Scottish Court of Session Decisions

This was an appeal upon a stated case from the Sheriff Court of the Lothians and Peebles at Edinburgh in an arbitration under the Workmen's Compensation Act 1897 between Robert Legget & Sons, tanners, Damside, Water of Leith, Edinburgh, appellants, and William Burke, mason's labourer, Edinburgh, claimant and respondent.

Burke claimed from the appellants the sum of £150 as compensation in respect of the death of his son Andrew Burke.

The facts which the Sheriff-Substitute ( Henderson) found proved or admitted were as follows Andrew Burke, the respondent's son, died upon 23rd April 1901 at the age of twenty-two from injuries which he received in consequence of an

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accident that day, which arose out of and in the course of his employment in the appellants' tannery, which is a factory within the meaning of the Workmen's Compensation Act. He was employed by the appellants at the date of his death as a labourer at a wage of 17s. a-week, and met with the accident which caused his death on the first day of his employment by them. He was the last surviving son and child of the respondent, and lived in family with him. The respondent, who is a widower, sixty-three years of age, is a mason's labourer, and earns, and has for the last three years earned, an average weekly wage of £1, 2s. 6d. In addition to himself and the deceased, the respondent at the time of his son's death had in family with him a sister who acted as housekeeper for him and the deceased, and had while so acting no other means of support, and a cripple brother who was unable to earn anything, but towards whose maintenance the respondent's other brothers and sisters contributed either in money or provisions. The deceased during his apprenticeship, when his earnings were 10s. a-week, was in the habit of contributing to the household expenses almost to the full extent of his earnings. After the expiry of his apprenticeship, which took place on 30th September 1899 until some nine weeks before his death, the deceased contributed more largely to the family expenses, his contributions amounting to between 16s. and 20s. a-week. His earnings during this latter time averaged £1, 9s. 11 1 2d. per working week. The respondent's sister had become housekeeper to the respondent and deceased, at the deceased's request, and her so acting saved the cost of a paid charwoman, who had received when so employed 2s. a-day. In consequence of the death of his son the respondent was unable any longer to keep up a house of his own, the deceased having after the expiry of his apprenticeship and while he was in full work, paid the rent (£9 a-year), taxes, and gas of the house they lived in, and the respondent has since been obliged to occupy a room in the house of a married sister, whither his housekeeper sister and his cripple brother also removed. For nine weeks prior to his death the deceased was out of work and earning no wages, during which time the household was dependent on the respondent's own earnings and upon what the housekeeper sister obtained by pawning her personal property. The respondent suffers from rheumatism, and is not therefore in the future certain to be able to work regularly at his occupation as a labourer.”

On these facts the Sheriff-Substitute held in law that the respondent, at the time of his son's death, was in part dependent on the earnings of the deceased, and assessed the compensation due to him at £75, for which sum he granted decree against the appellants, and also found them liable in expenses.

The question of law for the opinion of the Court was—“Whether in these circumstances the respondent at the date of the death of his son Andrew Burke was in part dependent upon the earnings of the said Andrew Burke in the sense of the Workmen's Compensation Act 1897?”

The Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37) enacts as follows:—Sec. 7 (2)—“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 the appellants—The Sheriff-Substitute had put a wrong interpretation on the words “in part dependent.” “Dependants” was defined insection 7 of the Act, sub-section 2 ( b), as meaning “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.” In the present case the deceased was not supporting his father, but was himself in receipt of support. The respondent was supporting his cripple brother from charitable motives, and his employment of his sister as housekeeper was solely for his own convenience. Therefore there was here no “family” in the sense used by the Lord Chancellor in the case of Davies (cited infra), for the obligation which the respondent had taken upon himself was purely voluntary. The legal obligations alone ought to be taken into account. The Sheriff-Substitute had also been influenced by facts which ought not to have weighed with him in deciding the legal question, e.g., the fact that the respondent was suffering from rheumatism and might not in future be able to work regularly at his occupation as a labourer. The question of what was meant by “dependants” had been considered so far as regards England in the case of Simmons v. White Brothers, March 11, 1899 [1899], 1 Q.B. 1005; and the Main Colliery Company, Limited v. Davies, June 22, 1900 [1900], A.C. 358; and as regards Scotland in Cunningham v. M'Gregor & Company, May 14, 1901, 3 F. 775, 38 S.L.R. 574.

Argued for the respondent—There were persons living in family with him, for his sister had become housekeeper to him and the deceased at the latter's request, and her so acting had saved the cost of a paid charwoman. The mode of the respondent's life must be looked at in order to see if there was actual pecuniary deprivation by the death of his son. Now, in consequence of his son's death the respondent had to give up his house and to occupy a room in the house of a married sister. The fact that the person alleged to be a dependant of a workman can maintain himself without the deceased's assistance does not of itself prevent him from being a dependant— Howell v. Vivian & Sons, November 8, 1901, 18 T.L.R. 36.

At advising—