Scottish Court of Session Decisions

At advising on 15th July 1965,—

LORD WHEATLEY .—In this action a father and mother each sue the defenders for damages consequential upon the death of an unmarried son, whose death is alleged to have been caused by the negligence of the defenders. Each parent tables an independent claim and has an independent conclusion for damages. They aver that they have each suffered great grief at the untimely death of their son, and that they have each sustained financial loss by being deprived of the financial support which he provided to them. The averments relating to the latter claim are that at the time of the accident the deceased was earning about £15 a week, was unmarried, lived at home with his parents and contributed £6 a week to the household expenses and for their support. It is also averred that the father has been unemployed for some time and that both the father and the mother were largely dependent on the income provided by the deceased. The first plea in law for the pursuers is in the common form of a plea in law where two pursuers seek reparation in the same action arising out of the same injuria, viz.:

"The pursuers, having suffered loss, injury and damage through the fault of the defenders as condescended on, are entitled to reparation from them therefor."

The defenders took a plea to the competency of the action as laid at the instance of the mother, and it was this plea which they unsuccessfully argued before the Lord Ordinary. When the case was opened in this court, senior counsel for the defenders sought and was granted leave to amend his pleadings by adding a plea in law to the effect that the mother had no title to sue this action. The challenge of the mother's right and title to prosecute the present action turns on the interpretation of subsection (1) of section 1 of the Law Reform (Damages and Solatium) (Scotland) Act, 1962. Prior to the passing of that Act, a claim by a mother in circumstances like the present was not entertained (to use a neutral expression) by our courts while the father was still alive. This was established by a train of authority culminating in Laidlaw v. National Coal Board, and the plea under which such a claim was normally rejected was the plea of no title to sue. The said subsection is in the following terms:

"Notwithstanding any rule of law, it shall not be a bar to any right of a mother to recover damages or solatium in respect of the death of her child that the father of that child is alive."

Three arguments were advanced by the defenders before the Lord Ordinary in support of their contention that the action at the instance of the mother was incompetent. The first was that, where an action is brought for damages and solatium for the death of a child, it has always been the law that the father sued in his name, or capacity, as head of the family and that such a claim comprehended the mother's loss. This argument was rejected by the Lord Ordinary and counsel for the defenders expressly stated that they did not intend to repeat it before this court. The second argument was that a mother never had a right to prosecute a claim such as this while the father was alive, and that accordingly there was no right from which a bar could be removed by subsection (1) supra. In the result, therefore, the sub-section is nugatory. The third argument was that, esto the mother did have a right which was barred by the existence of the father, the mischief which the subsection sought to cure was the case where there was a mutual and an immediately and directly prestable obligation between the mother and the child, which might fulfil the conditions normally giving rise to a claim of this nature, yet such a claim for damages and solatium was barred by the fact of the father being in life. These two latter arguments, which were repeated before this court, were also rejected by the Lord Ordinary, who repelled the only preliminary plea then before him, namely, the plea to competency, and allowed issues. It is against his interlocutor giving effect to that judgment that the present reclaiming motion has been taken.

The terms "father" and "husband," "mother" and "wife" have been freely interchanged, and it is desirable to make it clear that the situation with which we are dealing in this case is that where the father and mother are married and the child is a child of that union, a situation which does not necessarily prevail when these terms are intermixed.

In deciding the issue which we are called upon to determine I deem it desirable to consider right away the terms of the Act of Parliament which is said to validate a claim which was previously an invalid one. If the first argument advanced by the defenders is based on correct premises, it is a logical one. Subsection (1) supra enacts that it shall not be a bar to any right of a mother to recover damages in respect of the death of her child that the father of the child is alive. This manifestly seeks to remove a bar which, at the passing of the Act, existed to prevent any right of the mother being exercised. If the mother had no right, then you cannot remove a bar from nothing, and so the subsection is meaningless. This narrows the issue to consideration of the question whether as at the passing of the Act a mother had any right to recover damages or solatium in respect of the death of her child while the father of that child was alive.

The long title of the Act, at which we are entitled to look, runs:

"An Act to amend the law of Scotland relating to damages and solatium by extending the entitlement of parents to sue in respect of the death of a child, and to remove a doubt as to the title of a child to sue in respect of the death of his mother while his father is alive."

