Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) enacts—section 1 (1)—“If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the First Schedule to this Act.”

First Schedule—“(1) The amount of compensation under this Act shall be ( a) where death results from injury (i) if the workman leaves any dependants wholly dependent upon his earnings, a sum equal to his earnings in the employment of the same employer during the three years next preceding the injury, or the sum of one hundred and fifty pounds, whichever of these sums is the larger, but not exceeding in any case three hundred pounds… …”

Mrs Isabella Simpson or Henry, wife of Robert Henry, miner, Shettlestone, executrix-dative of the late Mrs Marion

Page: 945↓

Wilson or Simpson, claimed, qua executrix, compensation under the Workmen's Compensation Act 1906, from the United Collieries, Limited, Uddingston, in respect of the death of Alexander Simpson, a son of the late Mrs Simpson. The matter was referred to the arbitration of the Sheriff-Substitute at Hamilton ( Thomson), who assoilzied the defenders.

A case for appeal was stated.

The facts admitted or proved, as stated in the case, were—“(1) That the said Alexander Simpson was in the employment of the respondents as a miner on 9th July 1907; (2) that on said date he was knocked down by a train of waggons which were being shunted on the respondents' premises, and received injuries from which he died on 14th July following; (3) that his mother, the said deceased Mrs Marion Wilson or Simpson, who was, as is averred, dependent upon the said Alexander Simpson, died upon the 16th October 1907, without making any claim upon the respondents for the death of her son; (4) that a claim was first made on 10th December 1907, and was at the instance of the present applicant; (5)‘that shortly after the accident the present applicant's husband called on the respondent's cashier and inquired whether the accident had been reported and was informed that it had, and on his calling again a few days later he was informed that the respondents considered that no compensation was due in respect of the accident: That it is not proved that he was then acting on the instructions of his mother-in-law: That he made no claim nor intimated any intention to make a claim either on behalf of his mother-in-law or of the present applicant.”

The Sheriff-Substitute further stated—In these circumstances I found that the applicant, as executrix of the said Mrs Marion Wilson or Simpson, had no title to take proceedings for compensation under the Act, and I therefore assoilzied the respondents with expenses.”

The question of law was—“Whether, in the circumstances above set forth, the right of the mother of the deceased workman to make a claim and to take proceedings under the Act vested in the applicant so as to entitle her to insist in the present application.”

Argued for appellant—There was nothing in the Act to exclude the appellant's claim. Under sec. 1 (1) of the Act and the First Schedule, sec. 1 ( a) (1), a statutory right to a measured sum of money vested in the workman's dependants. The right vested by mere survivance and transmitted to executors. Such a right did not fall within the maxim actio personalis moritur cum persona— Peebles v. The Oswaldtwistle Urban District Council, [1896] 2 QB 159; Darlington v. Roscoe & Sons, [1907] 1 KB 219. That maxim was limited to claims founded on delict. The appellant's claim was not founded on delict but on statute. It was a claim for a civil debt, and such claims transmitted to and against executors— Auld v. Shairp, December 16, 1874, 2 R. 191, 12 S.L.R. 177; Bern's Executor v. Montrose Asylum, June 22, 1893, 20 R. 859, 30 S.L.R. 748 (Lord Young's opinion). A claim of this kind was not an “ actio” in the sense of the maxim— Darlington ( cit. sup.) at p. 230. Esto that the case of O'Donovan v. Cameron, Swan, & Company [1901], 2 I.R. 633, was adverse to the appellant's contention, that case was not binding in Scotland, and moreover was disapproved of in Darlington ( cit. sup.),— vide opinion of Cozens-Hardy, L. J., at 229 foot. The statute did not say that the claim must be made by a dependant himself, and if the appellant was entitled to the money there was nothing in the Act to prevent her taking steps to recover it. The fact that the statute had not provided for the case of a dependant dying before making a claim or recovering payment was a mere casus omissionis as to machinery of procedure which could be remedied by decision— Darlington ( cit. sup.), per Collins, M.R., at p. 227. In any event the silence of the statute was not to be read against the appellant.

Argued for respondents—The arbiter was right. The Act imposed no absolute duty to pay compensation, but merely a contingent liability, which became absolute on a claim being made. The appellant was not a person entitled to claim under the Act. Those entitled to claim were specified in section 13 of the Act, and the appellant was not within that class. The case of O'Donovan ( cit. supra) was rightly decided and should be followed here. The main ground of that decision was that the making of a claim by the dependant was a condition-precedent— per Collins, M.R., in Darlington. cit. sup., at p. 225. That was the intention of the Legislature. It was not intended to give a transmissible right, or the Act would have said so. The provisions of the First Schedule, especially sections 5 and 8, implied that mere survivance was not enough—the dependant must also claim. The compensation given by the Act was meant to be alimentary, and that implied that the right to claim it did not transmit to a dependant's representatives where the dependant had made no claim himself.

At advising—