Dick v Burgh of Falkirk
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Viscount Dilhorne,Lord Diplock,Lord Kilbrandon,Lord Edmund-Davies |
| Judgment Date | 26 November 1975 |
| Judgment citation (vLex) | [1975] UKHL J1126-2 |
| Court | House of Lords |
| Docket Number | No. 1. |
| Date | 26 November 1975 |
[1975] UKHL J1126-2
House of Lords
Lord Wilberforce
Viscount Dilhorne
Lord Diplock
Lord Kilbrandon
Lord Edmund-Davies
My Lords,
On 7 July 1969 Robert Dick, employed by the respondents as a labourer, was seriously injured when a door at the back of the wagon on which he was working came down and struck him on his head. On 31 May 1972 he raised an action against the respondents claiming damages on the ground that his injuries had been brought about by the negligence of a fellow employee. He claimed £15,000 under the heading of reparation for loss, injury and damage sustained in the accident. On 22 March 1973, the action still being depending, Robert Dick died and by Interlocutor dated 24 August 1973 his widow, Mrs. Laura Dick, the present appellant, as executrix-dative of the deceased, was sisted as party pursuer in the action. No question arises as to the right of the appellant to continue the action in her capacity as executrix. The present appeal arises out of a Minute of Amendment lodged by the appellant by virtue of which she sought to claim damages, not only as executrix of the deceased, but also as an individual. As executrix she sought damages of £20,000 for loss, injury and damage suffered by the deceased in respect of solatium, patrimonial loss and shortening of life. As an individual, she seeks to claim £15,000 for loss, injury and damage which includes solatium and loss of support. It is not necessary to understand the relation of these two sums or the difference between the £20,000 and the £15,000 claimed by Mr. Dick.
The question in the appeal is whether the widow's claim in her own right is incompetent: that it is so has been held by the Lord Ordinary and by the Second Division of the Court of Session. In reaching this conclusion both courts considered that they were bound by the decision of this House in Darling v. Gray & Sons 19 R. (H.L.) 31 reported sub nomineWood v. Gray & Sons [1892] A.C. 576. It is clear, and the contrary has not been argued, that the present case is indistinguishable from Darling v. Gray and that the courts below were correct in following the latter. This House is now asked to review and overrule that case which has stood for over 80 years.
My Lords, in approaching this question I start from two propositions as to the law of Scotland which I think to be clearly established.
First. When, once an action for damages for personal injury has been raised in the courts, the pursuer dies while that action is depending, the right to continue with that action—including any claim for solatium—passes to his executor. ( Neilson v. Rodger (1853) 16 D. 325), Stewart v. London Midland & Scottish Railway Co. 1943 S.C. (H.L.) 19.)
Second. The common law of Scotland gives, and has long given, to a limited class of relatives a right of action, in respect of the death of the deceased, for solatium and patrimonial loss. The solatium, in such a case, as hardly needs stating, is for the grief and suffering of the relatives as a consequence of the death. And the patrimonial loss is calculated by reference to their loss of dependency on the basis of what they would have received after the date of death if the deceased had remained alive. This action, in Scotland, has arisen by judicial decision sometimes described as quasi-legislative in character. It is available only to the widow and a limited class of near relatives of the deceased, and not, as under tthe statutory law of England, to dependants. (See Eisten v. North British Railway Company (1870) 8 Macph. 980.)
It is perhaps for this reason that the action has been described as "anomalous", and it is certainly clear in my opinion that extension of the class of relatives who may sue cannot be made by judicial decision. No such extension is sought in the present case.
