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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Trainer v. Robert Addie & Sons' Collieries, Ltd [1904] ScotLR 42_85 (22 November 1904)
URL: http://www.bailii.org/scot/cases/ScotCS/1904/42SLR0085.html
Cite as: [1904] ScotLR 42_85, [1904] SLR 42_85
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SCOTTISH_SLR_Court_of_Session
Page: 85↓
Court of Session Inner House Second Division.
[Sheriff Court at Airdrie.
v.
Facts:
In an arbitration under the Workmen's Compensation Act 1897, in which a widow, the mother of an only son who had been killed in the course of his employment, claimed compensation from his employers, it was proved that for the previous eighteen years the claimant had spent much of her time in prison, that during the four years preceding her son's death she was at liberty for only ten months, in the course of which she occasionally earned a little by outdoor work, but was otherwise entirely dependent on her son, who contributed five or six shillings a-week to her support, and that at the date of his death she was confined in an inebriate reformatory under sentence of the Sheriff for two and a-half years.
Held that the claimant at the date of her son's death was not wholly or in part dependent upon his earnings
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within the meaning of the Workmen's Compensation Act 1897. Cunningham v. James M'Gregor & Company, May 14, 1901, 3 F. 775, 38 S.L.R. 574, and Sneddon v. Addie & Sons' Collieries, Limited, July 15, 1904, 41 S.L.R. 826, distinguished.
Opinion ( per Lord Justice-Clerk) that the claim of a mother for compensation in respect of a son's death is different from the claim of a widow in respect of her husband's death, because a son is not liable to support his mother if either the mother is able to support herself or he is unable to support her without impoverishing himself.
Opinion ( per Lord Moncreiff) that before a claim under the Act can be sustained “there must in the first place be total or partial incapacity on the part of the alleged dependant to support herself by working; in the second place, she must have no separate means; and in the third place, a legal claim for support must be shown to have existed at the date of the death of the husband or son, whether that claim was being implemented or evaded.”
The Workmen's Compensation Act 1897, section 7, sub-section (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.”
This was an appeal upon a stated case from the Sheriff Court of Lanarkshire at Airdrie in an arbitration under the Workmen's Compensation Act 1897, in which Mrs Margaret Docherty or Trainer, widow, residing in Kirkgate, Irvine, claimant and respondent, claimed from Robert Addie & Sons' Collieries, Limited, Bellshill, respondents and appellants, £300 as compensation in respect of the death of her son Thomas Trainer, on 2nd December 1903, by an accident while in their employment.
The facts which the Sheriff-Substitute ( A. O. M. Mackenzie) found proved were, inter alia, as follows:—“(4) That the applicant is fifty-five years old, and is a widow, and that the deceased Thomas Trainer was her only child, and was unmarried. (5) That at the date of the said Thomas Trainer's death the applicant was confined in the State Reformatory for Inebriates at Perth, having been sentenced in the Sheriff Court at Ayr on 15th October 1901 to detention in said reformatory for two and a-half years. (6) That since the year 1885 the applicant has spent much of her time in prison under numerous sentences for theft and other offences, and during the four years preceding her son's death she was at liberty for only about ten months in all. A list of the convictions against her is contained in the appendix. (7) That during the said four years the applicant when out of prison lodged with relatives, to whom her son made payments for her maintenance, amounting on the average to five or six shillings a-week. (8) That during the said four years the applicant occasionally earned a little by out-door work, but was otherwise entirely dependent upon her son. (9) That in August of the year in which he died the applicant's son, in conversation with a relative, indicated a wish to take up house with his mother when she came out of the reformatory.”
On these facts the Sheriff-Substitute “found in law that the applicant was, in the sense of the Workmen's Compensation Act 1897, wholly dependent upon the earnings of her deceased son at the time of his death, and is entitled to compensation from the respondents in respect thereof on that footing.” He therefore awarded her compensation.
The question of law submitted for the opinion of the Court was—“Was applicant dependent upon the earnings of her deceased son at the date of his death within the meaning of the Workmen's Compensation Act 1897 and if so, was she ( a) wholly, or ( b) partially dependent thereon?”
