McElroy v McAllister
| Jurisdiction | Scotland |
| Judgment Date | 10 December 1948 |
| Date | 10 December 1948 |
| Docket Number | No. 16. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION with three consulted Judges.
Lord Stevenson.
International LawDelictHusband killed in road accident in EnglandAction of damages brought in Scotland by widowRights of widow as individualRights of widow as executrixLex loci delictiLex fori.
In an action brought by a widow against the driver of a motor vehicle to recover damages in respect of the death of her husband, the pursuer, suing both as an individual and as executrix-dative and claiming an award in each capacity, averred that through the fault of the defender her husband had sustained fatal injuries in a road accident in England, and that under Scots law she was entitled to an award for solatium and patrimonial loss, or, alternatively, that under English law she was entitled to damages (1) as an individual, for the "pecuniary loss" that she had sustained, under a group of English statutes (the Fatal Accidents Acts, 1846 to 1908), and (2) as executrix, for "funeral expenses and the loss caused in the death," under another English statute, the Law Reform (Miscellaneous Provisions) Act, 1934. The defender admitted liability for the funeral expenses and certain outlays. The Fatal Accidents Act, 1846, enacts by sec. 3 that an action thereunder "shall be commenced within twelve calendar months after the death," and the pursuer's action was brought outwith that period.
Held by a Court of Seven Judges, approving andfollowingNaftalin v. London, Midland and Scottish Railway Co., 1933 S. C. 259, that the rights of parties fell to be determined in accordance with the law of England, as the lex loci delicti; that the right to claim solatium was a substantive right, distinct and separate from the right to claim in respect of patrimonial loss; and that, as the claim for solatium was excluded by the lex loci delicti,it could not be admitted by the lex fori.
Held further (diss. Lord Keith) (1) that, having regard more especially to the time limit imposed by the Act of 1846, the pursuer had not relevantly averred that she had by English law a right of action in respect of her individual claim for patrimonial loss; and (2) that, even if she had by English law a right of action as executrix, she had no title to sue such a claim in Scotland; and actiondismissed, except quoad the admitted liability.
Horn v. North British Railway Co.UNK, (1878) 5 R. 1055,overruled; M'Larty v. SteeleUNK, (1881) 8 R. 435, commented on.
Annie M'Menamin or M'Elroy, Glasgow, as an individual and as executrix-dative of the late Joseph M'Elroy, her husband, brought an action against John M'Allister, also of Glasgow, concluding for payment to the pursuer as an individual of 2000 and for payment to the pursuer as executrix-dative of 2000. The summons was signeted on 23rd May 1947.
Joseph M'Elroy at the date of his death had been employed by a Glasgow company, and on 4th March 1946, while so employed, he proceeded to England on the instructions of his employers in a heavy motor vehicle belonging to them and driven by the defender. About 8.45 p.m.on that day, while the vehicle was proceeding southwards along a road in the north of England, it met another large vehicle; and, while the two vehicles were endeavouring to pass, they came into contact and the vehicle driven by the defender left the road and went down an embankment. As a result of the accident Joseph M'Elroy received injuries from which he died on the same day.
