Scottish Court of Session Decisions

The Workmen's Compensation Act 1897, section 1, sub-section (2) (b), enacts—“When the injury was caused by the personal negligence or wilful act of the employer, or of some person for whose act or default the employer is responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the workman may at his option either claim compensation under this Act or take the same proceedings as were open to him before the commencement of this Act; but the employer shall not be liable to pay compensation for injury to a workman by accident arising out of and in the course of the employment both independently of and also under this Act, and shall not be liable to any proceedings independently of this Act except in case of such personal negligence or wilful act as aforesaid.”

The interpretation clause of the Act, section 7, sub-section (2) provides—“Any reference to a workman who has been injured shall, where the workman is dead, include a reference to his legal personal representative, or to his dependants, or other person to whom compensation is payable.”

John Blain, rivetter, Glasgow; Mary Blain or Fleming, wife of Robert Fleming, brassfinisher, Greenock, with consent and concurrence of her husband; Catherine Blain or M'Lellan, wife of Dugald M'Lellan, blacksmith, Glasgow, with consent and concurrence of her husband; Robert Blain, labourer, London; Peter Blain, machineman, Gourock; Allan Blain, labourer, London; Jane Blain or Urie, wife of Daniel Urie, Glasgow, with consent and concurrence of her husband; Jessie Blain or Cree, wife of James Cree, civil engineer, Glasgow, with consent and concurrence of her husband; and James Blain, apprentice boilermaker, Gourock, raised an action against the Greenock Foundry Company, engineers, boilermakers, and ironfounders, Greenock, and John Scott and Robert Sinclair Scott, the only known partners of said firm. The conclusion of the action was that the defenders should be ordained to make payment of £25 to each of the pursuers, John Blain, Mary Blain or Fleming, Catherine Blain or M'Lellan, Robert Blain, Peter Blain, Allan Blain, Jane Blain or Urie, and Jessie Blain or Cree, and of £50 to the pursuer James Blain.

The pursuers averred that they were children of the deceased William Blain, boilermaker, Greenock, that William Blain was killed by the fall of a piece of machinery on his head while he was employed in the service of the defenders on 2nd April 1902, and that his death was occasioned by the fault of the defenders. They further averred—“(Cond. 5.) The pursuers have suffered in their feelings, and otherwise sustained damage by the death of their said father. In particular, the pursuer James Blain, who is an apprentice and resided with and was partly supported by his father, has sustained special loss. The defenders have been asked to compensate the pursuers, but have declined to do so, and the present action has thus been rendered necessary.”

The defenders denied fault, and (Ans. 5) “explained that on 22nd April proceedings were instituted under the Workmen's Compensation Act 1897 at the instance of Mrs Margaret Thomson or Blain, widow of the said deceased William Blain, residing at No. 60 Drumfrochar Road, Greenock, against (1) the present defenders, (2) William Blain secundus, presently an inmate of Smithston Asylum, under the charge of the Parish Council of Greenock, (3) the said Parish Council, (4) the pursuer James Blain, apprentice boilermaker, residing at 67 Shore Street, Gourock. After sundry procedure, in the course of which the said James Blain lodged a claim on the amount admittedly due under the said Act in respect of the death of the said William Blain, the Sheriff, as arbitrator, issued an award, a certified copy of which is produced herewith. The Sheriff awarded the sum of £276, 18s. as compensation due under the Workmen's Compensation Act 1897, by the present defenders in respect of the death of the said William Blain, and he also found that the said James Blain had no title to insist in the proceedings, as he was only partially dependent on the deceased. The present defenders have paid the said sum of £276, 18s. in terms of the interlocutor of the Sheriff-Substitute, and receipts for that amount and for the expenses decerned for are also herewith produced.”

The pursuers pleaded—“(1) The pursuers' father having been killed through the fault of the defenders, the pursuers are entitled to reparation. (3) The defences, so far as founded on the proceedings under the Workmen's Compensation Act 1897, are irrelevant.”

The defenders pleaded, inter alia—“(1) The present defenders having, as condescended on, already paid compensation under the Workmen's Compensation Act 1897 in respect of the death of the deceased William Blain, the present action is incompetent and should be dismissed. (2) Separatim—The pursuer James Blain having claimed compensation under the said Act, is barred from now proceeding at common law against the present defenders.”

On 27th February 1903 the Lord Ordinary ( Kincairney) pronounced the following interlocutor—“Repels the first and second

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pleas-in-law for the defenders, and assigns Tuesday the 10th day of March next as the diet for the adjustment of issues for the trial of the cause.”

Note—“This is an action of damages brought against the Greenock Foundry Company by the children of William Blain, who was a boilermaker in the employment of the Greenock Foundry Company, and who was killed by the fall of a piece of machinery on his head when he was in the service of the company. The pursuers aver that his death was occasioned by the fault of the Foundry Company. It is not expressly averred that the pursuers are the whole of the children of William Blain, but I assume that they are, with the exception of William Blain junior, presently an inmate of Smithston Asylum. If there are any other children I suppose the defenders would have said so. William Blain's widow is not a pursuer.

