Definition. Would Lord Shaw or Lord Macnaghten be equally as positive— SECT. 13. "The question of dependency is not a question of law at all; it Dependant. is purely a question of fact." It seems doubtful, and in each case we should be probably reminded that judgments are only to be read in the light of the actual point they determine. Since writing above, the case of Keeling v. New Monckton Collieries (i) has been decided by the Court of Appeal, who refused to be bound by judgments more or less obiter only as not being material to the point to be decided, and once again decided in favour of the dependant. Their Lordships will therefore soon have an opportunity of saying how far their strong opinions are to be qualified. In this case a wife had not lived with her husband for twentytwo years, and had supported herself by her own exertions. She had left on account of his cruelty, and he had never paid a penny to her support. The County Court judge awarded her 2631., and the respondents appealed on the ground that dependency was a question of fact, and here there was no doubt about the facts. They relied on the case of Hodgson v. West Stanley Colliery. The Court of Appeal dismissed the appeal. They held there is a presumption in favour of the dependency of the wife. "It is not rebutted by the mere fact of desertion. It is not rebutted by proof that de facto not one penny was being contributed by the husband to the wife's support at the time of his death. It is not rebutted by the evidence that the wife was in fact being kept alive and maintained by her relations as a matter of charity or kindness. It is not rebutted merely by evidence that the wife is not being supported by her husband or is maintaining herself by going to domestic service, earning small sums of money as a charwoman, or otherwise; it is not rebutted by proof that she was in the workhouse at the time of his death. The presumption can only be rebutted by there being reasonable evidence justifying (i) 4 B. W. C. C. 49. SECT. 13. a Court in coming to the conclusion that this presumption, like any other presumption, is in fact rebutted," per Cozens - Hardy, M. R. It would be interesting to know what evidence would be evidence of rebuttal if twenty-two years' absence and not a penny received the whole time is not evidence of being independent at the time of a man's death, i.e. independent not of the man himself, but independent of the earnings he was then making. How can a woman be dependent on earnings of which for twentytwo years she has never received a single farthing? Certainly, looking at the words as a matter of first impression, one would say dependency in fact and in fact alone was contemplated by the Act. Was the would-be-dependant in fact depending on the earnings of the deceased for subsistence or the comforts of life? The qualification introduced in Simmons v. White involved reading into the Act words not there, with the result they were speedily found not suitable to every class of case. On the other hand, treating the words dependent upon the earnings of the deceased as if they implied a legal obligation really involves ignoring the words "the earnings of," and making the Act read as if it were "dependent upon the deceased." Whatever rights, legal, moral, or otherwise, a wife may have on a husband, how can she be said to be dependent on earnings of which she never receives a farthing? For note it is their relationship together at the time of his death which is (as explained) to determine the dependency on his earnings. How far dependency in fact has been proved has been the subject of many decisions. Thus, a man who at the time of the workman's death was in the workhouse was held to have no right to compensation (k). As also a mother who was in a reformatory at the time of her son's death (1). But it was held otherwise in the case of a wife detained in a lunatic asylum (m). (k) Rees v. Penrikyber, &c. Co., (1903) 1 K. B. 259. 85. (m) Kelly v. Hopkins, 2 I. R. (1) Trainer v. Addie, 42 S. L. R. 84. Dependant. The fact that a dependant has claims, moral or otherwise, SECT. 13. against other members of the family will not affect his rights if in Definition. fact dependent on one only. Thus a widow with five sons, all of whom were able to support her, but who in fact had been solely supported by one unmarried son who lived with her, was held to have been wholly dependent on him (n). So a daughter who kept house for her father, but otherwise received no cash allowance, was held entitled (o). Similarly a daughter who kept house for her father, and had a lodger, was held wholly dependent because the lodger was not her lodger, but her father's, as the furniture of the house belonged to him (p). A somewhat curious case was that of Kelly v. Arrol (q). A father and son both earned about 24s. a week. The son, however, who added considerably to his income by successful betting, allowed his father 108. a week. On the son being killed, the father claimed as partially dependent on him. At first sight it would seem he was. But the Court were of opinion that if the father required more than 24s. to support himself, the son must have required at least the same amount. Therefore whatever allowance the son made could not have been made out of his earnings, but out of his illicit supplemental betting gains. They therefore disallowed the claim. Where a workman had been held putative father of an illegitimate child, which he resented, and would only pay to her support what he was compelled to do by law, it was held that on his being killed, her rights against his employers were limited to the total such workman could have been compelled to pay her, a sum which capitalized out at 781. The arbitrator had awarded 1507., as the minimum prescribed by the Act, 5l. 10s. to the father for funeral expenses, and the balance to the daughter. This award was set aside, and it was held the Act did not require the whole sum to be disposed of. So it was further held that (n) Rintoul v. Dalmeny Oil Co., 45 S. L. R. 809. (0) Moyes v. William Dixon, 42 S. L. R. 319. (p) Marsh v. Boden, 7 W. C. C. 110. (q) 42 S. L. R. 695. SECT. 13. reasonable funeral expenses are a proper charge on the fund available for compensation (r). Here it is material to observe that a dependant's rights are in no way affected by what happens after the death. The rights, whatever they are, are determined at the time of death. Thus whether or no a dependant has been provided for by insurance or other benefits, even if receivable in consequence of the death of the workman, will not affect the right to or the amount of the compensation to be received (s). What is alone material is that at the time of the death a dependant was wholly or in part dependent on the deceased at the time of his death, or would have been but for the accident occasioning it. At the time of death. These words are not to be always taken too literally. Where the deceased whilst working as a fisherman had sent home considerable sums-in 1906, 201.; in 1907, 351.;-and had made a remission in March, 1909, when working as a seaman, but had sent nothing during the immediate five months preceding his death, it was still held this did not negative the fact of dependency (t). SECTION 14. SPECIAL PROVISIONS AS TO SCOTLAND. 14. In Scotland, where a workman raises an action against his employer independently of this Act in respect of any injury caused by accident arising out of and in the course of the employment, the action, if raised in (r) Gourlay v. Murray, 45 S. L. R. 577. (s) Pryce v. Penrikyber, (1902) 1 K. B. 221. (t) Robertson v. Hall Bros. S.S. Co., 3 B. W. C. C. 370. Special Irovisions as to Scotland. 43 & 44 Vict. c. 42. the Sheriff Court and concluding for damages under SECT. 14. the Employers' Liability Act, 1880, or alternatively at common law or under the Employers' Liability Act, 1880, shall, notwithstanding anything contained in that Act, not be removed under that Act or otherwise to the Court of Session, nor shall it be appealed to that Court otherwise than by appeal on a question of law; and for the purposes of such appeal the provisions of the Second Schedule to this Act in regard to an appeal from the decision of the sheriff on any question of law determined by him as arbitrator under this Act shall apply. SECTION 15. PROVISIONS AS TO EXISTING CONTRACTS AND SCHEMES. c. 37. 15. (1) Any contract (other than a contract substituting the provisions of a scheme certified under the Workmen's Compensation Act, 1897, for the provisions 60 & 61 Vict. of that Act) existing at the commencement of this Act, whereby a workman relinquishes any right to compen- · sation from the employer for personal injury arising out of and in the course of his employment, shall not, for the purposes of this Act, be deemed to continue after the time at which the workman's contract of service would determine if notice of the determination thereof were given at the commencement of this Act. (2) Every scheme under the Workmen's Compensation Act, 1897, in force at the commencement of this Act shall, if re-certified by the Registrar of Friendly Societies, have effect as if it were a scheme under this Act. |