cannot be said that this is the class of case in which persons may have acted in reliance on old-established law; no prospective liability could possibly have been calculated, either by an employer or his underwriters, according to the contingency of whether a hypothetical injured man would or would not have instituted proceedings before his death. To quote Lord Reid in Hudson's case (supra) at p. 966 the decision has "led to results which were unjust"; that should in the circumstances be an ample ground for overruling it. I have already pointed out that so to do would enlarge a class of beneficiaries, a reform which has hitherto been reserved to Parliament, but would remove from certain members of a class a disability imposed for reasons which are not convincing, and for which no precedent, as at the date of the decision, can be identified.

It was suggested that, should the rule in Darling v. Gray be set aside, there was some possibility of an overlap between the damages awarded to the executor and those awarded to the dependants. I am not satisfied that that is so in the type of case we are considering, but, even if that possibility should exist, I see no reason why the court could not prevent it by making a just assessment. It was also argued that since, as the report of the Scottish Law Commission disclosed, there were areas in the law of reparation besides Darling v. Gray which required examination and possibly reform, it would be wrong to proceed to make a piece-meal alteration in a single field. For my part I cannot agree with such an argument. Your Lordships are here to do justice between the appellant and the respondents; that justice cannot be denied in order to wait for future remedies in which these parties can have no interest, and which bitter experience suggests may be indefinitely delayed.

My Lords, for these reasons I would allow this appeal.

LORD EDMUND-DAVIES .—My Lords, for the reasons appearing in the speeches of my noble and learned friends Lord Wilberforce and Lord Kilbrandon, which I have had the great advantage of reading when in draft, I concur in holding that this appeal should be allowed.