The first part of the long title refers to extending the entitlement of parents to sue in respect of the death of a child. The second part relates to the title of a child to sue in respect of the death of his mother, and this is given effect to in section 1 (2). There are only two other material enactments. One relates to the right of a mother in relation to a legitimate child, the other to the right of a parent in the case of an illegitimate child. Both of these would seem to be comprehended in the first part of the long title extending the entitlement of parents to sue in respect of the death of a child. Section 1 (1), therefore, is introduced as a measure whereby the mother's entitlement to sue is extended. The subsection itself refers to any right of the mother to sue in respect of the death of her child, and that presupposes that some right exists. It is clear, therefore, that Parliament proceeded on the basis that the mother had some right, and that she was barred from exercising that right by reason of the fact that the father was alive. It is also clear that Parliament regarded this bar as having been created by a rule of law. Of course, Parliament may have been wrong in proceeding on that basis. If the mother had no right in these circumstances, there was no right to be extended, and no right was being created. All that was being done was to remove a bar to any existing right. If the contention of the defenders is right, the subsection is nugatory, and Parliament has just enacted nonsense. If that be the logical conclusion from a soundly based argument, then the court must accept it and say so, leaving it to Parliament, if so advised, to rectify its own mistake. The courts, however, have always leant towards an interpretation of a statute which makes it meaningful and purposeful and operable, and away from a meaning which renders it nugatory and inoperable. Lord Dunedin said in Murray v. Inland Revenue (at p. 124):

"It is our duty to make what we can of statutes, knowing that they are meant to be operative and not inept, and nothing short of impossibility should in my judgment allow a Judge to declare a statute unworkable."

Viscount Simon, L.C., in Nokes v. Doncaster Amalgamated Collieries, Ld. expressed himself thus (at p. 1022):

"The golden rule is that the words of a statute must prima facie be given their ordinary meaning. We must not shrink from an interpretation which will reverse the previous law, for the purpose of a large part of our statute law is to make lawful that which would not be lawful without the statute, or, conversely, to prohibit results which would otherwise follow. Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words, but where, in construing general words the meaning of which is not entirely plain there are adequate reasons for doubting whether the Legislature could have been intending so wide an interpretation as would disregard fundamental principles, then we may be justified in adopting a narrower construction. At the same time, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result."

The learned author of Craies on Statute Law (6th ed.) states at p. 96:

"The most firmly established rules for construing an obscure enactment are those laid down by the Barons of the Exchequer in Heydon's case, which have been continually cited with approval and acted upon, and are as follows: ‘That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered: (1) What was the common law before the making of the Act (2) What was the mischief and defect for which the common law did not provide (3) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth (4) The true reason of the remedy. And then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief and pro privato commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico.’"

The learned author goes on to say that these rules are still in full force and effect, with the addition (under reference to judicial authorities which are quoted) that regard must now be had not only to the common law, but also to prior legislation and to the judicial interpretation thereof.

I approach the problem mindful of these adjurations.

Criticism was made of the framing of section 1 (1), and it was said that if it had been the intention of Parliament to give a right to the mother, equal to that of the father while the latter was still alive, it would have been simple to do so in positive terms. Be that as it may, Parliament did not do so, and one is entitled to ask "Why ?" The answer is plainly that Parliament thought that the mother did have a right, but that, as the law had developed and had been decided by the courts, this right could not be exercised because of the fact that the father was alive. Accordingly, by removing the bar by statutory enactment, the right, which had always existed, was now free to be exercised. Parliament did not seem to have any doubts about the existence of this right, because recourse was not had to the "removal of doubt" formula, which was invoked in section 1 (2), although the right of a child to recover damages or solatium in respect of the death of his mother, despite the fact that his father was alive, had been recognised in and hallowed by practice. This, incidentally, highlights the anomaly of the pre-existing law, under which a child could sue for the death of his mother while his father was still alive, but a mother could not sue for the death of her child while the father was still alive. It is difficult to see how such a position ever stemmed from principle, particularly a principle based on mutual but primary obligations of support, and at the best it would appear to have developed from some arbitrary or consuetudinary rule of law. It is even more difficult to believe that Parliament intended to leave that anomaly in existence in a remedial statute designed to extend the entitlement of parents to sue in respect of the death of a child.

