Dickson v National Coal Board
| Jurisdiction | Scotland |
| Judgment Date | 14 December 1956 |
| Docket Number | No. 10. |
| Date | 14 December 1956 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Migdale.
ReparationDamagesActio injuriarumAction by father for damages for death of sonFather not indigentWhether entitled to damages for loss of actual support from voluntary payments by son.
In an actio injuriarum at the instance of a father for the death of a son aged 16, the pursuer, who was aged 43 and earning 9 a week in steady employment, claimed damages for, inter alia, the loss of weekly contributions to the family budget made voluntarily by the son from his wages. The Lord Ordinary having made a substantial award of damages under this head, the defenders argued in a reclaiming motion that this should be recalled, on the ground that, in order to be entitled to damages for loss of support, the pursuer in anactio injuriarum must show that by the death of the deceased he became in need of support, and further that the measure of damages in that event was the amount which the deceased would have been bound to pay the pursuer in fulfilment of his natural obligation to aliment him.
Held, in affirming the Lord Ordinary's award, that the pursuer in an actio injuriarum was entitled to damages for loss of actual support and that his claim was not limited in the manner contended for by the defenders.
Authorities reviewed.
John Dickson brought an action of damages against the National Coal Board concluding for payment of 1500 in respect of the death of his son, John Dickson, who was killed in an accident while working in the employment of the defenders. For the purpose of the action the defenders admitted liability.
The following narrative of the facts material to the question of damages is taken from the opinion of the Lord Ordinary (Migdale):"The son, John Dickson, hereinafter referred to as the deceased, died on 25th August 1954 as a result of an accident on the previous day, in the defenders' colliery at Newcraighall, Edinburgh, where he was employed as a trainee miner. The defenders admit, for the purpose of this action, that the death of the deceased was due to the fault of their servants. At the time of his death the deceased was about 16 years of age. The pursuer claims a sum of 1500. He stated that he lives in family with his wife, the mother of the deceased, and that they have four surviving children, Robert, now aged 17, and Margaret, now aged 16, both of whom are working, Ivy, aged 14, and Doris, aged 7. Counsel agree that there are three factors to be taken into account: (1) outlays in respect of the funeral expenses, (2) a sum in name of solatium as compensation for grief and suffering, and (3) an element in respect of patrimonial loss. Parties are agreed that the figure of 50 is appropriate to cover funeral expenses. Counsel on both sides left the amount of solatium to me as more or less a jury question. The most difficult element concerns the patrimonial loss. Mr Kissen, for the pursuer, said that the evidence established that the deceased was in fact contributing about 2, 7s. a week to the family budget. He handed his weekly pay packet over to his mother. She gave him back a sum for pocket money, spent another sum, which she estimated at about 30s. a week, on his food, and a third sum upon his clothing. The balance both father and mother said was somewhere about 2, 7s. This went into the family exchequer and was about 122 a year. Had the boy lived, he would now have been about 18 and it was reasonable, said Mr Kissen, to anticipate that he would have continued to live in family till he was about 20. On this basis the patrimonial loss could be assessed at 250 to date with, say, 240 as prospective loss for the next two years. There was evidence that the wages earned by miners would increase as the boy got older. This evidence, given by two companions of the deceased, Thomas Buchanan and Andrew Scott, showed that, if the deceased had lived, his average wage might by now have been about 6, 15s. per week instead of the average of 4, 17s. per week which was brought out in the agreed statement of earnings as the average he earned at the time of his death. Against this element must, of course, be put the fact that, as the boy got older, he would probably demand more in name of pocket money."
The pursuer pleaded:"(1) The pursuer, having suffered loss and damage through the fault of the defenders as condescended on, is entitled to reparation therefore. (2) The sum sued for being a reasonable estimate of said loss and damage, decree should be pronounced as concluded for."
The defenders pleaded:"In any event, the sum sued for being excessive, decree therefore should not be pronounced as concluded for."
