& Ors

1911

that it is inexpedient that such accumulation should continue, and that they should be authorised to uplift part of the capital of the trust for the purpose of the immediate erection of the proposed institute.

"The petitioners point out in support of this latter view that the benefit intended by the testator to be conferred upon the inhabitants of Lanark by the possession of the proposed institute would be considerably postponed if they are not allowed to utilise part of the capital. It seems to the reporter that the testator contemplated that the buildings would be paid for entirely out of accumulations of income, and unless your Lordships decide that by the operation of the Thellusson Act the petitioners are no longer bound or entitled to accumulate income for that purpose, the mere fact of the delay occasioned by the necessity for further accumulations would not appear to the reporter to be a necessary reason for authority being granted to the petitioners to encroach on capital. Your Lordships will observe that the trust for the erection of the institute only came into real operation on the death of the testator's widow in July 1902, and the testator presumably had in view that considerable time must elapse after the death of his widow before the accumulations of income would amount to a sum sufficient to meet the cost of erecting an institute. ...

"In considering this matter your Lordships may wish to have in view what the result would be if a sum of, say, £3600 was uplifted from the capital of the trust and applied in or towards payment of the cost of erecting an institute.

"The approximate value of the capital of the trust estate amounts, as stated in the petition to, say. £14,000

"And the petitioners desire authority to uplift, say

3,600 Leaving £10,400 "This sum would yield annually, if invested at 3 per cent., £338. The present investments of the trust yield a higher return than 31 per cent., but probably that is as high a rate as can be safely relied upon in considering the future working of the trust.

"The petitioners have stated in the petition that an annual income of £325 would be sufficient for the proper maintenance and upkeep of the proposed institute. . .

"The petitioners have lodged in process an abstract giving some details of the annual expenditure of various institutes of a similar character in different parts of Scotland. The annual expenditure of the institutes referred to in the abstract ranges from about £60 to £500, and, so far as he is able to judge from the data before him, it would seem to the reporter that a sum of £325 should be sufficient for the annual expenditure of an institute such as the petitioners desire to erect.

"Your Lordships, however, will observe that if an institute is erected at the cost proposed by the petitioners, and if they

are authorised to apply £3600 of the capital of the trust to meet that cost, the income of the trust will-or at least may-in that event only, be sufficient to meet the ordinary annual expenditure of the institute according to the petitioners' estimate and leave a very small margin over-only £13, although this would be increased if the trust investments yield more than 3 per cent. It seems to the reporter that it would be more prudent and more in accordance with the expressed wishes of the testator to ensure that there would be a substantial margin in the income of the trust after providing for the ordinary annual expenditure, so that there may be (to use the testator's words) funds available for increasing and extending the library and reading-room, and forming a museum illustrative of the natural history of animals, vegetables, and minerals in Lanarkshire, both recent and fossil, and in giving a course of scientific lectures at suitable periods. . .

"In the whole circumstances it appears to the reporter that the preliminary question requiring to be determined is whether the petitioners are still entitled, notwithstanding the terms of the Thellusson Act, to accumulate income until they have a sufficient sum to pay for erecting an institute.

"If that question is answered in the negative, the circumstances are probably such as would justify judicial authority being given to encroach on capital.

"If the question is answered in the affirmative, the further question arises on the petitioners' contention whether any ground exists for the testator's directions with regard to the accumulation of income being superseded in the way proposed.

"If and when your Lordships reach the stage of considerating the amount which the petitioners may be authorised to uplift from capital, it appears to the reporter that no sufficiently definite scheme for the acquisition of a site and for the erection thereon of the institute they propose has yet been submitted, and if your Lordships also take that view the petition might be continued in order that the petitioners may have an opportunity of submitting to your Lordships some such definite scheme. In that event the reporter would humbly suggest that an interlocutor should be ́ pronounced containing a finding of your Lordships' decision on the result of the application of the Thellusson Act, and quoad ultra continuing the petition.

"If, however, your Lordships should consider that authority may now be granted to the petitioners to uplift the said sum of £3600-or such other sum as your Lordships may determine-from the capital of the trust for the purpose of erecting the proposed institute, and that it is unnecessary for the petitioners to submit more precise information as to the cost of the proposed institute, the reporter humbly suggests that an interlocutor in the following terms may be suitable--The Lords having resumed consideration of the petition and report by Mr G. F. Dalziel, grant warrant to and

v. M'Ginty's

shall not be maintainable... unless the claim for compensation with respect to such accident has been made. . . in case of death, within six months from the time of death."

