Johnstone v. James Spencer & Co. [1908] ScotLR 802 (18 June 1908)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] Scottish Court of Session Decisions You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Johnstone v. James Spencer & Co. [1908] ScotLR 802 (18 June 1908) URL: https://www.bailii.org/scot/cases/ScotCS/1908/45SLR0802.html Cite as: [1908] SLR 802, [1908] ScotLR 802 [ New search ] [ Printable PDF version ] [ Help ] SCOTTISH_SLR_Court_of_Session Page: 802 ↓ Court of Session Inner House First Division. [Sheriff Court at Glasgow. Thursday , June . . 45 SLR 802 Johnstone v. James Spencer & Company. Subject_1 Master and Servant Subject_2 Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 13, and First Schedule (8) Subject_3 Jurisdiction of Arbiter Subject_4 Dependants — Illegitimate Child — Competency of Arbiter Deciding whether Claimant Illegitimate Child of Deceased Workman. Facts: In an arbitration under the Workmen's Compensation Act 1906 it is competent for the arbiter to decide incidentally, for the purposes of the arbitration, whether a claimant to compensation is the illegitimate child of a deceased workman. Headnote: The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), enacts—section 1 (3)—“If any question arises in any proceedings under this Act as to the liability to pay compensation under this Act… the question, if not settled by agreement, shall, subject to the provisions of the First Schedule to this Act, be settled by arbitration in accordance with the Second Schedule to this Act.” Section 13—“In this Act, unless the context otherwise requires … ‘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 … and where the workman, being the parent or grandparent of an illegitimate child, leaves such a child so dependent upon his earnings, shall include such an illegitimate child …” First Schedule (8)—“Any question as to who is a dependant shall, in default of agreement, be settled by arbitration under this Act.…” Page: 803 ↓ In an arbitration under the Workmen's Compensation Act 1906 brought in the Sheriff Court at Glasgow, in which Jeanie Wright Johnstone sought compensation for the death of William Johnstone, dock-labourer, Glasgow, from James Spencer & Company, shipowners and stevedores there, the Sheriff-Substitute ( Fyfe ) sisted proceedings and at the instance of the claimant stated a case for appeal. The case as stated by the Sheriff-Substitute set forth—“The following facts were admitted:—(1) Holt & Company are owners of the steamship ‘Yangtsze.’ (2) In October 1907 this vessel was put in the berth at Glasgow as a general ship to receive cargo for eastern ports. (3) Spencer & Company, who are stevedores at Glasgow, were employed by the shipowners to load the vessel. (4) William Johnstone was one of a squad of quay labourers employed by the stevedores, Spencer & Company. (5) Whilst engaged at the loading of the vessel on 2nd October 1907 William Johnstone accidentally fell into the hold and was killed. “The appellant Jeanie Wright Johnstone alleges that she is an illegitimate child of the said deceased William Johnstone. This allegation is denied. 1. I held that in this process I could not decide the disputed question whether Jeanie Wright Johnstone is the illegitimate child of the deceased William Johnstone. I accordingly sisted procedure in the arbitration process that she might establish her title in a competent Court.…” The questions of law were, inter alia —“(1) Whether sisting the action, in order that the appellant may establish in a competent Court that she is the illegitimate child of the deceased William Johnstone, was the proper procedure? (2) If so, whether, in the event of the appellant being ultimately successful in obtaining an award of compensation and a decree for expenses, the expenses of the legal proceedings, which may be necessary to establish her title as a dependant, will form part of the expenses of process in the application under the Workmen's Compensation Act? …” Argued for the appellant—By section 1 (3) of the Act any question arising in proceedings under the Act as to liability to pay compensation was, failing agreement, to be settled by arbitration. Moreover, section 13 of the Act defined dependant as including, inter alios , an illegitimate child, and section 8 of the First Schedule provided that any question as to who was a dependant was to be settled by arbitration. The Sheriff accordingly should for the purposes of the arbitration have decided the question of parentage. There was nothing extraordinary or novel in such a power— e.g . it had been held competent for a Sheriff to decide incidentally whether two parties had been irregularly married— M'Donald v. MacKenzie , February 6, 1891, 18 R. 502, 28 S. L. R. 404. Argued for the respondents—A construction of the statute which involved the decision of questions of status by persons not necessarily skilled in law should if possible be avoided. Here a slur might be cast upon a deceased workman without a defence being made by his nearest relatives. In M'Donald ( cit. sup. ) the husband could have claimed to be heard. The proper and ordinary course where such questions of status arose was to have them determined in a separate action— Swinton v. Swinton , March 20, 1862, 24 D. 833. The Statute 1 Will. IV, cap. 69, section 32, which declared actions for aliment to be competent in the Sheriff Court, did not thereby give the Sheriff jurisdiction to determine, even for the purpose of awarding interim aliment, whether a marriage, which was denied, had taken place— Benson v. Benson , February 14, 1854, 16 D. 555. So this Act did not give the arbiter jurisdiction to determine even for the purpose of compensation questions of parentage. Judgment: Lord President —In this case a claim is made by a child alleging itself to be the illegitimate child of a deceased workman. The employers answer, “You are not the illegitimate child of the workman,” and the learned Sheriff-Substitute has held that he cannot decide whether the child was the child of the workman or not, and he has sisted procedure in the arbitration process in order that the child might establish her title in a competent court. I think the matter is settled by the terms of the Act of 1906. Section 13 defines “dependant” as including illegitimate children, and by section 8 of the First Schedule any question as to who is a dependant is to be settled by arbitration under the Act. That seems to me to put upon the arbiter the clear duty of settling such a question as this. It is said that that would involve the decision of a question of status, whereby other persons might be prejudiced, and that such a question cannot be competently entertained by the Sheriff. But that is just part of the necessity of the situation, which was presumably faced by Parliament when the Act was passed. That is enough for the decision of the case, but I may add that it is not a novel idea that the inferior court should have to decide such questions incidentally for the purposes of the action, and of this a good illustration is found in the case of M'Donald v. Mackenzie , February 6th, 1891, 18 R. 502, where in a question between two parishes in a matter of settlement, the Sheriff had to decide whether two persons, not parties to the action, had been irregularly married. There the Sheriff had to decide the question for the purposes of the poor law, and here he has to decide, for the purposes of the Workmen's Compensation Act, a question which he could not decide otherwise as a question of status. Lord M'Laren —I concur. Lord Kinnear —I am entirely of the same opinion. Lord Pearson was absent. The Court answered the first question of Page: 804 ↓ law in the negative, found it unnecessary to answer the second question, recalled the Sheriff's sist of procedure, and remitted to him to proceed as accords. Counsel: Counsel for the Appellant— George Watt, K. C.— Macdonald. Agents— Paterson & Salmon, Solicitors. Counsel for the Respondents— Constable. Agents— Oliphant & Murray, W. S. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/scot/cases/ScotCS/1908/45SLR0802.html