McKendrick v Sinclair

Collateral relatives have no title at Scots common law to recover damages for a death through the ordinary action of reparation, even where they received financial support from the deceased. The ancient remedy of assythment cannot circumvent that rule merely because the defender’s alleged negligence could amount to culpable homicide.

A claim for true assythment must fall squarely within the historical remedy. Mere civil averments of criminal conduct are insufficient where no prosecution has occurred and guilt has not been established by conviction, remission, fugitation or an equivalent recognised circumstance. The House left open whether assythment could remain competent in some exceptional modern circumstances.

The appellants were the sister and two brothers of a labourer who was killed by an electric shock at work. They alleged that the respondent works manager had culpably and recklessly failed to act after being warned of an earlier electric shock. No criminal proceedings were brought against him.

Because collateral relatives lacked title to bring an ordinary action of reparation for the death, the appellants sought £7,000 for solatium and loss of support in the name of assythment. The Lord Ordinary allowed proof before answer. The Second Division recalled that interlocutor and dismissed the action as irrelevant.

The central issue was whether the ancient Scottish remedy of assythment permitted collateral relatives to recover upon civil averments of culpable homicide where there had been no prosecution, conviction, remission or fugitation.

1. The appeal was dismissed unanimously. Lord Reid and Lord Kilbrandon held that the appellants’ averments did not satisfy the historical conditions of true assythment. Lord Diplock agreed with Lord Kilbrandon. Lord Simon of Glaisdale concurred in the result and regarded revival of the remedy in these circumstances as anomalous and anachronistic.

2. Per Lord Kilbrandon, the ordinary Scottish action of reparation for death is confined to classes of relatives between whom and the deceased there was a mutual legal obligation of support. Collateral relatives therefore lack title to claim either solatium or patrimonial loss, notwithstanding actual dependency. The established rule in Eisten v North British Railway Co could now be changed only by legislation.

3. Per Lord Reid, assythment historically required a crime causing death or personal injury. It was distinct from the later civil remedy for negligence, although the same terminology had often been used for both. Assythment was not invariably dependent upon a royal remission, since historical examples showed that it could accompany punishment short of death.

4. Per Lord Reid, the decisive defect was that the respondent had never been prosecuted. Mere averments in a civil action that his conduct amounted to culpable homicide could not supply the necessary historical basis. Guilt had first to be established, or at least readily inferred from a recognised circumstance such as a pardon, a court-martial verdict or fugitation. The present claim went materially beyond the old authorities.

5. Per Lord Kilbrandon, the appellants could not satisfy the requirements of the old criminal remedy and had no title to pursue the newer civil remedy. He reserved the general question whether assythment remained competent. Lord Reid likewise declined to hold that a common-law remedy necessarily disappeared through disuse, while insisting that any attempted revival must fall squarely within the old law.

6. Lord Simon considered, by analogy with English common law, that a dormant rule could not be revived where its operation would be grossly anomalous and anachronistic. The House nevertheless recognised the possible injustice caused by excluding financially dependent siblings and suggested legislative consideration.

1. House of Lords: The appeal was dismissed unanimously: [1972] UKHL 9.
2. Second Division of the Court of Session: On 26 March 1971 the court recalled the Lord Ordinary’s interlocutor, sustained the defender’s pleas and dismissed the action.
3. Lord Ordinary: Lord Avonside held that assythment remained competent, rejected the defender’s objections and allowed proof before answer.