DICK v BURGH OF FALKIRK

A deceased person’s commencement of a personal injury action does not extinguish the separate claim which qualifying relatives acquire upon the person’s death. The executor may continue the deceased’s action, including a claim for solatium, while the relatives recover for their own grief and loss of support.

The relatives’ claim depends upon an actionable wrong against the deceased, but it is not a representative claim through the deceased. Concurrent claims are therefore competent, provided that the court prevents duplication of damages and, where possible, arranges for them to be tried together.

A workman raised a negligence action against his employers for personal injuries, solatium and patrimonial loss. He died while the action remained pending, allegedly from those injuries. His widow was sisted as pursuer in her capacity as executrix-dative.

By amendment, she sought both to continue the deceased’s claim as executrix and to claim personally for solatium and loss of support. The Lord Ordinary refused the amendment, and the Second Division refused her reclaiming motion, because Darling v Gray & Sons (1892) 19 R (HL) 31 was indistinguishable and binding.

The issue before the House was whether that authority should be overruled and the widow’s personal claim permitted to proceed alongside the executrix’s claim.

1. Appeal allowed unanimously. Lord Wilberforce and Lord Kilbrandon delivered the substantive speeches. Viscount Dilhorne, Lord Diplock and Lord Edmund-Davies agreed that the appeal should be allowed. The interlocutor under appeal was reversed.
2. Per Lord Wilberforce and Lord Kilbrandon, a relative’s claim arising upon death is separate from the deceased’s personal claim. It compensates the relative’s own grief, loss of companionship and loss of support. Its validity nevertheless depends upon the defender having committed an actionable wrong against the deceased. Settlement, renunciation, an adverse decree or contributory negligence affecting that liability may therefore bar or reduce the relatives’ claim.
3. Per Lord Kilbrandon, commencement of proceedings by the deceased is different from settlement, renunciation or decree. It neither extinguishes the defender’s underlying liability nor destroys the claim which qualifying relatives acquire on death. The doctrine of litis contestatio, even if it changes the juridical character of the deceased’s action, cannot extinguish the defender’s liability to the dependants.
4. Per Lord Wilberforce and Lord Kilbrandon, allowing the executor’s and relatives’ claims to proceed concurrently is not an impermissible extension of the class entitled to sue. It recognises two distinct heads of loss flowing from the same wrongful conduct. The court can prevent any duplication of damages by making a just assessment, and modern procedure permits the claims to be tried together where possible.
5. Darling v Gray & Sons (1892) 19 R (HL) 31, also reported as Wood v Gray & Sons [1892] AC 576, rested on no maintainable principle and produced unjust results. The House declared it no longer authoritative and overruled it. Its distinction between deaths occurring before and after the injured person commenced proceedings was unwarranted and arbitrary.

1. House of Lords: Allowed the widow’s appeal unanimously, overruled Darling v Gray & Sons (1892) 19 R (HL) 31 and reversed the interlocutor under appeal.
2. Second Division of the Court of Session: Refused the reclaiming motion on 11 December 1974, holding that Darling v Gray & Sons was indistinguishable and binding.
3. Lord Ordinary: Refused as incompetent the proposed amendment adding the widow’s personal claim because the deceased had commenced the pending action which she continued as executrix.