The father of a deceased workman raised an action of damages against his son's employer, and being unsuccessful, requested compensation to be assessed under the Act. Thereafter, and when more than six months had expired since the workman's death, minutes were lodged on behalf of the mother and sisters of the deceased workman claiming compensation as dependants.

Held that the right given under section 1 (4) of the Act was a privilege personal to the raiser of the action, and that the statutory six months having expired, the mother and sisters were not entitled to be sisted. Master and Servant Workmen's Compensation Act 1906 (6 Edw, VII, cap, 58), section 13-" Dependants."

The Workmen's Compensation Act 1906 enacts-Section 13-"In this Act, unless the context otherwise requires, any reference to a workman who has been injured shall, where the workman is dead, include a reference to ... his dependants. . . . 'Dependants' means such of the members of the workman's family as were wholly or in part dependent upon the earnings of the workman at the time of his death.

'Member of a family' means... father, mother, . . . sister. .

Question reserved whether when a family live together and some of the children work and some do not, and the workers contribute to the family purse, the result in law is that the children who do not work are dependants of those who do.

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sections 1 (4), 2 (1), and 13, are quoted in the rubric supra.

Mrs Jane Martin or Kyle, Glasgow, was dissatisfied with a determination of the Sheriff-Substitute of Lanarkshire (A. O. M. MACKENZIE) acting as arbitrator under the Workmen's Compensation Act in an arbitration in which Edward M'Ginty, Mrs Jane Devlin or M'Ginty, Martha M'Ginty, and Isabella M'Ginty, with consent and concurrence of Edward M'Ginty, their father, and the said Edward M'Ginty, as tutor and administrator-inlaw of his pupil daughter Margaret M'Ginty (all except the first-named claimant having been sisted as parties by interlocutor dated 6th June 1910), claimed compensation from her, and she appealed by way of stated

case.

The following narrative from the opinion of the Lord President gives the facts and the proceedings in the case-"The statement of facts in this case was in some respects defective, but it has been supplemented by a minute of admissions. Accordingly in the following narrative of the facts I avail myself in part

of the minute and in part of the Sheriff's statement of the case. The accident in consequence of which a certain John M'Ginty died the same day took place on 5th October 1908, and on 30th December 1908 a firm of writers wrote to the employer on behalf of Edward M‘Ginty, father of the deceased man, giving notice of the accident. Their letter ended with the following words-"The notice is given in terms of the Workmen's Compensation Act 1906 and in terms of the Employers' Liability Act 1880. We shall be glad to know if you have any proposal to make, otherwise our instructions are to raise an action, and this we will do unless we hear from you by Wednesday, 6th January 1909, at twelve o'clock." Nothing being done they raised an action, and in the proceedings which followed the employer was assoilzied. That decision was pronounced towards the end of December 1909, more than a year after the accident. Absolvitor having been granted, Edward M'Ginty appealed to the Sheriff, and then took advantage of the Workmen's Compensation Act, sec. 1 (4), which is in the following terms-". [His Lordship read the sub-section.]. Availing himself of that sub-section he lodged in process on 7th March 1910 a motion in which, to quote the stated case, "he craved the Court to proceed with the action in terms of section 1, sub-section 4, of the Workmen's Compensation Act 1906, for the purpose of assessing the compensation due to the respondent Edward M'Ginty under the said Act by the appellant." Proceeding upon that motion the Sheriff on 14th April 1910 dismissed the action as laid, but reserved it as a proceeding for assessing compensation, and found Edward M'Ginty liable in the expenses to the employer.

On 24th May 1910- that is, more than a year and a half after the accidenta minute was lodged in process on behalf of Mrs Jane M'Ginty, wife of Edward M'Ginty, and mother of the deceased workman; and on 9th June a similar minute was lodged on behalf of three sisters of the deceased, two being minors and one a pupil, with consent and concurrence of their father Edward M'Ginty. Mrs M'Ginty claimed compensation as having been totally dependent on the earnings of the deceased; the two oldest sisters averred partial dependency, and the youngest total dependency. Objection was taken to the sisting of those persons, but the Sheriff repelled the objection and allowed a proof of the claims, and having taken that proof found in fact-"1. The accident which resulted in the death of John M'Ginty arose out of and in the course of his employment with the appellant. 2. Edward M'Ginty, Mrs M'Ginty, and Martha M'Ginty were not to any extent dependent on the earnings of the deceased at the time of his death. 3. Isabella and Margaret M'Ginty were in part but not in whole dependent on the earnings of the deceased at the time of his death.'

