Scottish Court of Session Decisions

These being the facts, the Sheriff, acting as arbitrator, has found that the respondent was partially dependent upon the earnings of the deceased, and has awarded compensation accordingly.

I am unable to agree with the learned Sheriff. There is, as I think, no ground for saying that at the time of the son's death the respondent was in any way dependent upon the earnings of the deceased. Each of the two persons, father and son, were earning wages quite sufficient for their maintenance respectively, and the father having no dependants cannot be said not to have had by his own earnings fully provided for his necessities as a working man. He was in fact earning a little more per week than the son was doing. It is difficult to see how, if it is a question of earnings, the father should have been dependent on the son, seeing that whatever the son might give to the father out of earnings would necessarily bring what he had for his own maintenance far below what, ex hypothesi, was necessary for the father's maintenance. If, as it appears from the case, the son made money by betting, and chose to give his father a share of his illgotten gains, I cannot see how that can affect the present question, which is whether the respondent made a loss by the death of his son in consequence of there no longer being a source of assistance to him from his son's earnings in the work at which he was killed, and on which source, from his own inability to earn wages himself, he was wholly or partially dependent. The father and son were making earnings for themselves of similar amount in each case. To say that in these circumstances the one was dependent on the other to the effect of making a substantial inequality in favour of the father seems to me to be an untenable proposition. I say this with full consideration of the case of Legget. That case decided nothing as regards the position here, in which the father stands in no special circumstances as regards other members of the family. He is a lone man with no burdens, legal or moral.

I therefore am of opinion that the question should be answered in the negative.

Lord Kyllachy—In this case we do not, I think, require to lay down or adopt any general rule as to what constitutes dependence or partial dependence in the sense of the statute. The facts are, it appears to me, such that applying any rule or test or standard which has yet been suggested, the claim here is outside the statute.

It is not necessary to go into particulars. But I may say this, that for myself I cannot conceive of a man of fifty-four without wife or family, and earning a wage of 25s. a-week, being in any reasonable sense dependent on a son residing in a different town and earning 24s. a-week. Exceptional cases may of course always be figured. But in any ordinary circumstances I do not, I confess, see how, as between a father and son placed as the father and son were placed here, there could be as regards maintenance, or even comfortable maintenance, either need of help on the one hand or obligation—legal or moral—to give help on the other. It may be true, as found by the Sheriff, that the son did for some purpose, and from some source, send his father from time to time sums amounting, it is said, on the average to 10s. a-week. But a parent who has a wage which is sufficient for his support is not, I think, in any reasonable sense dependent upon his family merely because they, or some of them, may have from time to time been in the way of making him presents, larger or smaller.

Moreover, in this connection it is impossible to overlook what is found by the Sheriff that this unfortunate “deceased practised a systematic course of betting which brought him a substantial profit.” It is at least probable that the 10s. a-week referred to was in whole or in part derived from that source—a source which I do not suppose can be taken into account in a question of dependence on earnings.

I have not, I should add, overlooked that the respondent (the father) has for some years been subject to attacks of rheumatism and bronchitis, and that his power of wage-earning may be to some extent thereby impaired. That may be so. But still, with all his disabilities, he has on an average of forty weeks been earning 25s. a-week, and, so far as appears, there is in present circumstances no prospect of any change for the worse.

Lord Kincairney—The question of law stated in this case is whether the applicant was within the meaning of the Workmen's Compensation Act in part dependent on his son who has been killed. The admitted facts are that the father and his son have earned for a considerable period nearly the same weekly wage, which was about £1, 4s. per week, and may be held to have been sufficient for the maintenance of each of them. But it is said that the applicant's capacity for work is precarious owing to bronchitis and rheumatism. The applicant has no dependant living with him. It seems probable that his deceased son did live with him, but I do not see that that is stated. The somewhat singular averment is made that the deceased made a substantial profit by a systematic course of betting. It is further stated that the deceased was in the habit of paying his father 10s. per week, but whether that payment was made out of his earnings or out of the profits of his betting does not appear. If, as I assume, he lived with his father, that payment may, I think, be regarded as made for board and lodging.

The applicant referred to various cases decided in England, among which may be noticed in particular Howell v. Vivian, 1901, 7 English Law Reports 36, and Legat v. Bank, which is somewhat closely in point. In that case a father was found entitled to a compensation for the death of his son. But in that case there were resident in family with the father the deceased himself, a cripple brother unable to earn anything, and a sister of this father's. That was the family to the

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