Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, c. 58), First Schedule, enacts—“(1) The amount of compensation under this Act shall be—( a) Where death results from the injury—(i) if the workman leaves any dependants wholly dependent upon his earnings, a sum equal to his earnings in the employment of the same employer during the three years next preceding the injury, or the sum of one hundred and fifty pounds, whichever of those sums is the larger, but not exceeding in any case three hundred pounds.… (ii) If the workman does

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not leave any such dependants, but leaves any dependant in part dependent upon his earnings, such sum, not exceeding in any case the amount payable under the foregoing provisions, as may be agreed upon, or, in default of agreement, may be determined on arbitration under this Act to be reasonable and proportionate to the injury to the said dependants.…”

Margaret Ann Murray, 11 Wallace Street, Arbroath, pupil illegitimate child, aged four months, of Helen Murray, residing there, and of the deceased John Murray, blacksmith and golf club maker, Carnoustie, claimed compensation under the Workmen's Compensation Act 1906 for the death of the said John Murray, from his employer James Gourlay, golf club maker and blacksmith, Carnoustie. James Murray, labourer, Olive Cottage, Carnoustie, the father of the deceased, also claimed compensation. In a joint-arbitration in the Sheriff Court at Arbroath the Sheriff-Substitute ( Lee) awarded the first applicant £144, 10s., allowing the second applicant £5, 10s. for funeral expenses. Gourlay took a stated case for appeal.

The case stated—“The Sheriff-Substitute as arbitrator in his award, of date 23rd December 1907, found in fact that it is admitted that the deceased John Farquhar-son Murray was killed on 9th August 1907 by accident arising out of and in the course of his employment, and that his average weekly earnings were 18s. 6d. Found further in fact that the claimant Margaret Ann Murray is the illegitimate daughter of the said deceased, conform to extract decree of affiliation and aliment obtained on 17th July 1907, and that she was at the time of his death partially dependent upon his earnings; …. that the said claimant James Murray is an able-bodied labourer in receipt of regular wages, and that he was not, at the time of the deceased's death, either wholly or partially dependent upon the deceased's earnings. Found further in fact that the deceased's funeral expenses, amounting to £5, 10s. or thereby, have been paid by the claimant James Murray. Found that the sum available for compensation in terms of the Workmen's Compensation Act 1906 is £150. Found in law that the claimant James Murray not having been dependent on the deceased had no claim to compensation under the Act, but is entitled out of the sum available for compensation to repayment of the amount paid by him for funeral expenses, and that the claimant Margaret Ann Murray having been partially dependent on the deceased is entitled to a reasonable sum proportionate to the injury to her through the deceased's death as compensation therefor. Assessed the compensation due to the said claimant at £144, 10s.”

The question of law for the opinion of the Court was—“Whether the sum assessed is reasonable and proportionate to the injury to the claimant Margaret Ann Murray in so far that it exceeds in amount the aggregate of the alimentary contributions in which the deceased workman would have been liable had he lived?”

Argued for appellant—The arbiter was in error in thinking that the sum he had awarded was reasonable and proportionate to the injury suffered by the claimant. He had treated the claimant as a total dependant, whereas she was only partially dependent on the deceased. [As to the meaning of “dependants” reference was made to section 13 of the Workmen's Compensation Act 1906 (6 Edw. VII, c. 58).] The claimant was partially dependent on her mother, and the arbiter should have taken that fact into consideration— Osmond v. Campbell & Harrison, Limited, [1905] 2 KB 852. The extent of the deceased's liability was the sum in the decree for aliment, the capital value of which was at the date of his death £78. The date of the deceased's death was the punctum temporis to be looked at, and at that date the claimant's mother was alive and partially liable for her support. The award so far as in excess of £78 was not therefore reasonable and proportionate to the injury suffered in the sense of section 1 ( a) of the First Schedule of the Workmen's Compensation Act 1906 (cit. sup.)

Argued for respondent—The question whether the claimant was totally or partially dependent was one of fact on which the arbiter was final— Baird & Co., Limited v. Birsztan, February 2, 1906, 8 F. 438, per Lord President at p. 440, 43 S.L.R. 300. The arbiter was entitled to exercise his discretion as to what was reasonable compensation so long as the sum awarded was within the maximum allowed by the Act— Osmond ( cit. sup.), per Romer, L. J., at 958; Bevan v. Crawshay Brothers (Cyfartha), Limited, [1902] 1 KB 25, per Collins, M.R., at p. 29. The sum in the decree of affiliation was not conclusive as to the deceased's measure of liability. He might have been liable for an indefinite period had he lived and the claimant been unable to support herself. The arbiter was entitled to take into account all circumstances affecting the amount of liability— Oncken's Judicial Factor v. Reimers, February 27, 1892, 19 R. 519, 29 S.L.R. 384; A B v. C D's Executor, February 15, 1900, 2 F. 610, 37 S.L.R. 421.

[The question as to the funeral expenses was not argued].

At advising—