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Cite as: [1904] SLR 41_631, [1904] ScotLR 41_631

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

[Sheriff-Substitute at Hamilton.

Friday, June 17. 1904.

41 SLR 631

Turners Limited

v.

Whitefield.

Subject_1Master and Servant
Subject_2Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), sec.7 (2)
Subject_3Dependants
Subject_4Wholly or in Part Dependent — Husband Living Apart from and Not Supporting Wife.
Facts:

In an arbitration under the Workmen's Compensation Act 1897, in which the widow of a workman claimed compensation from his employers on account of the death of her husband while in the course of his employment, it was proved that the spouses had separated by mutual consent six months after their marriage in October 1897, and thereafter, till the husband's death in September 1903, had only had three meetings—all quite casual—on each of which occasions the husband had given the wife five shillings; that otherwise the husband had not contributed to the maintenance of his wife, who had lived with some of her illegitimate children, and had supported herself by keeping house for one of them and doing occasional washing; that at the date of the husband's death the wife was physically unfit to do anything for her own support, and was being maintained in the illegitimate child's house.

Held that the claimant at the date of her husband's death was not wholly or in part dependent upon his earnings within the meaning of the Workmen's Compensation Act 1897, section 7 (2).

Headnote:

This was an appeal upon a stated case from the Sheriff Court of Lanarkshire at Hamilton in an arbitration under the Workmen's Compensation Act 1897 between Turners Limited. coalmasters, StaneColliery, Shotts, Lanarkshire, appellants, and Mrs Isabella Gillies or Whitefield, widow, residing at 744 London Road, Glasgow, claimant and respondent.

Whitefield claimed from the appellants £300 as compensation in respect of the death of her husband George Whitefield.

The facts which the Sheriff-Substitute ( Thomson) found proved or admitted were as follows—“(1) That the applicant is the widow of the deceased George Whitefield, to whom she was married on 4th October 1889; (2) that about six months after the marriage the spouses separated of mutual consent, and have never since cohabited, the deceased having lived with his four children by a former marriage (who are all married, and were not dependent to any extent on the deceased at the time of his death), and the respondent with some of her illegitimate children (of whom she has six to two different men, all born prior to her marriage with the deceased); (3) that since their separation the spouses had only three meetings—all quite casual—and on each of these occasions the deceased gave the respondent five shillings, and beyond
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this they have had no intercourse whatever; (4) that the deceased never mentioned the respondent's name to his children, who believed that she was dead; (5) that the respondent supported herself by doing occasional washing and by keeping house for one of her illegitimate sons, but that she is now, and was at the date of the death of her husband, physically unfit to do anything for her own support, and has no means of support whatever, being maintained in the house of the son referred to.”

On these facts the Sheriff-Substitute held that the respondent was wholly dependent upon her husband at the time of his death, and he assessed the amount of the compensation due to her at £156, 19s. 6d., for which sum he gave decree against the appellants.

The question of law submitted for the opinion of the Court was—“Was respondent dependent upon the earnings of her late husband within the meaning of the Workmen's Compensation Act 1897 so as to entitle her to compensation from the appellants?”

The Workmen's Compensation Act 1897, sec. 7 (2), inter alia, enacts—“‘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 had erred in finding in fact that the wife was dependent upon the earnings of the husband when there was no evidence to support such a finding. The statute did not give compensation to all who by the law of Scotland could claim damages or solatium, but only to those dependent upon the earnings of the workman at the time of his death. Such dependency must be established— Rees v. Penrikyber Navigation Colliery Company, Limited, December 13, 1902, 87 L.T. 661; Main Colliery Company v. Davies [1900], A.C. 358, and the proper test was whether the earnings formed the source of maintenance— Pryce v. Penrikyber Navigation Colliery Company, Limited [1902], 1 K.B. 221. It was impossible to find dependency where the parties had for years been living apart and had had no communication whatever.

