Scottish Court of Session Decisions

This was an appeal upon a stated case from the Sheriff Court of Lanarkshire at Hamilton in an arbitration under the Workmen's Compensation Act 1897 between Turners Limited. coalmasters, StaneColliery, Shotts, Lanarkshire, appellants, and Mrs Isabella Gillies or Whitefield, widow, residing at 744 London Road, Glasgow, claimant and respondent.

Whitefield claimed from the appellants £300 as compensation in respect of the death of her husband George Whitefield.

The facts which the Sheriff-Substitute ( Thomson) found proved or admitted were as follows—“(1) That the applicant is the widow of the deceased George Whitefield, to whom she was married on 4th October 1889; (2) that about six months after the marriage the spouses separated of mutual consent, and have never since cohabited, the deceased having lived with his four children by a former marriage (who are all married, and were not dependent to any extent on the deceased at the time of his death), and the respondent with some of her illegitimate children (of whom she has six to two different men, all born prior to her marriage with the deceased); (3) that since their separation the spouses had only three meetings—all quite casual—and on each of these occasions the deceased gave the respondent five shillings, and beyond

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this they have had no intercourse whatever; (4) that the deceased never mentioned the respondent's name to his children, who believed that she was dead; (5) that the respondent supported herself by doing occasional washing and by keeping house for one of her illegitimate sons, but that she is now, and was at the date of the death of her husband, physically unfit to do anything for her own support, and has no means of support whatever, being maintained in the house of the son referred to.”

On these facts the Sheriff-Substitute held that the respondent was wholly dependent upon her husband at the time of his death, and he assessed the amount of the compensation due to her at £156, 19s. 6d., for which sum he gave decree against the appellants.

The question of law submitted for the opinion of the Court was—“Was respondent dependent upon the earnings of her late husband within the meaning of the Workmen's Compensation Act 1897 so as to entitle her to compensation from the appellants?”

The Workmen's Compensation Act 1897, sec. 7 (2), inter alia, enacts—“‘Dependants’ means …( b) in Scotland, such of the persons entitled according to the law of Scotland to sue the employer for damages or solatium in respect of the death of the workman as were wholly or in part dependent upon the earnings of the workman at the time of his death.”

Argued for the appellants—The Sheriff had erred in finding in fact that the wife was dependent upon the earnings of the husband when there was no evidence to support such a finding. The statute did not give compensation to all who by the law of Scotland could claim damages or solatium, but only to those dependent upon the earnings of the workman at the time of his death. Such dependency must be established— Rees v. Penrikyber Navigation Colliery Company, Limited, December 13, 1902, 87 L.T. 661; Main Colliery Company v. Davies [1900], A.C. 358, and the proper test was whether the earnings formed the source of maintenance— Pryce v. Penrikyber Navigation Colliery Company, Limited [1902], 1 K.B. 221. It was impossible to find dependency where the parties had for years been living apart and had had no communication whatever.

Argued for the respondent—The question in this case was one of fact, and the Sheriff had had sufficient evidence before him to reach his conclusion— Simmons v. White Brothers, 1899, L.R. [1899], 1 Q.B. 1005; Legget & Sons v. Burke, March 18, 1902, 4 F. 693, 39 S.L.R. 448. The husband need not be living with the wife or alimenting her in order to give her a claim— Cuningham v. M'Grigor & Co., May 14, 1901, 3 F. 775, 38 S.L.R. 574. Besides, the statute did not use the words “supported by” but “dependent upon,” which had an entirely different meaning. The wife here was not self-supporting, and she could not be dependent on her illegitimate son— Clarke v. Carfin Coal Company, July 27, 1891, 18 R., H.L. 63, 28 S.L.R. 950. She must therefore have been dependent upon the husband.

At advising—