Scottish Court of Session Decisions

Lord M'Laren—This is a claim by a mother as being a dependant upon one of her sons who met his death while in the service of the Dalmeny Oil Company. The applicant in this case it appears had five sons. The deceased was unmarried and lived with her, and as he defrayed the expense of the household she was of course maintained by him. The other four sons were married and had children, but apparently they were not asked to support their mother. The case does not state that they were asked, and indeed it is stated that in fact they did not contribute to her support. In these circumstances the Sheriff-Substitute of the Lothians decided that the respondent was at the time of her deceased son's death wholly dependent on his earnings. By desire of the parties the Sheriff puts the alternative question to us, whether the respondent was wholly or partially dependent upon this deceased son. Now the position of dependants under the Statute of 1906 is not exactly the same as it was under the first Workmen's Compensation Act. Instead of defining the liability by a reference to the class of persons who would be entitled to sue for damages or solatium, I venture to think a much more natural definition is now made, and that definition is one founded on membership of the family. But there is superadded a provision in favour of persons who are relations in blood, although not in law—I mean the relation of an illegitimate child to his father or mother is recognised. These variations in the phraseology of the new statute do not seem to me to affect the present question, because that depends upon the definition clause which defines “dependant.” The only general observation that I can make upon that definition is that I have always in reading it felt that the definition was a historical one. The test of dependency according to the literal reading of the clause is whether the person making the claim was in fact dependent upon the deceased in his lifetime. I just wish to quote the words which I think make that very clear—“‘Dependants’ means such of the members of the workman's family as were wholly or in part dependent upon the earnings of the workman at the time of his death, or would but for the incapacity due to the accident have been so dependent.” Now it appears to me that under this definition there is no relevancy in the inquiry—what was the legal obligation to maintain? because the obligation implied in the word “dependent” is made by the statute to depend upon whether the claimant was dependent at the time of his death wholly or in part. That can only mean a question of fact, whether the claimant in fact received complete maintenance or partial maintenance. It cannot depend upon legal obligation, because I do not know of any legal obligation which limits the claim against an individual to one for partial aliment. Any person standing in the necessary relation is entitled to receive full maintenance. Accordingly, if I were to follow my own view of the statute without heeding the decisions, I should be inclined to think that, given the relationship described in the statute, the only question was whether the deceased had fully recognised his obligation and had given full maintenance, or whether in fact the claimant had received maintenance from other sources, either from relatives, it might be, who were not bound to maintain her, or it might be by the claimant's own exertion. But then the decisions both in England and Scotland seem to have put a construction upon this part of the definition clause which is not expressed upon the face of it, because the decisions come to this, that wherever the deceased person was the nearest relative and was liable in complete maintenance, then it was not an answer to the claim founded on total dependency to say that he did not in fact recognise his obligation, and had, it might be for a time, been unable or unwilling to support the claimant at all. But I should wish to reserve my opinion as to how far that principle of decision should be carried. Certainly wherever it can be proved that the claimant had been supported partly by his or her own earnings, or had assistance from others, that would in my opinion reduce the case to one of partial dependency. But perhaps it is not an unreasonable presumption to say that where no other source of regular maintenance can be pointed to except that of the person who is bound to maintain, that is to be treated as a case of total dependency. The present question is, however, entirely different, and I cannot say, as the quoted cases represent themselves to my mind, that they furnish any assistance towards the decision of the present question, which is, where there are several persons all by law equally bound to give aliment, and where in fact support is given only by one of them, whether that is to be treated as a case of total or partial dependency. The principle which I venture to state as the one which commends itself to me is that the statute looks to the action of the deceased in maintaining his relative rather than to legal obligation. Of course the legal obligation must be there. He must be a person under the clause, because if he were a stranger in blood and unconnected even by illegitimate ties, then of course there would be no dependency at all under the statute. But, given the relationship, then I think the inquiry must always be, did the deceased in fact maintain his mother or child or whoever the person may be who is making the

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