In these circumstances the Sheriff awarded the sum of £70 as compensation

to Isabella M'Ginty and Edward M'Ginty as tutor-in-law of Margaret M'Ginty, allocating £20 to Isabella and the balance to Margaret, and refused to award compensation to the other claimants. The appellant moved him to deduct from the compensation awarded the expense caused by the respondent Edward M'Ginty bringing the action instead of proceeding under the Workmen's Compensation Act. The Sheriff declined to do so, holding that by the terms of section 1 (4) of the Act he was not bound but only entitled to make the deduction, and that as the successful claimants were not responsible for the raising of the action of damages, the present was not a proper case in which to exercise the power conferred by the Act.

64

The questions of law were-' (1) Was the Sheriff-Substitute entitled to sist the said Mrs Jane Devlin or M'Ginty, Martha M'Ginty, and Isabella M'Ginty, and Margaret M'Ginty, as claimants in the said proceedings? (2) Was the SheriffSubstitute bound to deduct the extra expense caused by the unsuccessful action at common law and under the Employers' Liability Act from the sum awarded by him as compensation?"

The appeal was heard on 24th November 1910, but the case was continued in order to find out the date of the accident and death, and as to whether any claim had been made for the sisted claimants prior to the minutes, which did not appear from the stated case.

Argued for the appellant-The letter of 30th December 1908 was not a good notice of the accident on behalf of anyone except Edward M'Ginty himself. Accordingly the first requisite of section 2 (1) was not fulfilled. But in any case no timeous claim had been made for the mother and sisters. The minutes were lodged after the lapse of the statutory six months, and the respondents could not bring themselves under the exception in 2 (1) (b) of "mistake, absence from the United Kingdom, or other reasonable cause. The privilege given under section 1 (4) was limited to the raiser of the action. Reference was made to Blain v. Greenock Foundry Company, June 5, 1903, 5 F. 893, 40 S. L.R. 639. (2) If the sist of the claimants was right they must share in the expense of the unsuccessful action; if they took the advantage of the father's action they must share in the disadvantage.

&

Argued for the respondents-The letter of 30th December served what was the object of notice. It put the employer upon inquiry and thus prevented prejudice by stale claims Thompson v. Goold Company, [1910] A. C. 409, Lord Atkinson at 413, Lord Mersey at 419. Moreover, the father was tutor of two of the claimants and the curator of another. They submitted that once notice had been given on behalf of one dependant the employer must inform himself of who constituted the class of dependants, and that notice given by any member of the class of dependants was valid notice for

Kyle v. M'Gintys. March

the whole class. This view was supported by the terms of the Act of Sederunt of 26th June 1907, sec. 3. (2) The SheriffSubstitute was not bound but merely entitled to make the deduction.

At advising

LORD PRESIDENT- [After narrative quoted supra]. The first question in the case is-1. Was the Sheriff-Substitute entitled to sist the said Mrs Jane Devlin or M'Ginty, Martha M'Ginty and Isabella M'Ginty, and Margaret M'Ginty, as claimants in the said proceedings?" I am of opinion that he was not. The privilege given by sub-section 4 is a peculiar privilege, and it is only a personal privilege. Anybody who has a claim both at common law and under the Workmen's Compensation Act has the option of proceeding under either, but if he exercises the option in the one way he necessarily repudiates the other. If he claims under the Workmen's Compensation Act he cannot afterwards sue at common law, and, as your Lordships are aware, there are decided cases in which this doctrine has been applied and employers have been assoilzied from an action because proceedings had already been taken under the Workmen's Compensation Act. Well, in the same way the claimant Edward M'Ginty cannot, prima facie, have a claim under the Act, and would have had none but for this sub-section. It is perfectly clear that the sub-section is meant for the person who has raised the action and for no one else, and I cannot see that other people who have allowed the statutory time to pass can take to themselves the benefits of proceedings which during the six months allowed to them might never have been turned into a claim for compen sation at all, and which only become proceedings for compensation because another person over whose volition they have no control has chosen to exercise a personal privilege.

Your Lordships will remember that claims under the Workmen's Compensation Act and actions at common law are quite distinct, and though there may be persons who have both remedies, there are also persons who have only one, and the deceased's sisters could not have raised an action of damages at common law for the death of their brother. But if they could have shown that they were dependants in the sense of the Workmen's Compensation Act, they at once had a claim for compensation, and there was nothing to prevent them prosecuting that. The father and mother, on the other hand, had an action at common law if they chose to exercise it, but what had the sisters to do with that?