“It is not argued that the action is irrelevant, but the defenders have pleaded—‘(1) The present defenders having already paid compensation under the Workmen's Compensation Act 1897 in respect of the death of the deceased William Blain, the present action is incompetent. (2) Separatim—the pursuer James Blain having claimed compensation under the said Act, is barred from now proceeding at common law.’

The proceeding referred to in these pleas is stated in answer 5 of the record. was a proceeding under the Workmen's Compensation Act at the instance of the widow of William Blain against, inter alia, the Greenock Foundry Company, the said William Blain junior, and James Blain, one of the pursuers who lodged a claim in the proceedings, which resulted in an award of £176, 18s., as compensation due under the Act to the widow, and £100 as due to William Blain junior, as a dependant, and in a finding that James Blain had no title to insist because he was only partially dependent on the deceased, and was excluded by the widow and William Blain junior, who were wholly dependent, as decided in Fagan v. Murdoch, July 18, 1899, 1 F. 1179.

It has not been averred that any of the pursuers were wholly dependent on the deceased, or would have a title to claim compensation on account of his death under the Workmen's Compensation Act.

It has been decided that actions of damages for solatium, such as this action, by one of several persons having a title to sue are incompetent unless, as I understand the judgment, these are for some sufficient reason unable to sue— Pollock v. Workman, January 9, 1900, 2 F. 354. The Court in so deciding referred to and adopted the dictum (practically to that effect) of Lord Watson in Darling v. Gray & Son, May 31, 1892, 19 R. (H.L.) 31. In this case all the parties who have a title to sue this action are pursuers except the widow and William Blain junior, who are very clearly barred from suing because they have recovered compensation under the Workmen's Compensation Act. I take it to be quite clear that they could not sue this action, and are in the same position as parties who have given up their claims; and I think that this action complies with the principles affirmed in Darling v. Gray, and that therefore there is no good objection at common law to its competency.

But the defenders maintain that it is incompetent because of the proceedings at the instance of the widow under the Workmen's Compensation Act. They cited Campbell v. Caledonian Railway Company, June 6, 1899, 1 F. 887; Little v. M'Lellan, January 16, 1900, 2 F. 387; and Hunter v. Darngavil Coal Company, October 23, 1900, 3 F. 10. But these three cases decide no more than that parties cannot, after following out proceedings under the Workmen's Compensation Act, raise a second action of damages at common law, which seems plain enough. But they do not decide that an action under the Workmen's Compensation Act by one pursuer can bar an action for compensation at common law by a different person. I think, indeed, that a claim under the Workmen's Compensation Act by one person might bar an action, either under that Act or at common law, by another person or persons having the same title to maintain an action under the Act. I think that an examination of the clauses in the Workmen's Compensation Act might warrant that conclusion. But I am unable to see that an action under the Workmen's Compensation Act can possibly bar an action at common law at the instance of pursuers who had no title to sue an action under the Workmen's Compensation Act, and could not possibly be represented by one who adopted proceedings under the Act. I have carefully studied the Act and its schedules, and the Act of Sederunt which followed, and think that they do not warrant any such conclusion. Actions of damages for solatium are no doubt not favoured by the law, but must be allowed unless abolished by statute.

The pursuer James Blain is in a special position, because he made a claim under the former proceedings. But the result was that it was found that he had no title. His claim was not repelled on its merits, but his title was denied, and I think that his position is therefore not different from that of the other pursuers.

On the whole, I am of opinion that the Act affords no sufficient ground for the defenders' pleas 1 and 2, and that they should be repelled.”

The defenders reclaimed, and argued—If their first and second pleas were repelled employers would be held to be liable both under the Workmen's Compensation Act and independently of it. It was contrary to the policy of the Act that an employer should pay twice over. The Act supplied not an additional but a substituted remedy. The Act defined the employer's liability; and proceedings taken under the Act determined the liability of the employer for all time. Partial dependants had been ruled out where compensation had been found due to persons wholly dependent on the deceased— Fagan v. Murdoch, July 18, 1899, 1 F. 1179, 36 S.L.R. 921. Further,

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independently of the Act there could be only one action at the instance of relatives for reparation in respect of the death of their husband and father. The proceedings under the Act had therefore excluded any additional action— Pollock v. Workman, January 9, 1900, 2 F. 354, 37 S.L.R. 270. In any event, the pursuer James Blain having claimed compensation under the Act of 1897 was barred from insisting in the present proceedings.

Argued for the pursuers and respondents—The Workmen's Compensation Act 1897 did nothing to abrogate the employers' liabilities either at common law or under prior statutes. The title to claim under the Act of 1897 was quite different from the title of a pursuer at common law or under the Employers Liability Act. The title under the Act of 1897 was propinquity plus dependence. The title at common law was relationship plus the mutual right of support. At common law the remedy was based on fault, while under the Act of 1897 the remedy was based on employment. Common law remedies were not taken away by the Act of 1897; indeed, they were expressly reserved in section 1 (2) ( b). The section where it provided that the employer should not be liable to pay compensation both independently and under the Act dealt solely with the workman himself or with dependants who were entitled to compensation under the Act. But the common law rights of parties who were not entitled to compensation under the Act were left untouched. The title to claim of James Blain had been negatived in the proceedings under the Act. He therefore had never been a party to them, and was in the same position as the other pursuers.

At advising—