Naftalin v London, Midland and Scottish Railway Company
| Jurisdiction | Scotland |
| Judgment Date | 18 January 1933 |
| Date | 18 January 1933 |
| Docket Number | No. 26. |
| Court | Court of Session (Inner House - Second Division) |
2d Division.
Ld. Moncrieff.
International Law—Delict—Son killed in railway accident in England—Action of damages brought by father in Scotland—Right of father to solatium—Lex loci delicti—Lex fori.
In an action brought against a railway company to recover damages in respect of pecuniary loss and also for solatium, the pursuer averred that his son, while travelling as a passenger on the defenders' railway from London to Glasgow, with the return half of a ticket purchased by him in Glasgow, was fatally injured as a result of an accident to the train, which occurred in England, and admittedly was caused by the negligence of the defenders' servants.
Held (rev. judgment of Lord Moncrieff) 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 law of England, it could not be remitted to probation.
Authorities discussed.
Horn v. North British Railway Co.UNK, (1878) 5 R. 1055,doubted.
On 16th March 1932 Abraham Naftalin, Glasgow, brought an action against the London, Midland and Scottish Railway Company, having their principal office for Scotland at 302 Buchanan Street, Glasgow, in which he concluded for damages in respect of the death of his son Marcus Harry Naftalin.
The parties averred, inter alia:—(Cond. 2) "On 22nd March 1931 the said Marcus Harry Naftalin was a passenger on the 'Royal Scot' express train, run by the defenders from London to Glasgow, which left the defenders' station in London, known as Euston Station, about 11 a.m. The deceased held a ticket for the journey, which had been issued to him in Glasgow. … When the said train reached Leighton Buzzard, it, or part of it, left the rails, and as a result of the damage caused to the carriage in which the said Marcus Harry Naftalin was seated, he sustained injuries, from which he died almost immediately. "(Cond.4)"As the result of the death of his son, the pursuer has sustained serious loss and injury. The deceased was unmarried, and contributed substantially towards the support of the pursuer's home. [Then followed details of the son's contributions.] The pursuer relied, and was entitled to rely, on the continuance of these payments by the deceased. The pursuer was much attached to the deceased, and his sudden and violent death has been a great grief and shock to him. The sum sued for is reasonable reparation for the loss, injury, and damage sustained by the pursuer. … "(Ans. 4) "Denied that the pursuer has suffered loss and injury.…" (Cond. 5)"The pursuer has called on the defenders to make reparation to him for the said loss, injury, and damage. As they refuse to make adequate reparation, the present action is necessary. The explanations in answer are denied. Explained that even if the rights of parties depended on English law, which is denied, the pursuer would be entitled, under Lord Campbell's Act (9 and 10 Vict. cap. 93) (as amended), to reparation for the death of his said son, as provided by said statutes. The contract made between the deceased and the defenders for the safe carriage of the deceased from London to Glasgow was made in Scotland." (Ans. 5) "Admitted that the defenders refuse to pay damages. The contract and the said statute are referred to for their terms. Quoad ultra denied. Explained that, the cause of action having arisen in England, the rights of parties fall to be determined by the law of that country. By that law no action lies at the instance of a father for solatium against a person who, by neglect or default, has caused the death of his son. Explained further, that by the law of England an action under the statute referred to only lies at the instance of a father who has suffered direct pecuniary loss resulting from the death of his son, and that in the present circumstances the pursuer is not entitled to recover damages thereunder."
The pursuer pleaded, inter alia:— "(1) The pursuer, having suffered loss, injury, and damage through the fault of the defenders, is entitled to reparation from them therefor." "(4) The averments of English law made by the defenders are irrelevant, and should not be remitted to probation, and the defenders' third and fourth pleas should be repelled."
The defenders pleaded, inter alia:— "(3) The grounds of action having arisen in England, the rights of parties fall to be determined by English law. (4) The pursuer having by English law no claim for solatium, and not having suffered any patrimonial loss through deceased's death, the defenders should be assoilzied."
