United Kingdom House of Lords Decisions

Lord Chancellor (Loreburn)—In this case there was a difference of opinion in the Court of Appeal, and a majority of that Court thought themselves bound by authority. The question is a question of fact—Was this father partially dependent upon his son? and it was for the County Court Judge to decide upon the evidence. The case of Main Colliery Company v. Davies, [1900] AC 358, was apparently regarded as though it decided that a father must be dependent upon his son in certain circumstances, but that case only decided that a father may be dependent upon his son's earnings.

Now in my opinion it is not right to say that the County Court Judge must exclude the cost of the maintenance of the son. He is quite entitled to say that the father is not dependent at all because he is not in a position to gain anything from the earnings of the son. The learned County Court Judge would be quite entitled to say, if he thought it were a fact, that the earnings of the son were 6s. 11d., and that he cost his father 6s. 11d. to keep. If the case of Osmond v. Campbell and Harrison, Limited, [1905] 2 KB 852, which was referred to, means anything contrary to this, then I dissent from it. Accordingly upon this point, if it were the only point, I should say that the County Court Judge was quite entitled to find that there was no dependency at all, inasmuch as the cost of the maintenance of the son was as much as the wages which he gave to his father.

But another point was referred to by Fletcher Moulton, L.J., and I think that it was argued fully on the part of the respondent in the Court of Appeal. The boy earned 6s. 11d. a week. Was the County Court Judge obliged to set against that sum the 6s. 11d. which his maintenance cost? That may depend upon the facts. If he was giving to his father services of value the County Court Judge was, in my opinion, entitled to take that into consideration, because that may have been the equivalent of the maintenance, and ought, perhaps, in his view to have been set against it. There is no rule of law that I know of to prevent the County Court Judge from saying—“I look at the whole of the facts,” and there is no rule of law to say that the County Court Judge must so marshal the receipts and the outgoings as to set off the whole of the maintenance against the earnings, and so to negative the fact of dependency. He may if he thinks right, and thinks that it is the truth say that though the earnings were 6s. 11d., and the maintenance was 6s. 11d., yet in return for the maintenance the deceased did service of value, so that the earnings were a clear gain, and that the applicant was dependent upon the earnings to the full extent, or to any qualified extent. The proper course is to look at all the circumstances, and say to what extent, if at all, was the father dependent upon his son's earnings.

Accordingly I cannot agree with the form of the order made by the Court of Appeal, but I agree that the case ought to be remitted to the County Court Judge simply that he may hear and decide it, and I think that he ought to understand from this House that in determining the question of the dependency of the father on the earnings of his son, he is not precluded by law from making a deduction in respect of the cost of maintenance, nor from taking into account, as against the cost of the son's maintenance, the pecuniary value, if any, of the services rendered by the son to the father in the conduct of the latter's business as a barber.

Lords Atkinson, Gorell, and Robson concurred.