Single Record

Full Details

Surname

O'CONNOR

Forename

Andrew

Day

29

Month

03

Year

1937

Age

23

Occupation

Colliery Oncost worker

Mine/Quarry Name

Polmaise, No.2 Pit

Mineral Worked

Coal

Owner

Archibald Russell Ltd

Location

Stirling

County

Stirlingshire

Details of Event

29 March 1937: Court of Session - Dependency Question - Mother’s Successful Appeal - Fatal Accident Sequel - The Second Division of the Court of Session yesterday gave judgment in an appeal in an arbitration under the Workmen’s compensation Act, 1925, relating to a claim preferred by the mother of an illegitimate child on his behalf in respect of the death of the father who sustained injury by accident arising out of, and in the course of his employment at Polmaise No.2 Pit on February 25, 1937. There was no dispute as to paternity nor as to the fact of dependency. The only issue was whether on the facts found by the arbitrator, Sheriff-Substitute J. Dean Leslie, the dependency of the child was total or partial. The child was born on August 27, 1936. From his birth onwards he lived with his mother in her parents’ house. The deceased workman paid the mother 15s for his child in September 1936 and 5s on each of three occasions in February 1937. For unspecified periods between the date of the birth and the date of the accident he was unemployed. He died as the result of the pit accident on March 29, 1937. At the date of the accident the workman was in employment and earning a wage at the rate of £2 10s per week. The workman and the child’s mother had arranged to marry on January 1, 1937, but some weeks before that date they departed from their purpose to marry on that date on the advice of the woman’s father, as the workman was then unemployed. The parties renewed their purpose to marry, and on February 6. 1937, they intimated that purpose to the registrar of births in Stirling, and arranged with the Roman Catholic clergyman at Fallin to celebrate the marriage on February 27, 1937. Publication of that was made in the Roman Catholic Church at Fallin. On the night of the accident the workman asked the mother of his child if she would still marry him as he was (he was paralysed from the waist downwards), and to that she consented. Upon those facts Sheriff Substitute Dean Leslie reached the conclusion that the child was only in part dependent upon the earnings of the workman at the time of his death, upon the footing that in alimenting an illegitimate child the father would pay the mother the customary aliment, which ordinarily means a payment of 4s 6d a week, the mother having claimed aliment on the basis that the deceased workman was in her view responsible for one half and not the whole of what was required for the maintenance of the child. The Division sustained the appeal, answering the main question in the case to the effect that on the facts the arbitrator was bound to hold that the dependency of the child on the deceased workman was total. The case was remitted back to the arbitrator to assess as for total dependency. Lord Wark, who gave the leading opinion, expressed the view that the authorities established the proposition that, in considering the question of dependency of an illegitimate child, the arbitrator was not only entitled but bound to have regard to the declared intention of the workman, who bad acknowledged paternity, to marry the mother if the facts showed that, but for the accident that intention would have been carried out. In other words, he must take the intention frustrated by the accident for the deed, and decide the question of dependency as if the marriage had taken place. In the present case the arbitrator had found in fact that, but for the accident, the workman would have married the child’s mother. The child would have been living in family with his father and mother. Mr Clyde, continued his Lordship, did not seriously contest this view. But he argued that even if the arbitrator was bound to proceed upon that footing, he was not bound to find total dependence. He maintained that it was still open to the arbitrator to hold partial dependence since the workman might have lost his employment and been unable to support his son, or might have left the child in the custody of his wife’s parents. Those appeared to his Lordship to be mere speculations. At the time of the accident the workman was in full employment, and in a position to support his wife and family; and there was nothing in the case to show that he would not have been able and willing to do so at the date of his death but for the incapacity due to the accident. It was precisely to exclude such considerations as Mr Clyde’s argument involved that the statute took the death as the date to be looked at in considering the question of dependency. In his Lordship’s opinion, if he found the intention to marry proved, as, in fact, he did, the arbitrator was not, only entitled but bound to hold total dependency established. The Lord Justice-Clerk and Lords Mackay, Wark. and Jamieson concurred. Counsel for the Appellant—Mr Arthur P. Duffes K.C. and Mr F. C. Watt Solicitors —William Geddes & Co. Edinburgh; and D. J. Ross, Stirling. Counsel for the Respondents—Mr J. L Clyde. K.C. and. Mr L H. Shearer. Solicitors —W. & J. Burness, W.S., Edinburgh; and J A. M’Ara, Glasgow. [Scotsman 21 June 1939]