Dick v Falkirk Burgh

LORD ROBERTSON'S OPINION.—[His Lordship narrated the material facts, and continued]—

In her minute of amendment the widow seeks to claim damages from the defenders both as executrix-dative qua relict and as an individual. In her capacity as executrix she claims damages of £20,000 for loss, injury and damage suffered by the deceased in respect of solatium, patrimonial loss and shortening of life.

As an individual and widow she claims £15,000 damages for loss, injury and damage, which includes solatium and loss of support.

It was argued on behalf of the defenders that the claims under the minute of amendment were incompetent and that it should not be received. In my opinion this argument is well founded. When a deceased has initiated a claim for damages for patrimonial loss and solatium which is taken up by his executrix, his dependants' right of action is excluded. This was decided in Darling v. Gray & Sons (1892) 19 R. (H.L.) 31, more fully reported sub nom. Wood v. Gray & Sons [1892] AC 576. This rule, though subsequently commented on adversely from time to time, has never been overturned or abolished. Its effect has in some cases been narrowed: viz., (a) in Bruce v. Alexander Stephen, 1957 S.L.T. 78 it was held that the abandonment by the executors of their action permits the relations to proceed with an action for solatium and loss of support; (b) an action may be maintained by the executors for patrimonial loss to the estate of the deceased up until the date of death without rendering incompetent an action by the relations for solatium and loss of support thereafter (McGhie v. British Transport Commission, 1964 S.L.T. 25; Gray v. North British Steel Foundry Ltd., 1969 S.C. 231, 1969 S.L.T. 273). But in these cases no action had been raised by the deceased prior to his death.

In the present case, however, where the action was raised by the deceased before his death and his widow as executrix has been sisted as a party, the rule of Darling v. Gray (supra) clearly applies: it is directly in point and I am bound by it. The minute of amendment is therefore incompetent in so far as it incorporates a claim by the executrix qua widow. As executrix she has a title to sue, but the minute of amendment cannot be competent in its present terms.

I may, perhaps, add that the whole law on this matter has been recently examined by the Scottish Law Commission. In their report (Scot. Law Com. No. 31) it is, inter alia, recommended that the rule in Darling v. Gray should be modified. This report was laid before Parliament on 24th July 1973. No legislation has followed thereupon and the old law stands.

I shall refuse the pursuer's motion.

The pursuer reclaimed, and on 11th December 1974 the Second Division refused the reclaiming motion.