I add one other point which I think necessary for the understanding of the legal position. It is, I venture to think, established by authorities, which for the present purposes I take to be correct, that a relatives' action cannot be maintained unless and to the extent that, had the deceased been alive, an action could have been maintained by the deceased himself. Thus, if the deceased has contracted out of any claim ( McKay v. Scottish Airways Ltd. 1948 S.C. 254) or has settled his claim, or if it has been adversely decided upon in his lifetime, or if he has been guilty of contributory negligence, the executor's claim is (though Lord Cooper found this difficult to understand ( McKay's case, p. 264)) correspondingly barred or reduced. This circumstance has given rise to discussion whether the executor's claim is derivative or independent of the claim of the deceased himself. In fact, in one sense or another, it is both. It is derivative in the sense that its validity—or invalidity—may depend upon that of any claim which would have been open to the deceased. But it is independent in the sense that, given that the deceased could himself have maintained the action, the relatives' claim is for damages in their own right, i.e. for damages sustained by them. Yet even this requires qualification, since it is undoubted that the quantum of patrimonial loss for which the relatives may recover may be affected by the amount of damages recovered or recoverable by the deceased himself.
My Lords, this is a brief analysis which I should not venture to make were it not supported by the thorough examination of the law made by my noble and learned friend Lord Kilbrandon, which I have had the great benefit of considering. I have thought it necessary before I felt able to evaluate the reasons given in this House in 1892 for excluding the relatives' action in such a case as this, i.e., where there is pending an action commenced by the deceased. From what I have said, it appears that the exclusion has little to commend it in the interests of either theory or justice. A man has been injured by (assumedly) the negligence of another: he suffers injuries and dies. Quite separate heads of damage have been sustained, on the one hand by the deceased himself, on the other by his relatives. The claim by the deceased arises upon the act of negligence followed by damage. The measure of damages, as regards loss of wages, is according to what he would lose had he lived until his death occurred by natural causes. The claim by his relatives arises upon the death, if that follows as the result of the injury; it may be by far the more substantial, yet, if Darling v. Gray is to be followed, it is to be excluded altogether by a decision taken by the deceased's executor—who may be and may represent quite different persons from the relatives. To allow each action to proceed, each for its own claim, seems to be elementary justice. And I cannot state the reasons for this better than in the words used by Lord Wood in 1853. Dealing with a possible case the converse of the present he said:
"There may be cases in which the two claims (supposing them to exist) would by the death centre in the same parties. And granting it were so, I desiderate any principle for holding that the one, which is a claim in right of the deceased, and was part of his or her estate, and may have been made the subject of an action for its vindication, and which in the general case passes to, and vests in, the personal representatives as such, should be superseded, and a vesting in them either prevented, or a divestiture produced, because another claim has arisen to the same parties upon an emerging fact, which is distinct from those on which the first is or could be founded, and which claim (of whatever it may be compounded) is not to any extent derived by succession from the deceased, but belongs to them in their own separate and independent right."
( Neilson v. Rodger 16: D. 325, 330). This right to sue must, if justice is to be done, be subject to two conditions: first that there be no duplication of damages awarded, second that procedurally means exist for having, whenever possible, both actions tried together. There is no difficulty at the present time as to the second condition and as to the first my noble and learned friend Lord Kilbrandon satisfies me that it can be met.
So I turn to consider the decision in Darling v. Gray & Sons. The rationes of decision are, as has often been observed, difficult to state with clarity. But I think that the following must be the arguments which appealed to the House. First it is said that the relatives' right is a peculiarity of Scottish law and ought not to be extended: Lord Watson quotes here from the opinion of Lord President Inglis in Eisten's case ( 8 Macph. 980, 984)—it was to be called "anomalous" by Lord Thankerton in Stewart v. North British Railway Co. (1870) 8: R. 1055, 1061. Lord Watson does not expand upon this point, but there cannot be much doubt that he had in mind that the action is an exception to the normal rule which disallows actions based on the death of a person, and an exception in favour of an arbitrary class of relatives. Such a description of the relatives' action, supported by such eminent judges, must be a just description and I would respectfully agree that, judically, we ought not to extend it, but then one must ask what is an extension? Certainly it would be an extension to allow the action to other relatives—it was just this kind of extension which was discountenanced eo nomine by Lord President Inglis in Eisten's case (u.s.) but I find difficulty in seeing how to allow the action concomitantly with the executors' action is an extension at least unless the previous law had limited the relatives' action to the case where no executor's suit is pending. But the law had not done this, expressly or impliedly. Therefore I...
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