On 17th July 1956, after a proof limited to the question of damages, the Lord Ordinary (Migdale) awarded the pursuer a sum of 691, consisting of (1) 50 for funeral expenses, (2) 250 for solatium, (3) 366 for loss of actual support, and (4) 25 for loss of prospective right of support in case of necessity.
At advising on 14th December 1956,
LORD JUSTICE-CLERK (Thomson).The right of certain relatives to sue in respect of an injury which has resulted in death is clearly established. The recognition of the right appears to rest on inveterate practice rather than on legal principle. The nature of the right has been discussed by many eminent Judgesdiscussions which have been invited by its anomalous and exceptional character. It was the sort of problem which appealed especially to the late Lord President, and his opinion in M'ElroySC3 summarises all that has been said or can be said about it. The present case is one of father and son, and it arises out of the death of a boy of sixteen and a half who was earning close on 5 a week and was making an annual contribution to the family purse of some 122 a year. The family consisted of his father, a man of
forty-three in steady employment at a weekly wage of 9, his mother and four other children, who at the date of the proofroughly two years after the boy's deathwere seventeen, sixteen, fourteen and seven years of age. At the date of the proof the two elder children were working, but how long they had been working and on what terms we are not told. The family menage was therefore relatively prosperousThe Lord Ordinary dealt with the claim of damages under four heads. First, funeral expenses, which were agreed and call for no comment. Second, solatium, for which he awarded 250. This sum was attacked as excessive, but, having in view the principles laid down by this Court in Purdie v. Allan & SonsSC,1 I do not think that it can be interfered with. The element of support fell into two heads: (1) compensation for the loss of the annual contributions, and (2) compensation for the possible claim in the future in the event of the father becoming impoverished. This latter element the Lord Ordinary thought relevant and assessed the figure at 25. I understood that for the purposes of this action the defenders were conceding that this was a relevant item, although they appeared to have some criticism of the way in which the Lord Ordinary had looked at the matter in view of his attitude to the annual contributions. But I do not think that this criticism was pressed as having any bearing on the major point which the defenders take, viz., that compensation for loss of support is to be awarded only if there is de facto destitution, with the corollary that the compensation is to be measured by the obediential liability resting on a son to support an indigent father. In other words, a father must show that he is destitute and he can claim only on the basis of what the law would have allowed him if he had sued his son for support. He cannot claim in respect of deprivation of voluntary and gratuitous payments which were made by the son during the son's life which the son was under no legal obligation to make.
The argument for the defenders relies on the classical exposition of the basis of the right as set out by Lord President Inglis inEistenUNK.2 There his Lordship, in the earliest of the attempts to find a philosophic basis for the existence of the right, sought to justify it on two grounds, viz., nearness of relationship and "the existence during life, as between the deceased and the claimant, of a mutual obligation of support in case of necessity." It is sought to be inferred from this passage that the element of support in case of necessity which is essential to the constitution of the right must be carried forward into the measurement of the damages flowing from the right. The controversy between the parties at its widest becomes whether a claimant, who has qualified to assert a claim, enters the arena of assessment of its value free to state his claim for pecuniary loss as any ordinary claimant can, or whether he is shackled by the dubious nature
of his origin. The one view is that all who have qualified for the competition, however fortunate they may have been in the qualifying rounds, start from scratch; the other view is that certain people have been so lucky to be allowed to compete at all that they carry a handicapI must consider a number of authorities which, while not expressly raising the point, are appealed to as throwing light on the solution. I take them in chronological order.
In Weems v. MathiesonUNK1 a widow sued for the death of her son. The Sheriff-substitute was against her on the merits but the Sheriff reversed and made the following finding as to damages:"Finds, likewise, in point of fact, that the pursuer was, at the time her son was killed, a widow, depending chiefly, if not entirely, on him for her support." Upon advocation to the Court of Session Lord Kinloch pronounced an interlocutor in favour of the widow which dealt with the merits and only formally with damages. The Inner House adhered simpliciter. Before the Lords the chief argument was that the widow could not maintain such an action, as her son was not bound by law to support her. This the House rejected, the Lord...
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