Accordingly I am of opinion that the Sheriff has gone wrong in allowing the sisters and mother to be sisted, and as he has found as matter of fact that the father and mother were not dependants, the whole thing is at an end. That disposes of the case and makes it unnecessary to answer the second question, viz., "2. Was the

Sheriff - Substitute bound to deduct the extra expense caused by the unsuccessful action at common law, and under the Employers' Liability Act, from the sum awarded by him as compensation?"

I only wish to add that I should like to reserve my opinion on what the Sheriff said about the younger children dependants. I do not know that we could have gone into this matter, but I do not wish by my silence to seem to acquiesce in a view which, while I do not say it is wrong, is at least peculiar, namely, that when a family live together and some of the children work and some do not, and the workers contribute to the family purse, the result in law is that the children who do not work are dependants of those who do. It may be right, but it appears to me a peculiar result, and until it comes up before us I reserve my opinion upon it.

LORD KINNEAR-I agree.

LORD MACKENZIE I am of the same opinion.

LORD JOHNSTON was absent.

The Court answered the first question of law in the negative, found it unnecessary to answer the second question, recalled the determination of the Sheriff-Substitute as arbitrator, and remitted to him to dismiss the claim and proceed as accords.

Counsel for the Appellant-J. A. Christie. Agents-St Clair Swanson & Manson, W.S. Counsel for the Respondents-Constable, K.C. Morton. Agents Oliphant & Murray, W.S.

Wednesday, March 15.

FIRST DIVISION.

[Dean of Guild Court at
Edinburgh.

SOMERVILLE v. THE NEW
EDINBURGH BILLPOSTING

COMPANY.

Burgh-Dean of Guild-Appeal-Competency-Order to Remove Hoarding Erected for Advertising Purposes - Edinburgh Corporation Act 1899 (62 and 63 Vict. cap. lxxi), sec. 48.

The Edinburgh Corporation Act 1899, sec. 48, enacts-"(1) Every person who proposes to erect any hoarding. . . for advertising purposes upon any land or building in, abutting on, or adjoining any street or court shall present a written application to the Dean of Guild Court for warrant so to do . . . and the said Court may on being satisfied as to the stability and sufficiency of such hoarding grant warrant accordingly...." "(2) Every owner or person using any hoarding or similar structure for advertising purposes, shall keep and maintain the same at

all times in a proper and safe condition and repair, and securely fixed or erected to the satisfaction of the Dean of Guild Court, and it shall be lawful to the said Court at any time, on the application of the Procurator-Fiscal of the said Court, to pronounce such order upon the owner or other person using such hoarding or structure as may be necessary in their opinion to render the same secure, or if they shall so direct to remove the same.

In a complaint under this section against the owners of an advertising hoarding which had been erected with out a warrant the Dean of Guild after hearing parties visited the structure, and, proceeding on his own skill and knowledge, ordered its removal. No opportunity was given to the respondent to lodge answers. The respondent, who had in the meantime presented a petition to the Dean of Guild Court for warrant to erect, appealed, and, pending the appeal, so altered the character of the hoarding as to render it a materially different structure.

Circumstances in which the Court, having repelled an objection to the competency of the appeal taken on the ground that it was an appeal upon fact, and holding that the hoarding in question fell within the section as erected on land adjoining a street, on an undertaking not to enforce the interlocutor appealed from provided the respondent took such steps as the Dean of Guild might think proper to render the structure secure, affirmed the Dean of Guild's interlocutor on the ground that the statute required the hoarding to be to his satisfaction, not to that of the Court.

Observed (per the Lord President) that the Dean of Guild was in error in not allowing the respondents to lodge

answers.

On 23rd December 1910 George Somerville, Procurator-Fiscal of the Dean of Guild Court, Edinburgh, presented a petition to the Dean and his Court against the New Edinburgh Billposting Company, 30 St Andrew Square, Edinburgh, in which, after setting forth that a certain hoarding erected (without warrant) by the Company upon ground at London Road, Edinburgh, was unsafe, he craved the Court to ordain the respondents either to render it secure or to remove it, and failing their doing so within a definite time, to grant warrant to and authorise the Master of Works to remove it at their expense.

On 27th December the Dean of Guild, after hearing parties and visiting the structure, found that it was insecure and incapable of being rendered safe, and accordingly ordained the respondents to remove it within ten days, and failing their doing so granted warrant to the Master of Works to remove it at their expense.

The respondents, who had on 13th December presented a petition to the Dean of Guild Court for warrant to erect, appealed.