Scottish Court of Session Decisions

The following case was stated in terms of the Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), Schedule II. 14 ( c), by the Sheriff-Substitute of Forfarshire at Dundee (J. C. Smith) on an appeal to the Second Division of the Court of Session, in an action under said Act, at the instance of

Page: 726↓

Christina Clement, a pupil child residing with Mary Chalmers or Wallace, wife of John Wallace, waggon driver, at 11 Lyons Close, Dundee, appellant, against Thomas Bell & Sons of Dundee, Limited, spinners and manufacturers, respondents:—

“Upon the 27th day of January 1899 a petition was presented under the Workmen's Compensation Act 1897 to the Sheriff Court of Forfarshire, at Dundee, at the instance of the appellant against the respondents, to pay to the appellant £150 with interest.

In her condescendence the appellant stated—(Art. 1) That she was about two years of age, and was the illegitimate and only child, and the only known dependent of the late Mary M'Intyre, spinner, who resided at 14 Lyon's Close, Dundee. (Art. 2) That the said Mary M'Intyre was employed by the respondents as a spinner in their said Heathfield Works. (Art. 3) That on the morning of 3rd December 1898, while the said Mary M'Intyre was working in respondent's said Heathfield Works at a spinning-frame, her right hand was caught at a part of the said machine, and she was severely injured. She was removed to the Dundee Royal Infirmary, and died there from the effects of the said injuries on 11th December 1898. (Art. 4) That said Heathfield Works are a factory within the meaning of the Factory and Workshop Acts 1878 to 1891, and the respondents are occupiers thereof within the meaning of the Factory and Workshop Acts 1878 to 1895. That the said late Mary M'Intyre's employment was one to which the Workmen's Compensation Act 1897 applied, and that the personal injuries sustained by the said Mary M'Intyre were the result of an accident arising out of and in the course of her employment.

The petition was served upon the respondents upon 27th January 1899. On 8th February 1899 the said John Wallace was appointed curator ad litem to the pursuer, and a hearing took place before the Sheriff. No defence was stated in writing. The only defence insisted upon was a denial of the appellant's title to sue in respect of her being an illegitimate child.

On 26th April 1899 the Sheriff dismissed the petition in respect that an illegitimate child has no title to sue.

The question of law for the opinion of the Court was—Whether an illegitimate female child, dependent upon the earnings of her mother at the time of the mother's death, has a title to sue the employers of the mother for compensation under the Workmen's Compensation Act 1897 in respect of the death of the mother?”

Argued for appellant—It was contended that the case was ruled by the case of Clarke v. Carfin Coal Company, July 27, 1891, 18 R. (H.L.) 63, which had affirmed the decision in Weir v. Coltness Iron Co., March 16, 1889, 16 R. 614, and overruled Samson v. Davie, November 26, 1886, 14 R. 113. Two circumstances, however, differentiated the present case from Clarke and Weir, viz., (1) The present case was that of a pupil child suing for the death of its mother, not that of a parent suing for the death of a child. There was no liability on the part of illegitimate children to support their parents, but deceased if she had lived would undoubtedly have been bound to aliment her child, and therefore the latter had a claim for pecuniary loss for the death of her mother. (3) Both Clarke and Weir were actions in which solatium and damages were sued for. In the present case the appellant did not sue for solatium but for damages alone. The claim of an illegitimate child to damages for the death of a parent had been recognised in the old case of Children of Forrest v. Clerkington, June 24, 1542, M. 13,903.

Argued for the respondent—The appellant had no title to sue. At common law all actions of this kind were confined to a very limited class, viz., husbands and wives and parents and lawful children. A brother had no such action for reparation for the death of a sister, and there was less reason for extending to an illegitimate child what the law did not give to a brother or sister. Under section 7 of the Act the dependent entitled to sue under it must have a title to sue at common law. It would not do to argue that the illegitimate child had a title to sue merely because she had sustained some pecuniary loss by reason of her mother's death, because if that reasoning were sound, then if a workman, who was in debt, died by reason of accidental injury received in the course of his employment, any creditor who had sustained loss by reason of his debtor's death would have a title to sue the employer for damages. The decision in Clarke was fatal to the present claim.

At advising—