Scottish Court of Session Decisions

Lord President—The question in this case is whether a wife who has been deserted by her husband, and has received no aliment from him for a considerable time, is entitled to claim compensation under the Workmen's Compensation Act 1897 from the employers of a son of the marriage, by whom she was in part at least supported, when he was accidentally drowned while in their employment.

The following appears to be the material facts—The appellant's son, while in the employment of the respondents, was drowned on 29th March last by falling into the Princes Dock, Govan, in, on, or about a factory belonging to the defenders, within the meaning of the Act. The appellant is not a widow, but she has been deserted by her husband, whose present address is unknown to her, although she believes that he is in some part of South Africa, and she has received no aliment or assistance from him for a considerable time.

At the time when her son was drowned she was dependent, and was the only person dependent, upon him, and she is only able to make a shilling or two occasionally by acting as a charwoman. Her son received from the respondents a weekly wage of 10s., which he regularly handed over to her.

The respondents plead that she has no title to sue, and the Sheriff-Substitute has sustained this plea.

The answer to the question depends upon the construction and effect of the provisions of the Workmen's Compensation Act 1897, by the First Schedule (1) ( a) (i) of which it is, inter alia, provided that where death results from the injury, if the workman leaves any “dependants” wholly dependent upon his earnings at the time of his death, the sum payable shall be ascertained as therein stated; and by section 7 of the Act it is, inter alia, declared that “dependants” means ( b) in Scotland such of the persons entitled, according to the law of Scotland, to sue the employers 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.” The answer to the question put in the case therefore in my judgment comes to depend upon whether the appellant would have been entitled according to the law of Scotland to sue the respondents for damages or solatium in respect of the death of her son if his death had been caused by fault on their part.

It is well settled as a general rule in the law of Scotland that a married woman whose husband is alive is not entitled to sue an action for damages arising from the death of one of her children. Thus in Whitehead v. Blaik ( 20 R. 1045) it was held that a married woman, even with the consent and concurrence of her husband, had no title to sue for damages in respect of the death of her son, her husband not having renounced his right of action. Again, in the case of Barrett v. North British Railway Company ( 1 F. 1139) the Court (following Whitehead v. Blaik) held that the mother of a deceased workman, whose parents were in part dependent upon him, was not entitled, the father being alive, to sue for compensation under the Act. It is not alleged in the present case that the appellant's husband is dead, but only that he has deserted her, so that the question arises whether his desertion is equivalent for the purposes of the present question to his death, and I am of opinion that it is not. In this connection I may refer to the case of Aitken v. Gourlay & M'Nab ( 5 F. 585), in which it was decided that a woman who had divorced her husband for desertion, and who alleged that she did not know where he was, or whether he was alive, had not a title to sue an action for damages for the death of one of the children of the marriage against persons to whose negligence it was alleged that the death was due.

The decided cases appear to me to establish that a person in the situation of the appellant is not, according to the law of Scotland, entitled to sue the employers of one of her children for damages or solatium in respect of the death of such child under the circumstances stated in the case, and I therefore think that she is not a “dependant” of her son within the meaning of section 7 of the Workmen's Compensation Act of 1897. But if this is so she is not entitled to insist in her claim under that Act.

For these reasons I am of opinion that the question put in the case should be answered in the negative.

Lord Adam—The answer to the question in this case depends on the construction of section 7 (2) “dependants” ( b) of the Workmen's Compensation Act 1897—[ His Lordship quoted the section]. It is obvious from this clause that before a claim can be insisted on under the Act (1) the claimant should be a person entitled according to the law of Scotland to sue the employer for damages or solatium in respect of the death of the workman, and (2) the claimant should be wholly or in part dependent upon the earnings of the workman at the time of his death. Now, there is no question that the claimant here was solely dependent on the deceased workman. Accordingly, the only question is whether the claimant is one of the persons who by the law of Scotland are entitled to sue the employer for damages or solatium in respect of the death of the workman. It is perfectly settled that if the claimant (the deceased man's mother) had been living with her husband she would have had no right to sue for damages. The right to bring such an action belonged solely and entirely to the husband. Here the claimant has been deserted by her husband. But the husband none the less retains his right to sue such an action of damages. The fact that the husband has not brought such an action does not affect the legal question or confer a right on the wife to sue. It is unnecessary to say more, as the matter is conclusively settled by the cases to which your Lordship has referred. Accordingly I am of opinion that the appeal should be refused.

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