Scottish Court of Session Decisions

This was an appeal in an arbitration under the Workmen's Compensation Act 1897 before the Sheriff-Substitute at Rothesay ( Martin) between Mrs Ann Cunningham, widow of David Cunningham, quarryman, Bearsden, as an individual and as tutor and administrator-in-law for her son Patrick Cunningham, claimant and appellant, and James M'Gregor & Company, quarry-masters, Corrie, Arran, respondents.

From the case stated by the Sheriff-Substitute it appeared that the appellant's husband met with an accident while in the employment of the respondents at their stone quarry at Corrie, Arran, which resulted in his death on 11th July 1900.

The Sheriff-Substitute in the case further stated as follows—“It was proved that the average wage earned by the deceased was £1, 8s. l0 3 4d. per week—amounting for 156 weeks to £225, 7s. 9d. It was also proved that the deceased had during that period represented himself to be an unmarried man, and lived quite separate from his wife and family, without any arrangement for maintaining them, and that the average sum contributed by him towards their support did not exceed £5 per annum. It was further proved that the appellant had no regular means of livelihood other than occasional employment and what was contributed by her relatives and the dole from her husband above mentioned, and that the pupil claimant was earning a small wage.”

In these circumstances the Sheriff-Substitute held as matter of law “that the appellant and her pupil child were not (within the meaning of the statute, section (1) (a)), wholly, but only partly, dependent upon the deceased at his death, and therefore entitled only to a sum reasonable and proportionate to the injury sustained by them.”

The Sheriff-Substitute assessed the sum at £15, being three times the sum received by the claimant during the last year of deceased's life, and apportioned that sum thus—£10 to the widow and £5 to the son.

The questions of law for the opinion of the Court were—“(1) Whether in the circumstances above stated the appellant and her pupil child were within the meaning of the statute, section (1) (a), partly dependent only; or (2) Whether in respect of the

Page: 575↓

deceased's common law obligation of support they were wholly dependent within the meaning of the Act.”

The Workmen's Compensation Act 1897 by the First Schedule 1 ( a) provides that the amount of compensation shall he where death results from the injury—“(i) if the workman leaves any dependants wholly dependent upon his earnings at the time of his death, a sum equal to his earnings in the employment of the same employer during the three years next preceding the injury,” or (ii) if he leave no such dependants “but leaves any dependants in part dependent upon his earnings,… such sum … as … may be determined … to be reasonable and proportionate to the injury to the said dependants.”

Argued for the appellant—It was admitted that the son of the deceased, who was earning a small wage, was only partly dependent upon him at the time of his death. But the Sheriff-Substitute was wrong in holding that the appellant was only partly dependent. She was legally dependent upon her husband, and the fact that he had failed to support her did not affect the question. If it had appeared that she was supporting herself the case might have been different; but the facts showed that she was chiefly living upon the charity of her relatives, with the addition of what she could earn by occasional employment, and the small sum contributed by her husband. In the sense of the statute she was wholly dependent upon him.

Argued for the respondents—The Sheriff-Suhstitute had found, as matter of fact, that the appellant was only partly dependent upon her husband; and that finding was supported by the specific facts stated as proved. It was impossible that she could have lived upon the annual contribution of £5 made by her husband, and for the rest she was therefore not dependent upon him.