Scottish Court of Session Decisions

Mrs Williamson, residing in Leith, raised this action in the Court of Session, as widow of Archibald Williamson, against the North-Eastern Railway Company, whose principal office was at York, for compensation for the death of her husband, a sailor, who was killed by a passing train at a level-crossing on one of the company's lines at Middles borough, in Yorkshire. At the time of his death her husband was a sailor on board the “Valund” of Grangemouth, which was then lying at Middles borough.

The pursuer had used arrestments against the defenders ad fundandam jurisdictionem, and they were possessed of heritable property in Scotland—one of their lines running from Carham by Sprouston to Kelso.

The pursuer averred that her husband's death was caused by the fault and negligence of the defenders or of those for whom they were responsible.

The defenders denied that the death of pursuer's husband was due to fault on their part. They averred that the level-crossing where he was killed was not a level-crossing in the ordinary sense of the term, but a private crossing, over which there was no public right-of-way; and therefore that the deceased was a trespasser when seeking to cross the line at that point. They also stated—“The defenders are an English company carrying on business in England, and the place where the accident occurred is in the North Riding of the county of York. By the law of England, the title to sue in respect of the death of any person occasioned through the fault of any other person is vested for the first six months after the death in the executor of the person deceased. The sum awarded in any such action is divisible among the wife (or husband), parent or parents, and child or children of the person deceased, in such shares as the jury awarding damages may direct. Further, no damages are recoverable in name of solatium.

They pleaded, interalia—“(2) Forum noncon—veniens. (3) The grounds of the present action having arisen entirely in England, the rights and liabilities of parties must be regulated by the law of England.” They also pleaded that by the law of England the pursuer had no title to sue.

The Lord Ordinary pronounced this interlocutor:—… “Sustains the third plea for the defenders: Finds that the pursuer has not set forth any sufficient title according to the law of England to sue the present action: Therefore dismisses the action, and decerns, &c.

“ Note.—It was scarcely disputed by the pursuer's counsel that she requires to found upon the law of England in order to maintain her action. But no allegation as to the law of England is made by her; and the defenders’ allegations being only denied ‘in so far as inconsistent herewith,’ are not denied to any extent. In this state of matters, as there was no motion for leave to amend, I think that the pursuer has failed to set forth a sufficient title.

“If I were competent to decide upon the effect of the Act 9 and 10 vict. c. 93, as amended by 27 and 28 vict. c. 95, in their application to the present claim, I should have great difficulty in holding that an action sued by the widow, apparently for her own behoof alone, within six months of the death of the person killed, can be sustained. The provision of Lord Campbell's Act, which excludes more than one action, is not repealed; and the enactment that all such actions must be by and in name of the executor is only

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modified to the limited extent provided by section 1 of the Act 27 and 28 Vict. c. 95, which does not expressly take away the exclusive right of the executor (if there be one), excepting after the lapse of six months. But this is just one of the questions of English law as to which the pursuer makes no allegation. The difference between this case and the case of Goodman v. The London and North—Western Railway, 14 Scot. Law Rep. 449, seems to be, that in that case the action, according to Lord Shand's judgment, was too late; and in the present case the action seems to have been raised too soon. I prefer, however, to give no opinion upon the question of English law, and to place my judgment upon the pursuer's failure to bring herself by relevant allegations within the scope of the statutes above mentioned.”

The pursuer reclaimed, and argued—The pursuer being a domiciled Scotswoman, bringing her action in a Scottish Court, was entitled to have it tried according to the law of Scotland. The defenders' objection that pursuer had not set forth the law of England on record was immaterial— Callendar v. Milligan, June 20, 1849, 11D. 1174; but by the law of England the pursuer had a good title to sue as administratrix for her children (9 and 10 Vict. c. 93; 27 and 28 Vict. c. 95). The circumstances of the case met the condition that the lex loci delicti and the lex fori should concur in the remedy— M'Larty v. Steele, January 22, 1881, 8 R. 435. The defenders’ plea of forum non conveniens had been repelled in cases which were stronger than the present one— Longworth v. Hope, July 1, 1865, 3 Macph. 1049; Clements v. Macaulay, March 16, 1866, 4 Macph. 583. In both of these cases both parties were foreigners, the jurisdiction being unquestionable, and the remedy equally applicable. Here the action was competent in either country. The defenders then must show that England was the more convenient forum for both parties. If compelled to resort to England, the pursuer would be, from her circumstances, practically deprived of any remedy at all, while it would be equally convenient for the defenders to have the case tried here as in London on appeal. The objection that the case involved a question of English right-of-way was also immaterial, for statute provided for ascertaining the law of England in such circumstances. The Court had, then, no discretion, but was bound to exercise its jurisdiction; it was not entitled to make the pursuer's case harder for her by sending her to England when they could give her a remedy here— Clements, supra, per Lord Justice-Clerk, pp. 292–3.

The defenders replied—The question, wherever tried, must be tried by the law of England; but the pursuer could not now be heard on the law of England, because when she found it stated in defence as against her she declined to state or plead that it was in her favour. When the cause of action depended not on contract but on delict, its decision depended on the law of the place where the wrong was committed— Goodman v. London and North-Western Railway Company, ante, vol. xiv., p. 449. But by whatever law it was tried, the question should not be tried here, for it did not meet the condition of international law that the lex loci delicti and the lex fori should concur in all respects in regard to the remedy—Wharton's Conflict of Laws, secs. 478–9; Westlake's International Law, secs. 186–7; Philips v. Eyre, L.R., 4 Q.B. 225, 6 Q.B. 1; The “ M. Maxain,” L.R., 1 Prob. Div. 107; Mostyn v. Fabrigas, 1 Smith's L.C. 625. By the law of England the present was not, as in Scotland, a good ground of action; the right of action belonged only to the executor. In considering the dicta in Clements' case ( sup. cit.), it should be kept in view that it was a case of contract, good by the law of the place of contract. Forum conveniens meant convenient for both parties. This was not a convenient forum for the defenders. The Court was not at liberty to look at the pecuniary circumstances of the pursuer, but merely at the legal aspect of the question of forum. The question of the deceased's right to be where he was could be more conveniently tried there.

At advising—