On 29th October 1932 the Lord Ordinary (Moncrieff), after a hearing in the Procedure Roll, sustained the first branch of the pursuer's fourth plea in law; repelled the fourth plea in law stated for the defenders; superseded consideration of their third plea in law; and allowed the pursuer to lodge an issue for the trial of the cause.
At advising on 18th January 1933,—
Lord Hunter.—In this action the pursuer, who resides in Glasgow, seeks to recover damages from the London, Midland and Scottish Railway Co. in respect of the death of his son. The accident which resulted in that death occurred at Leighton Buzzard in England. The deceased held a ticket for the journey which had been issued to him in Glasgow.
As the pursuer was not a party to the contract entered into between his deceased son and the defenders, he cannot found upon the breach of the defenders' obligation to carry their passenger safely. That is a purely personal obligation, which, in the event of the passenger's death, does not give a right of action under the contract to his personal representatives. The action is founded on delict—in this case the negligent act of one of the defenders' employees, for which the defenders are liable on the doctrine respondeat superior.
The pursuer claims damages (first) under the head of solatium, and (second) under the head of pecuniary loss. According to the common law of Scotland a father is entitled to recover damages under both these heads in respect of the death of a son owing to the negligence of a third party. In some of the earlier cases this right of action given to a near relative of a person who has been killed by the negligent act of another
is referred to as a derivative action. No doubt, but for the death, there would have been no action. I think, however, that it is now recognised that the right of action is more properly treated as a direct personal action given by the law of Scotland to the husband or wife, parent or child, of one who has met his or her death owing to the negligence of a third person. Lord Watson in Clarke1explains that the rule does not rest on any definite principle, "but constitutes an arbitrary exception from the general law which excludes all such actions, founded in inveterate custom, and having no other ratio to support it." In the case ofDavidson2 Lord President Dunedin said: "It is to be noted that it" (i.e., the action by a father for the death of his child) "is not a derivative action. I think that is clear from what was said by Lord President Inglis in the case of Eisten3 where he pointed out that this kind of action was not an action of assythment, although it had grown out of that action. It is really an independent action; and a good proof of that is that, if it were a derivative action, it would necessarily belong to the executors of the deceased and not to the relatives. So this is an independent action at the instance of the father for an injury done to the father himself."According to English common law, in the case of a person's death by the negligent act of another, no right of action against the person in fault is given either to the personal representative or to the relatives of the deceased. But by the English Act 9 and 10 Vict. cap. 93, commonly known as Lord Campbell's Act, a right of action is given to the representative of the deceased for behoof of the widow and/or other near relatives in cases where an act or default is such as would, if death had not ensued, have entitled the party injured to maintain an action.
From the above statement as to the different positions under Scots and English law it is manifest that the amount which the pursuer will recover may vary very considerably according as his claims are determined by the one or the other system of law. In England the pursuer's claim to solatium would be disallowed. It is therefore of great importance to consider whether the right to solatium is to be determined according to the lex fori, which allows it as a good claim, or according to the lex loci delicti, which rejects it. The defenders' plea that the pursuer's claim for solatium should be excluded was rejected by the Lord Ordinary, on the ground that, once it was admitted that the act giving rise to the action was wrongful both by the law of the forum and by the law of the place where the act was committed, it was for the former law to determine the different elements of the claim of damages. In any event, he considered himself bound by the decision in Horn.4
If the question is looked at apart from that decision, I think that the pursuer's right to claim damages under the head of solatium ought to be determined by the law of the place where the accident occurred. In the case of Goodman5 Lord Shand said (at p. 451): "But just as the lex loci contractus must be applied in reference to the terms and effect of the
contract for the purpose of ascertaining whether liability exists, so I think the lex loci must be applied with reference to the acts committed, in order to ascertain whether there be liability." This passage was in the nature of an obiter dictum. It was, however, quoted with approval by Lord President Dunedin in the case of...To continue reading
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