Scottish Court of Session Decisions

The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), First Schedule, is in these terms:—“ Scale and Conditions of Compensation:— Scale.—(1) The amount of compensation under this Act shall be (a)—where death results from the injury—(i.)

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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 the sum of one hundred and fifty pounds, whichever of those sums is the larger, but not exceeding in any case three hundred pounds, provided that the amount of any weekly payments made under this Act shall be deducted from such sum; and if the period of the workman's employment by the said employer has been less than the said three years, then the amount of his earnings during the said three years shall be deemed to be 156 times his average weekly earnings during the period of his actual employment under the said employer; (ii.) if the workman does not leave any such dependants, but leaves any dependants in part dependent upon his earnings at the time of his death, such sum, not exceeding in any case the amount payable under the foregoing provisions, as may be agreed upon, or in default of agreement may be determined on arbitration under this Act to be reasonable and proportionate to the injury to the said dependants; and (iii.) if he leaves no dependants, the reasonable expenses of his medical attendance and burial, not exceeding ten pounds.”

This was a case stated for appeal by the Sheriff-Substitute ( A. O. M. Mackenzie) at Airdrie in an arbitration under the Workmen's Compensation Act 1897, in which John Hughes (respondent) claimed from the Summerlee and Mossend Iron and Steel Company, Limited (appellants), the sum of £150 in respect of the death of his son Edward Hughes. In the case the Sheriff-Substitute stated as follows:—“(1) That on 23rd September 1902 the respondent's son Edward Hughes, while in the employment of the appellants at their works in Coatbridge, sustained injury by accident arising out of and in the course of his employment, which resulted in his death; (2) that at the time of his death the said Edward Hughes lived in family with his father, and regularly paid over to him his whole wage, amounting to 18s. a-week, for the family maintenance, receiving back only one or two shillings as pocket-money; (3) that three other sons, John, Hugh, and Francis, also lived in family with their father; (4) that of these sons John and Hugh were at work, and earned respectively 25s. 4d. and 14s. a-week, and that each paid over the whole wage to his father for the family maintenance, receiving back a little as pocket-money; (5) that the respondent's average weekly wage at the time of his son Edward's death amounted to about 26s.; (6) that the respondent was in part dependent on the earnings of his said son at the time of his death, but that the amount of his dependency did not exceed 2s. 6d. a-week; (7) that the respondent has paid the sum of £7, 4s. in defraying his son's funeral expenses—and on these facts I found in law that the respondent is entitled to compensation from the appellants under the Workmen's Compensation Act 1897, and awarded the respondent the sum of £26, 14s. as compensation (being 2s. 6d. a-week for 156 weeks, and the before-mentioned sum disbursed by the respondent as his deceased son's funeral expenses), with interest at the rate of 5 per cent. per annum from 22nd January 1903 until payment, and found him entitled to £3, 6s. of expenses.”

The question of law for the opinion of the Court was—“Was the arbiter entitled to add to the compensation payable to respondent on account of his partial dependency the sum disbursed by the respondent in connection with funeral expenses of his deceased son?”

Argued for the appellants—If the Sheriff-Substitute had granted the claimant the sum awarded, and had not stated that it included £7, 4s. of funeral expenses, the appellant could have had nothing to say. But the Sheriff-Substitute had expressly explained that the award included £7, 4s. of funeral expenses, and under the Workmen's Compensation Act 1897 he had no power to include any sum for funeral expenses in the compensation awarded. It was only in the case dealt with in sub-section iii. of sec. 1 (a) of the First Schedule of the Act, where the deceased workman leaves no dependants, that funeral expenses could be an element of compensation under the Act. Under sub-secs. i. and ii. of the schedule the considerations with reference to which the amount of compensation was to be fixed excluded funeral expenses. The three sub-sections of the First Schedule defining the liability of the employer presented “three alternative cases which are mutually exclusive”— per Lord President Robertson in Fagan v. Murdoch, July 18, 1899, 1 F. 1179, 36 S.L.R. 921. The English case Bevan v. Crawshay Brothers, Limited [1902], 1 K.B. 25, while adverse to the contention of the appellants, was contrary to the decision in the English Courts in Dalton v. South-Eastern Railway Company (1858), 4 C.B. (N.S.) 296, on the construction of the Fatal Accidents Act 1846 (9 and 10 Vict. c. 93), sec. 6.

Argued for the respondent—The Sheriff-Substitute, in determining “the sum reasonable and proportionate to the injury to the said dependant” under sub-section ii., was at liberty to take into account the funeral expenses. The fact that the dependants had been compelled to pay these expenses was part of the injury in the statutory sense sustained by them. The decision of the Court of Appeal in England in Bevan v. Crawshay Brothers, Limited ( supra) was directly in favour of this view. Of course the arbitrator could not award a sum for funeral expenses over and above the limit prescribed by the schedule, but if the whole sum awarded by the arbitrator was within the limit, the funeral expenses were a proper element to be considered in ascertaining the sum proportionate to the injury. The observation of Lord President Robertson in Fagan v. Murdoch ( supra) as to the sub-sections of the First Schedule being mutually exclusive was made wholly with reference to the question before the Court in that case, viz.,

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whether compensation having been already awarded under sub-section a subsequent claim for compensation by partial dependants under sub-section ii. was competent. Lord President Robertson's observations had therefore no relevancy in a question as to the elements to be considered under the respective sub-sections in fixing the compensation.