The pursuer averred that the accident was due to the fault of the defender, and the defender denied this averment. The parties averred further:(Cond. 4) "The pursuer has sustained serious. loss as a result of the death of her husband. She was greatly attached to him and has suffered much grief. He was thirty-five years of age and earned an average wage of 6 per week. As a result of his death the pursuer has lost the support which she would have received from him. She has incurred funeral and other expenses in connexion with his death amounting to 40. Alternatively, in the event of it being held that rights of parties fall to be determined by the law of England, the pursuer as an individual is entitled to damages for the pecuniary loss that she has sustained under the Fatal Accidents Acts, 1846 to 1908. Further the pursuer as executrix-dative is entitled to damages under the Law Reform (Miscellaneous Provisions) Act, 1934, in respect of the funeral expenses and the loss caused by the death of the said Joseph M'Elroy. Up to the time of the accident he had been in good health and regular employment. He died intestate. In these circumstances the sums sued for are reasonable. The averments in answer so far as not coinciding herewith are denied." (Ans. 4) "Believed to be true that by the law of England an executor is entitled to certain damages under the Law Reform (Miscellaneous Provisions) Act, 1934. Denied that by the law of England the pursuer is entitled to damages under the Fatal Accidents Acts, 1846 to 1908. Denied that the sums sued for are reasonable. Quoad ultra not known and not admitted. Reference is made to the Fatal Accidents Acts, 1846 to 1908, and to the Law Reform (Miscellaneous Provisions) Act, 1934, for their terms. Explained in any event that, the cause of action having arisen in England, the rights of the parties fall to be determined by the law of that country. By that law no action lies at the instance of a widow for solatium against a person who, by neglect or default, has caused the death of her husband. Moreover by the operation of section 3 of the Fatal Accidents Act, 1846, the pursuer in the present action has no rights to damages under the Fatal Accidents Acts, 1846 to 1908, either by the law of England or otherwise. Explained that the said Joseph M'Elroy died on 4th March 1946 and the present action was not raised until 23rd May 1947. In these circumstances the pursuer is not entitled, under English law, to recover any of the respective items of alleged damages sued for by her as an individual. In any event the loss, injury and damage alleged to have been suffered by the pursuer is grossly exaggerated. The pursuer is called upon to state specifically her alleged claims to damages as executrix-dative of the said Joseph M'Elroy."
The pursuer pleaded:"(1) The pursuer, having sustained loss, injury and damage through the fault of the defender, is entitled to reparation therefor. (2) Separatim. The said Joseph M'Elroy having been killed by the fault of the defender, the pursuer as an individual is entitled to damages under the Fatal Accidents Acts, 1846 to 1908, and as executrix-dative under the Law Reform (Miscellaneous Provisions) Act, 1934. (3) The sums sued for being reasonable, decree therefor should be pronounced."
The defender pleaded, inter alia:"(2) The pursuer's averments being irrelevant and insufficient in law to support the conclusions of the summons, et separatim being lacking in specification, the action should be dismissed. (3) The pursuer having no title or interest to pursue the present action as an individual, it should be dismissed so far as laid at her instance as an individual. (4) The grounds of action having arisen in England, the rights of the parties fall to be determined by English law. (5) The action, so far as laid under the Fatal Accidents Acts, 1846 to 1908, not being maintainable according to the law of England, should be dismissed. (6) The pursuer having by English law no claim for solatium, et separatim no right to any of the other items of damage sued for by her as an individual, the defender should be assoilzied from the first conclusion of the summons."
On 7th May 1948, after a Procedure Roll discussion, the Lord Ordinary (Stevenson) decerned against the defender for payment to the pursuer of 40 in name of funeral and other expenses (liability for this sum having been admitted), and quoad ultra sustained the second, third, fourth, fifth and sixth pleas in law for the defender, and dismissed the action.
At advising on 10th December 1948, when only the Lord President, Lord Carmont and Lord Keith were present,
LORD JUSTICE-CLERK (Thomson) (read by the Lord President).That NaftalinSC1 was rightly decided I have no doubt. Solatium is not recognised by the lex delicti. It can be defended as a relevant ground of claim only if it can be regarded as an element to be considered in measuring damages. If it could be so regarded it would fall within the scope of the lex fori as being a matter of remedy and not of substantive right. Looking to the nature of solatium as it has been expounded in a series of authorities, I find it impossible to regard it otherwise than as a separate right peculiar to the law of Scotland. The argument to the contrary can be supported only by placing on the word "remedy" a meaning wider than it can bear consistently with the accepted principles of private international law.
On the other issues raised I deal first with the widow's claim to damages for patrimonial or pecuniary loss.
When a pursuer comes to a Scots Court with an action for damages based on a wrong committed in England, the first question is whether the Scots Court is entitled by the principles of private international law to entertain the action. Looked at from the strictly logical point of view it would be tempting to think that, granted that the Scots Court had jurisdiction against the defender, the function of the Scots Court was to discover and, having discovered, to apply the law which an English Court would have applied had the action been raised in England. The Scots Court, it might have been thought, would ask:(i) Is the action good in England? (ii) If so, what is the extent of the rights of the pursuer and of the liability of the defender according to English law? And (iii), if the Scots Court held that the pursuer had made out his case, it would proceed to award damages.
But this is not the course which has been followed in either country. The Court of the forum has insisted (1) that...
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