Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sections 1 (4), 2 (1), and 13, are quoted in the rubric supra.

Mrs Jane Martin or Kyle, Glasgow, was dissatisfied with a determination of the Sheriff-Substitute of Lanarkshire (A. O. M. Mackenzie) acting as arbitrator under the Workmen's Compensation Act in an arbitration in which Edward M'Ginty, Mrs Jane Devlin or M'Ginty, Martha M'Ginty, and Isabella M'Giuty, with consent and concurrence of Edward M'Ginty, their father, and the said Edward M'Ginty, as tutor and administrator-inlaw of his pupil daughter Margaret M'Ginty (all except the first-named claimant having been sisted as parties by interlocutor dated 6th June 1910), claimed compensation from her, and she appealed by way of stated case.

The following narrative from the opinion of the Lord President gives the facts and the proceedings in the case—“The statement of facts in this case was in some respects defective, but it has been supplemented by a minute of admissions. Accordingly in the following narrative of the facts I avail myself in part of the minute and in part of the Sheriff's statement of the case. The accident in consequence of which a certain John M'Ginty died the same day took place on 5th October 1908, and on 30th December 1908 a firm of writers wrote to the employer on behalf of Edward M'Ginty, father of the deceased man, giving notice of the accident. Their letter ended with the following words—“The notice is given in terms of the Workmen's Compensation Act 1906 and in terms of the Employers' Liability Act 1880. We shall be glad to know if you have any proposal to make, otherwise our instructions are to raise an action, and this we will do unless we hear from you by Wednesday, 6th January 1909, at twelve o'clock.” Nothing being done they raised an action, and in the proceedings which followed the employer was assoilzied. That decision was pronounced towards the end of December 1909, more than a year after the accident. Absolvitor having been granted, Edward M'Ginty appealed to the Sheriff, and then took advantage of the Workmen's Compensation Act, sec. 1 (4), which is in the following terms—“… [ His Lordship read the sub section.] . . Availing himself of that sub-section he lodged in process on 7th March 1910 a motion in which, to quote the stated case, “he craved the Court to proceed with the action in terms of section 1, sub-section 4, of the Workmen's Compensation Act 1906, for the purpose of assessing the compensation due to the respondent Edward M'Ginty under the said Act by the appellant.” Proceeding upon that motion the Sheriff on 14th April 1910 dismissed the action as laid, but reserved it as a proceeding for assessing compensation, and found Edward M'Ginty liable in the expenses to the employer.

On 24th May 1910—that is, more than a year and a half after the accident—a minute was lodged in process on behalf of Mrs Jane M'Ginty, wife of Edward M'Ginty, and mother of the deceased workman; and on 9th June a similar minute was lodged on behalf of three sisters of the deceased, two being minors and one a pupil, with consent and concurrence of their father Edward M'Ginty. Mrs M'Ginty claimed compensation as having been totally dependent on the earnings of the deceased; the two oldest sisters averred partial dependency, and the youngest total dependency. Objection was taken to the sisting of those persons, but the Sheriff repelled the objection and allowed a proof of the claims, and having taken that proof found in fact—“1. The accident which resulted in the death of John M'Ginty arose out of and in the course of his employment with the appellant. 2. Edward M'Ginty, Mrs M'Ginty, and Martha M'Ginty were not to any extent dependent on the earnings of the deceased at the time of his death. 3. Isabella and Margaret M'Ginty were in part but not in whole dependent on the earnings of the deceased at the time of his death.”

In these circumstances the Sheriff awarded the sum of £70 as compensation

Page: 476↓

to Isabella M'Ginty and Edward M'Ginty as tutor-in-law of Margaret M'Ginty, allocating £20 to Isabella and the balance to Margaret, and refused to award compensation to the other claimants. The appellant moved him to deduct from the compensation awarded the expense caused by the respondent Edward M'Ginty bringing the action instead of proceeding under the Workmen's Compensation Act. The Sheriff declined to do so, holding that by the terms of section 1 (4) of the Act he was not bound but only entitled to make the deduction, and that as the successful claimants were not responsible for the raising of the action of damages, the present was not a proper case in which to exercise the power conferred by the Act.

The questions of law were—“(1) Was the Sheriff-Substitute entitled to sist the said Mrs Jane Devlin or M'Ginty, Martha M'Ginty, and Isabella M'Ginty, and Margaret M'Ginty, as claimants in the said proceedings? (2) Was the Sheriff-Substitute bound to deduct the extra expense caused by the unsuccessful action at common law and under the Employers' Liability Act from the sum awarded by him as compensation?”

The appeal was heard on 24th November 1910, but the case was continued in order to find out the date of the accident and death, and as to whether any claim had been made for the sisted claimants prior to the minutes, which did not appear from the stated case.

Argued for the appellant—The letter of 30th December 1908 was not a good notice of the accident on behalf of anyone except Edward M'Ginty himself. Accordingly the first requisite of section 2 (1) was not fulfilled. But in any case no timeous claim had been made for the mother and sisters. The minutes were lodged after the lapse of the statutory six months, and the respondents could not bring themselves under the exception in 2 (1) ( b) of “mistake, absence from the United Kingdom, or other reasonable cause.” The privilege given under section 1 (4) was limited to the raiser of the action. Reference was made to Blain v. Greenock Foundry Company, June 5, 1903, 5 F. 893, 40 S.L.R. 639. (2) If the sist of the claimants was right they must share in the expense of the unsuccessful action; if they took the advantage of the father's action they must share in the disadvantage.

Argued for the respondents—The letter of 30th December served what was the object of notice. It put the employer upon inquiry and thus prevented prejudice by stale claims— Thompson v. Goold & Company, [1910] AC 409, Lord Atkinson at 413, Lord Mersey at 419. Moreover, the father was tutor of two of the claimants and the curator of another. They submitted that once notice had been given on behalf of one dependant the employer must inform himself of who constituted the class of dependants, and that notice given by any member of the class of dependants was valid notice for the whole class. This view was supported by the terms of the Act of Sederunt of 26th June 1907, sec. 3. (2) The Sheriff-Substitute was not bound but merely entitled to make the deduction.

At advising—