Scottish Court of Session Decisions

Alexander Darling, a mason in the employment of Messrs William Gray & Sons, builders, raised an action against his employers in the Court of Session to recover damages in respect of injuries which he had received while in their employment, and, as he alleged, through their carelessness. He died on 6th January 1891, during the progress of the action, after issues had been adjusted, and his mother, as his executrix, lodged a minute sisting herself as the pursuer in the action.

On 30th April 1891 she raised another action in the Sheriff Court at Edinburgh as an individual against the same defenders, in which she sought to recover damages from them as solatium to herself and as reparation for the loss which she had sustained by the death of her son.

The defenders pleaded, inter alia, that the action was incompetent.

The pursuer having mentioned that she intended to appeal the case to the Court of Session with the view of having it conjoined with the action brought against the defenders by Alexander Darling before his death, the Sheriff-Substitute ( Hamilton) on 6th June 1891 pronounced an interlocutor allowing a proof before answer without disposing of the defenders' pleas in so far as preliminary.

Page: 873↓

The pursuer appealed to the Second Division of the Court of Session, and argued—In the first action the executrix could only recover damages for injuries done to the dead man himself, while in the present one she claimed for injuries done to her through his death. She had suffered pecuniary loss for which she demanded recompense, as well as solatium for her wounded feelings. Even if her son's claim for damages had been settled in full, and he had subsequently died of his injuries, she would not have been barred from suing for damages for her loss. This case should therefore be conjoined with the first action, and remitted to the Lord Ordinary to be tried conjointly with it— Eisten v. North British Railway Company, July 13, 1870, 8 Macph. 980.

The defenders argued—The present action was incompetent and unnecessary. It was enough for the defenders to have to meet one action for the one injury. There was no authority for allowing a second action to be raised to obtain further damages for the same injury as was covered by the first. This was clearly established in England by Lord Campbell's Act— Stevenson v. Pontifex & Wood, December 7, 1887, 15 R. 125; Macmaster v. Caledonian Railway Company, November 27, 1885, 13 R. 252; Addison on Torts, 454.

At advising—