Scottish Court of Session Decisions

Mrs Margaret Mitchell or Pollok, residing at Nitshill, raised an action for £250 damages against (1) Charles Workman, M.D., Glasgow, (2)Messrs Anderson & Chisholm, solicitors, Edinburgh, and (3) The Ocean Accident and Guarantee Corporation, Limited, Edinburgh, jointly and severally, or severally.

The pursuer made the following averments— She was the daughter of the late Thomas Mitchell, gardener, Glasgow. Mitchell died on 29th January 1899 at the house of James Allan, 82 Paisley Road, Glasgow, from injuries which he had sustained on 16th December 1898 while working at Wellshot Colliery, Cambuslang, belonging to the United Collieries Company, Limited. He was survived by his wife and the pursuer and three other children. His wife and children, other than the pursuer, were resident in England, and had not for years past had much intercourse with the deceased. On learning of her father's death the pursuer arranged that his body should remain at Allan's house till the funeral on 1st February. On 30th January her agents intimated a claim for compensation on behalf of her mother, herself, and the other members of the family, to Messrs Anderson & Chisholm, agents for the Ocean Accident and Guarantee Corporation, Limited, with whom the United Collieries Company was insured. On 31st January Dr Workman, without permission from the pursuer or her agents, made a post mortem examination of the body. The examination thus wrongfully made by Dr Workman was made upon the immediate instructions of Messrs Anderson & Chisholm, acting as servants or agents on behalf of the Ocean Accident and Guarantee Corporation, Limited, in full knowledge that neither legal warrant nor consent from anyone entitled to give it had been obtained or asked. As a consequence of these illegal proceedings the pursuer had suffered severely in her feelings, and the defenders were liable to her in reparation.

The pursuers pleaded—“(1) The defender Dr Workman having wrongfully and illegally made the post mortem dissection libelled, to the loss, injury, and damage of the pursuer, one of the daughters and next-of-kin of the said Thomas Mitchell, is liable to her in reparation for the injury thereby done to her, and this being moderately estimated at the sum sued for, decree

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should be pronounced as concluded for against him. (2) The illegal act libelled having been done by Dr Workman on the employment of the defenders The Ocean Accident and Guarantee Corporation, Limited, upon instructions given by the defenders Anderson & Chisholm in the course of their employment as agents for said Corporation, both said defenders are also liable in reparation therefor, and the pursuer is entitled to decree against them as concluded for.”

All the defenders pleaded, inter alia—“(1) The action is irrelevant, et separatim incompetent. (2) No title to sue.”

The pursuer proposed the following issues—“Whether on or about the 1st February 1899, and at No. 82 Paisley Road, Glasgow, the defender Charles Workman, M.D., did wrongfully make a post-mortem dissection of the body of Thomas Mitchell, the father of the pursuer, to the loss, injury, and damage of the pursuer? Damages laid at £250. (2) Whether on or about the 1st day of February 1899 the defenders Anderson & Chisholm, and the Ocean Accident and Guarantee Corporation, Limited, or one or other and which of them, did wrongfully cause the defender Charles Workman, M.D., to make, at No. 82 Paisley Road, Glasgow, a post-mortem dissection of the body of Thomas Mitchell, the father of the pursuer, to the loss, injury, and damage of the pursuer? Damages laid at £250.”

On 9th December 1899 the Lord Ordinary ( Kyllachy) approved of the issues.

Opinion.—“I decided nothing in this case when I ordered issues, but I had very little doubt, and have none now, that the pursuer here has set out facts which involve a legal wrong, or, at all events, which upon proof may be found to involve a legal wrong. Moreover, I have no doubt that the cutting up or dissecting, or other unauthorised mutilation of a near relative's body constitutes a wrong of which a near relative has a title to complain. Further, without deciding anything beyond what I require to decide, I am not prepared to hold that the daughter of a person whose body has been treated in the manner alleged may not be entitled to solatium— that is to say, to damage in respect solely of injury to feelings.

“What the amount of the solatium may be is a question affecting the quantum of damage. I think it is very likely that a relative who had nothing to do with the deceased for many years, and was not living with or near him, may have little chance of obtaining any substantial award of damages. But that is not a question which arises at this stage.

“I must therefore repel the defender's pleas as to title and relevancy; and as to the mode of proof, I confess if it were left to my own judgment I should have preferred to have the case tried before myself. But the statute requires that cases of this kind shall go to a jury unless both parties consent to a proof before a judge, or unless special cause is shown for taking the cause out of the general rule. I do not think that special cause has been shown here, and accordingly I must approve of these issues, to the terms of which no objection is taken.”

The defenders reclaimed, and argued— The action was irrelevant. Here access had been got to the dead body without any trespass on the pursuer's property, and no one had any right of property in a dead body— [ Lord Justice-Clerk—A dead body can be stolen any time before it is consigned to the grave. Now, if a dead body can be stolen, it must surely be the property of some-one.] Under the Anatomy Acts such an act could be punished as a crime, and the theft of a corpse out of a house had been sustained as relevant to infer an arbitrary punishment ( Mackenzie, Burnett's Criminal Law, p. 124, footnote), but there was no principle of the law of Scotland entitling a relative to a civil action for damages. [ Lord Trayner—If a doctor dissects a dead body without the permission of the relatives of the deceased, and without an order from the proper authorities, it is plain that he commits an actionable wrong.] He might be liable to a criminal prosecution under the Anatomy Acts, but there was no civil remedy. (2) The pursuer had no title to sue. If a title were in anybody it was in the widow, who under the Anatomy Act 1832 (2 & 3 Will. IV. c. 75), secs. 7 and 8, had a right to direct how the body was to be disposed of. In any view the pursuer was not entitled to sue alone. She was one of four children, and the widow was also alive. This was a claim arising out of an alleged wrongful act, and all the persons who had an interest in that claim must be parties to the one action— Darling v. Gray & Sons, May 31, 1892, 19 R. (H.L.), per Lord Watson, 31.

Argument by the pursuer was called for only on this last point. She argued— There was no plea on record of “all parties not called,” and it was incompetent for the defenders to prove this plea unless they amended their defences and paid expenses. Besides, the pursuer averred a special claim for damages, as she stated on record that the widow and other children were resident in England, and had not for years had much intercourse with the deceased. The damage suffered by her was therefore of peculiar magnitude. Even if she had no special claim she was entitled to bring this action alone. Under secs. 7 and 8 of the Anatomy Act 1832 ( supra) any nearest relative was entitled to object to the dissection of a body. The act was of the nature of a crime, and the present action was of the nature of an action of assythment. The action therefore did not fall within the rule laid down by Lord Watson in Darling ( supra).