Scottish Court of Session Decisions

This was a stated case on appeal from the Sheriff Court at Edinburgh in the matter of an arbitration under the Workmen's Compensation Act 1897.

The case stated by the Sheriff-Substitute (Hamilton) was as follows:—“This is an arbitration in which the pursuers make the following averments:—That the pursuers are respectively the daughter-in-law and grandchildren of the deceased Edward Hanlin, his son Thomas Hanlin having been the husband of the female pursuer Mrs Annie M'Kue or Hanlin, and the other pursuers being their children. That Thomas Hanlin died on 25th August 1896, and that the pursuers were dependent on the said Edward Hanlin at the date of his death. That Edward Hanlin was a labourer in the employment of the defenders, and that he met his death on 3rd October 1898 while engaged at the erection of a building which was being constructed by means of scaffolding, and was on said date over thirty feet in height.”

The case was debated before the Sheriff-Substitute, on the question of title to sue, and on 8th May 1899 he pronounced the following interlocutor:—“The Sheriff-Substitute having resumed consideration of the case, dismisses the petition, in so far as brought at the instance of the pursuer Mrs Annie M'Kue or Hanlin for her own right and interest: Sustains the title to sue of the other pursuers John Hanlin, Edward Hanlin, and Thomas Hanlin.”

The question of law for the opinion of the Court was—“Whether the said John Hanlin, Edward Hanlin, and Thomas Hanlin are entitled, according to the law of Scotland, to sue the defenders for damages, or solatium, in respect of the death of the deceased Edward Hanlin, and are in this respect entitled to the present application.”

The Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37) enacts by section 1, sub-section (1), and First Schedule, section 1 ( a) (I) and (II), and section 4, that where death results from the injury to the workman, the employer shall, under the provisions of the Act, be liable to pay compensation for the benefit of the workman's “dependants,” if he has any. By section 7, sub-section (2), the word “dependants” is defined to mean in Scotland such of the persons entitled according to the law of Scotland to sue the employer for damages or solatium in respect of the death of the workman, as were wholly or in part dependent upon the earnings of the workman at the time of his death.

It was not disputed that the claim of Mrs Annie M'Kue or Hanlin had been rightly rejected by the Sheriff-Substitute.

Argued for the appellants—Grandchildren had no title at common law to sue for damages and solatium in respect of the death of their grandfather, and consequently they had no title to claim compensation for such death under the Workmen's Compensation Act 1897—Workmen's Compensation Act 1897, section 7 (2), sub voce “dependants” ( b). There was no case in which the title to sue of grandchildren had been either sustained or rejected. It must

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be conceded that there was a mutual obligation of support between grandchildren and grandparents ( Bell v. Bell, March 1, 1890, 17 R. 549), but that was not sufficient. The right given to certain relatives by the law of Scotland to sue for such damages and solatium was anomalous, and was not to be extended beyond those cases which had already been recognised and admitted, viz., husband and wife, and parent and child. The rule now was that a title to sue only existed in cases where there was (1) a mutual obligation of support, and (2) previous judicial recognition of the title to sue. Extension of the rule to analogous cases was not allowable— Eisten v. North British Railway Company, July 13, 1870, 8 Macph. 980, per L. P. Inglis at page 984; Weir v. Coltness Iron Company, March 16, 1889, 16 R. 614, per Lord Young at page 616; Clarke v. Carfin Coal Company, July 27, 1891, 18 R. (H.L.), 63, per Lord Watson at page 65; Darling v. Gray & Sons, May 31, 1892, 19 R. (H.L.), 31, where Lord Watson at page 32 said that the benefit was limited “to persons standing in the legitimate relations of husband, father, wife, mother, or child to the deceased;” Whitehead v. Blaik, July 20, 1893, 20 R. 1045, per L. P. Robertson at page 1048. In Eisten, cit., if a mutual obligation of support had been sufficient, the additional element of nearness of relationship desiderated by the Lord President would have been irrelevant. In that case the Lord President began by enumerating the cases which were admitted and beyond which the right was not to be extended. In Weir, cit., the judgment proceeded on the assumption that the case of Samson v. Davie, November 26, 1886, 14 R. 113, was well decided, and consequently upon the assumption that there was a mutual obligation of support, and the case of Weir was therefore an authority for the proposition that a mutual obligation of support by itself was not sufficient, and that inclusion among the previously admitted cases was also necessary, for in Weir the Court held that there was no title, even assuming a mutual obligation of support. This view was approved by the House of Lords in the case of Clarke v. Carfin Coal Company, cit., which overruled Samson v. Davie, cit. The title of grandchildren to sue had never been recognised, and as the previous practice was conclusive, however strong the argument might be upon principle for their inclusion among the cases recognised, that was not now sufficient. Under Lord Campbell's Act (9 and 10 Vict. c. 93), section 5, grandchildren were entitled to sue because “child” was defined as including “grandchild,” but it was plain that in the House of Lords' decisions, cit. supra, the Lords having that Act before them did not recognise any title to sue in grandchildren under the law of Scotland.

Argued for the respondents—The title to sue of grandchildren had been expressly recognised.— Greenhorn v. Addie, June 13, 1855, 17 D. 860, per Lord Curriehill at page 868, and per Lord Deas at page 869, where the expression used was “ascendants and descendants,” and per L. P. M'Neill at page 864, where it was “parents or descendants;” Eisten v. North British Railway Company, cit., per Lord Deas at page 985 (“ascendants and descendants,” and “grandchildren and great-grandchildren”), per Lord Ardmillan at page 986(“ascendants and descendants”), and per Lord Kinloch at page 987 (“perhaps generally to ascendants and descendants”). The expression “parent and child” was used in the cases as including all “ascendants and descendants.” Lord Watson, in using the expression “parent and child,” was employing these words as defined in Lord Campbell's Act (9 and 10 Vict. c. 93), sec. 5.