Scottish Court of Session Decisions

This was an appeal by the North British Railway Company from the award of the Sheriff-Substitute of Forfarshire ( Campbell Smith) in an arbitration under the Workmen's Compensation Act 1897, at the instance of Mr and Mrs John Barrett and their children against the appellants, to ascertain and fix compensation due in respect of the death of Joseph Barrett, railway painter. By interlocutor dated 18th February 1899 the Sheriff sustained the title of the father and mother only to sue, and allowed a proof.

The following facts were set forth by the Sheriff-Substitute as having been established in the proof;—“(1) That Joseph Barrett, a son of the pursuers, on 6th July 1898, when going home along the Tay Bridge, on which he had that day and for some days previously been working as a painter of said bridge, in the employment of the defenders, was run down and killed by one of their trains. (2) That the deceased was aged 19 years, and had been for the previous four years for the most part employed on board ship as a common sailor and as a fireman. (3) That for three seasons when he was at the Greenland whale-fishing his mother drew his half-pay, conform to Nos. 8 to 13 of process inclusive, and that he regularly gave up to his mother his whole wages to spend upon herself and the family as she chose, he receiving back from her 2s. or 3s. a week of pocket-money when he asked it, as also money to pay for such clothes as he and she thought to be necessary for him. (4) That as a son he was dutiful, affectionate, steady, industrious, and unusually free from selfishness in his relations to his parents, spending little upon himself. (5) That his father is a carter earning 23s. a week, except when losing time through wet weather; that when the mother was able she worked in a mill, and earned about 9s. a week, until the deceased desired her to stop working outside of her home, and gave her his half-pay, which, at the date of this request and acquiescence in it, amounted to 30s. a month, upon the condition that she should stay at home; that this pair had produced eleven children, of whom only five are now living, and that in the family there has been a great deal of bad health; that the circumstances of the family were such that the contributions made by the deceased, which practically amounted to the whole of his earnings that he could possibly spare, were necessary to keep the large delicate family provided with the plain common necessaries of life, and in a state of comfort and decency not much above penury, and not at all above the level of families of working men who regularly earn 20s. a-week. (6) That to attain to this desirable level of plain living necessary for comfort and health the pursuers were dependent upon the contributions made by the deceased to his mother,

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and through her to his father, in aid and relief of his obligation to feed and clothe and nurse in sickness a large, poor, delicate family. (7) That the wages of the deceased were 3s. 6d. a day; that he was 29 working days in the service of the defenders before his death, and of these 29 days he was at work during all the 29 except on the 25th June, and that the effect of this day's absence is to reduce his average weekly weekly earnings to 20 1 4 shillings.”

The Sheriff also found—“In respect of the limited dependence of the pursuers upon the deceased, and the complexity of the problem of probabilities affecting the ability of the deceased to continue to help his parents, even if he had survived them, that the full compensation allowed by the statute is not justly due to the pursuers, and that in an estimate of the balance of probabilities only Seventy-five pounds sterling ought to be paid to them by the defenders.” The Sheriff also found the respondents entitled, jointly and severally, to said sum in name of compensation, and decerned for that sum, together with the expenses of process.”

The following questions of law were submitted for the opinion of the Court:—“(1) Is the mother of a son, his father being alive, entitled, according to the law of Scotland, to sue his employers for damages or solatium in respect of his death? (2) Is it competent under the Workmen's Compensation Act 1897 to decern in favour of the father and mother of the deceased jointly and severally for a sum of compensation? (3) Were the father and mother of the deceased, or either of them, upon the facts found by the Sheriff-Substitute, in part dependent upon the earnings of their deceased son at the time of his death within the meaning of the Workmen's Compensation Act 1897?”

The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), by section 7 (2) enacts that “‘Dependants’ means ( b) 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.”

Argued for appellants—The authorities were clear to the effect that in Scotland a husband and wife could not sue jointly for the loss of their son— Whitehead v. Blaik, July 20, 1883, 20 R. 1045; Bell and Wife v. Laing, November 20, 1895, 4 S.L.T. 252. That was the common law rule which was followed by the statute. The English cases had no application, because a different standard was provided for England and Scotland. The Sheriff had regarded the mother as having a claim in addition to that of the father, so to that extent the sum awarded by him must be reduced. Moreover, the facts found proved by the Sheriff were not sufficient to show either the father or mother were in part dependent on the earnings of their son at the time of his death.

Argued for respondents—This case was not on all fours with Whitehead, where the husband only gave his consent by a separate writing outside the record, and did not appear personally. The Sheriff's view was that the wages of the deceased were necessary for the support of his family, and the fact that the wife was left in as a pursuer made no difference to the award. The Sheriff was right in holding that the family as a whole were partly dependent on the deceased at his death— Simmons v. White, L.R. [1899], 1 Q, B. 1005.