Kelly v Glasgow Corporation
| Jurisdiction | Scotland |
| Judgment Date | 17 June 1949 |
| Docket Number | No. 54. |
| Date | 17 June 1949 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Birnam.
DamagesDelictAccidental death of married womanAction of damages by husband for self and childrenDeath of husband before proofSolatiumPotential supportElements to be taken into accountChanges in value of moneyExpansion of social services.
A married woman died as the result of injuries received when she was knocked down by an omnibus. She was survived by her husband and by five children, aged thirteen, ten, nine, seven and five years, with whom she had lived in family. In an action of damages brought against the owners of the omnibus the Lord Ordinary, finding that the deceased and the defenders were equally to blame for the accident, assessed the total loss and damage in the case of the husband (who had died before the proof) at 150, and in the case of each of the children at 100, and granted decree for half these amounts.
Held (1) that, taking into account on the one hand the decline in the value of money and also on the other the expansion of the social services, the damages so assessed were generally below the approximate standards now applicable; (2) that the early death of the husband was a factor which diminished his claim as based on his grief and suffering but increased the children's claim as based on their loss of their mother's support; and (3) that some distinction should have been made among the children in view of their ages.
The Court increased the assessment of damages to the following figures:to the husband 250, and to the children in order of seniority, 150, 200, 250, 300 and 350, one-half only of these sums being decerned for owing to the finding of contributory negligence.
Sands v. Devan, 1945 S. C. 380, and Bwllfa and Merthyr Dare Steam Collieries v. Pontypridd Waterworks Co.ELR,[1903] A. C. 426, applied.
Timothy Kelly, as an individual and as tutor and administrator-at-law of his four pupil children, and Mary Kelly, his minor child, with his consent and concurrence as her curator and administrator-at-law, brought an action against Glasgow Corporation for damages in respect of the death of Mrs Agnes M'Inally or Kelly, his wife and their mother, after being knocked down by an omnibus belonging to the defenders. At the time of the accident the children were aged respectively thirteen, ten, nine, seven and five years. The husband, Timothy Kelly, died a year after the accident and before the proof had been taken. Patrick Kelly, his executor-dative, was appointed curator bonis to the second pursuer and factor loco tutoris to the pupil children, and was sisted in the action as executor-dative and factor loco tutorisin place of Timothy Kelly and as curator bonis in room and place of Mary Kelly the second-named pursuer.
On 17th February 1949, after a proof, the Lord Ordinary (Birnam) found that the deceased and the defenders were equally at fault in causing the accident, assessed the total loss and damage sustained in the case of the deceased's husband at 150 and in the case of each of the deceased's children at 100, and in view of his finding of joint fault granted decree for one half of the sum assessed in each case.
At advising on 17th June 1949,
LORD PRESIDENT (Cooper).The only point raised by this reclaiming motion is the quantum of damages awarded by the Lord Ordinary in respect of the death of a woman in a traffic accident for which the defenders have been found partly to blame. The action is at the instance of Patrick Kelly as (a) the executor of her husband, who only survived her for a year, and (b) the factorloco tutoris and curator bonis for her children, of whom there are five, and who were aged respectively at the time of the fatality, five, seven, nine, ten and thirteen years.
The sums sued for were 1500 for the husband's claim, and 500 for each of the children, or 4000 in all. The Lord Ordinary has
assessed 150 in respect of the husband and 100 for each of the children, or 650 in all; and he has then halved these sums by virtue of his finding of...To continue reading
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