Argued for the appellants—The Sheriff had erred in finding in fact that the mother was dependent upon the earnings of her deceased son at the time of his death. A mother was in a different position from a wife in respect of her claim for aliment; in order to claim aliment she must be able to show (1) that she is unable to support herself, (2) that her son is able to support her without impoverishing himself. The Sheriff had not found that she was incapable of supporting herself, but on the contrary that at the time she did earn a little— Turners Limited v. Whitefield, June 17, 1904, 41 S.L.R. 631; Sneddon v. Addie & Sons' Collieries, Limited, July 15, 1904, 41 S.L.R. 826; Rees v. Penrikyber Navigation Colliery Company, Limited [1903], 1 K.B. 259; Pryce v. Penrikyber Navigation Colliery Company, Limited [1902], 1 K.B. 221. All these cases were claims by widows in respect of the death of their husbands, except that of Rees, which was a fortiori of the present case. The punctum temporis to be considered was the date of the workman's death, when the present claimant was not being supported by her son at all.
Argued for the respondent— Rees was a case of English law, which was different from Scots law, on this matter. Dependence did not necessarily imply de facto support, and the Act had never been so interpreted, otherwise patients in infirmaries would be debarred from claiming compensation. It was sufficient that a legal right to support existed. The matter was already concluded by the authority of Sneddon's case and by Cunningham v. James M'Gregor & Company, May 14, 1901, 3 F. 775, 38 S.L.R. 574, and Legget & Sons v. Burke, March 18, 1902, 4 F. 693, 39 S.L.R. 448.
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In the first place, this is a claim against a son; and the son is not liable for his mother's support at all if on the one hand she was able to support herself, or if on the other hand she was not able to support herself in whole or in part but he was unable to support her from his earnings or without impoverishing himself. In regard to the first of these points, there is nothing in this case to satisfy me that this woman was not quite able if she behaved herself to earn her own livelihood. She seems to have gone through a long course of crime—in fact to be almost a hopeless drunkard and a hopeless thief—the result being that her two last times of. confinement have been two and a half years in an inebriates home and that she is at the present moment undergoing three years' penal servitude for theft. Now, that is not a case in which it can be said, unless there was evidence of the fact to the satisfaction of the Sheriff, that she was not able to support herself, and the case as stated by the Sheriff certainly does not set out anything of the kind. It does indicate that during the short periods she was out of prison she did occasionally do work, and that is just what one expects of a person who was a thief as she was. At times she would be prowling about to see what she would steal, and at other times she was doing outdoor work. It is not said that she was doing work at times, and that on account of weakness of body and bad health she had to give it up. All that is said is—“That during the said four years the applicant occasionally earned a little by outdoor work, but was otherwise entirely dependent upon her son.” I take it that that means simply this, that when she was not working and came to her son he was willing to give her a little money, as any dutiful son, however poor in circumstances, would be. That case is not one in which the Sheriff could hold in law that she was entirely dependent on her son. Further, the Act requires that she should be at the time of the death, which gives rise to the claim if there is one, dependent on the earnings of the deceased. Now, it is quite plain that she was not free at that time; she was in confinement as a consequence of her own evil practices, and not being supported by him, and nobody asking or suggesting that he should support her. She was being supported either by the local rates or by Government money. Therefore these two grounds seem to me sufficient to dispose of this claim adversely to the view expressed by the Sheriff-Substitute.
At the same time I do not think that the decision now to be pronounced necessarily conflicts with the decision in the cases of Cunningham and Sneddon referred to by the respondent's counsel.
I do not proceed on the ground that there is a difference in the liability of a husband and a son; it is not necessary to consider that alleged distinction. I think that before a claim of this kind can be supported there must in the first place be total or artial incapacity on the part of the alleged ependant to support herself by working; in the second place, she must have no separate means; and in the third place, a legal claim for support must be shown to have existed at the date of the death of the husband or son, whether that claim was being implemented or evaded. I think it will be found that in all the cases in which such a claim has been sustained these elements existed. In particular, they existed in the cases of Cunningham, and Sneddon. In the statute the definition of dependants is “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.” I agree that these words must receive a liberal construction, but I do not think we
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The Court pronounced the following interlocutor:—
“Answer the question of law by declaring that the applicant was not dependent upon the earnings of her deceased son at the time of his death in the sense of the Workmen's Compensasation Act 1897: Therefore recal the award of the arbitrator and remit to him to dismiss the claim.”
Counsel for the Claimant and Respondent— George Watt, K.C.— D. P. Fleming. Agents— Laing & Motherwell, W.S.
Counsel for the Respondents and Appellants— Salvesen, K.C.— Hunter. Agents— W. & T. Burness, W.S.