Argued for the respondent—The question in this case was one of fact, and the Sheriff had had sufficient evidence before him to reach his conclusion— Simmons v. White Brothers, 1899, L.R. [1899], 1 Q.B. 1005; Legget & Sons v. Burke, March 18, 1902, 4 F. 693, 39 S.L.R. 448. The husband need not be living with the wife or alimenting her in order to give her a claim— Cuningham v. M'Grigor & Co., May 14, 1901, 3 F. 775, 38 S.L.R. 574. Besides, the statute did not use the words “supported by” but “dependent upon,” which had an entirely different meaning. The wife here was not self-supporting, and she could not be dependent on her illegitimate son— Clarke v. Carfin Coal Company, July 27, 1891, 18 R., H.L. 63, 28 S.L.R. 950. She must therefore have been dependent upon the husband.

At advising—

Judgment:

Lord President—The question of law stated for our opinion is, Was the respondent dependent upon the earnings of her late husband, at the time of his death on 14th September 1903, within the meaning of the Workmen's Compensation Act 1897 so as to entitle her to compensation from the appellants?

The Sheriff has answered this question in the affirmative, and as the average weekly earnings of the deceased were 20s. 1 1 2d., he has found the respondent entitled to £156, 19s. 6d. in name of compensation.

It was stated by the Lord Chancellor, in giving judgment in the case of the Main Colliery Company, Limited v. Davies, 1900, A.C. 361, that the question whether a person was a dependent in the sense of the Act is a question of fact. The respondent in the present case was not supported by nor was she receiving any contribution towards her support from the deceased, and it appears that she was not to any extent relying upon him for her support. In other words, she was not in fact dependent upon him, and I am therefore of opinion that she was not dependent upon his earnings within the meaning of the Workmen's Compensation Act 1897 so as to entitle her to compensation from the appellants. For these reasons I consider that the question put in the case should be answered in the negative.

Lord Adam—The question in this case arises under section 7 (2) of the Act, and is whether the respondent was wholly or in part dependent upon the earnings of her husband at the time of his death in the sense of the Act. It appears to me that this is entirely a question of fact, the question being whether she was at the time of her husband's death dependent upon his earnings for support either by receipt of money or subsistence. In this case there is no evidence that she was dependent on her husband's earnings at his death. On the contrary, the facts found show that she separated from her husband some fourteen years ago, when she cast in her lot with some illegitimate children of her own, by whom, and partially by her own exertions, she was being maintained at the time of the death. I do not think that the fact that the husband was under a legal obligation to support her makes any difference; it does not alter the fact that she was not dependent on his earnings at the time of his death. I therefore think that the Sheriff's judgment is wrong, and that the questions should be answered in the negative.

Lord Kinnear—I am of the same opinion. The question whether the respondent was dependent upon the earnings of her husband is a question of fact, but when all the facts are ascertained in detail, as they have been ascertained by the Sheriff, the question still remains whether the position of

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this woman, as established by these facts, answers to the description of “dependent” in the statute or not. I agree with what has been said by Lord Adam, that the question does not depend merely upon the legal liability of a husband to support his wife, because the section in question requires that two conditions shall have been satisfied. In the first place, it is provided that the person said to be a dependent shall 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;” that condition is satisfied when the woman claiming compensation is in the position of a wife who is legally entitled to be supported by her husband. But then the statute goes on to prescribe as a second condition that the claimant must be such a person among those already described as was “wholly or in part dependent upon the earnings of the workman at the time of his death.” I do not think it necessary to define the word “dependent” more exactly than the statute defines it, but I am not prepared to say that its meaning is exhausted when it is said to cover those who were in fact supported by the deceased workman up to the time of his death. I think it quite possible that questions of greater difficulty might arise than any that we have to decide in this case. But it is sufficient to say that in no reasonable sense could this woman be said to be dependent upon her husband, whether that means relying upon him for support or actually supported by him.

Lord M'Laren was absent.

The Court answered the question in the negative and sustained the appeal.

Counsel:

Counsel for the Appellants— Salvesen, K.C.— Hunter. Agents— W. & J. Burness, W.S.

Counsel for the Respondent— G. Watt, K.C.— Munro. Agents— St Clair Swanson & Manson, W.S.
1904