It is legitimate, therefore, to infer from the wording of the statute, that Parliament proceeded on the basis that (1) the mother had a right, about which no doubt existed which had to be removed; (2) that there was a bar to her exercise of that right, which had to be removed; and (3) that this bar, i.e., the fact that the father was still alive, stemmed from a rule of law. The use of the term "any right" will have to be considered in relation to the second argument proponed by the defenders, and it is sufficient to say that the existence and establishment of any right, whatever it may be, resident in the mother is sufficient to counter the first argument of the defenders.

Against this background I now turn to examine the defenders' arguments.

The first argument can be stated in simple form. The rights arising out of the death of the child can only be determined at the moment of the child's death. There might be a number of people who in certain circumstances might have a right to claim damages in respect of the child's death, but the person or persons who in fact have a right to a claim which would be recognised by the law can only be determined at that moment. When such a person or persons are determined, it means that all other persons who in different circumstances might have a right to claim have in fact no right to claim, and so no right. Such a person is a mother whose husband (and father of the child) is still alive. The criteria were those enunciated by Lord President Clyde in Ewart v. R. & W. Ferguson (at p. 285):

"First, the existence of the obligation of mutual support must be established as at the date of decease, because that is the only relevant date for ascertaining its existence; and Second, the mutual obligation must be one which at that date was immediately and directly prestable (in case of necessity) between the claimant and the deceased."

If these tests are applied to circumstances such as exist in the present case, the mother had no mutual obligation of support immediately and directly prestable at the date of the child's death, because of the mutual obligation then existing between the father and the child. The mother accordingly had no right as at the date of the child's death, which was the qualifying date. So ran the argument.

The most recent decision in this field is Laidlaw v. National Coal Board . In that case a plea of no title to sue was upheld where a mother raised an actio injuriarum in respect of the death of her child when the father was alive at the time when the action was brought, but the father had sent to the defenders a written renunciation of his claim. The father had neither lived with nor supported the pursuer or the deceased child since about the birth of the latter. The authorities from Eisten v. North British Railway Co. onwards were canvassed and discussed and I find it unnecessary to cover that ground again. It is, however, profitable to note the general grounds on which such claims were originally based, and to observe how the pre-Act position developed. In Eisten Lord President Inglis said (at p. 984), dealing with an actio injuriarum where the claim was a derivative one arising out of a death:

"It cannot be disputed that hitherto, in our law, no such derivative claim has been sustained, except arising from the relationship of husband and wife, or of parent and child; and, on the other hand, it is true that, in the law of Scotland … a claim of this kind is sustained at the instance of a wife for the death of her husband, a husband for the death of his wife, a parent for the death of his child, and a child for the death of his parent, when the death has been caused by delict or culpa … It appears to me that the true foundation of this claim is partly nearness of relationship between the deceased and the person claiming on account of the death, and partly the existence during life, as between the deceased and the claimant, of a mutual obligation of support in case of necessity. On these two considerations in combination our law has held that a person standing in one of these relations to the deceased may sue an action like this for solatium, where he can qualify no real damage, and for pecuniary loss in addition, where such loss can be proved."

Prima facie a mother and child fall within these qualifications. The restriction of the title to sue in such actions has been based on no principle, but on usage and on unwillingness to extend the classes beyond those already recognised. This has been repeated time and time again in the judgments in the cases between Eisten and Laidlaw.

One of the anomalies arising from this approach is the one already noted, namely, that the child can sue along with the father for the death of the mother, but the mother cannot sue along with the father for the death of the child. The absolute disentitlement of the mother to sue in respect of the death of the child where the father is alive, as established in Laidlaw, excludes even the case where the mother was the person to whom the child had in fact to look for the obligation to support because of the incapacity or otherwise of the father—cf. Fraser on Parent and Child, (3rd ed.) p. 100. Yet if the father is dead, there is no dispute about the mother's title to sue in such a case. In my opinion, the tests which have been applied are the tests as to whether the mother had a title to sue in view of the restrictions placed on entitlement to sue in such actions, and not whether she had a right of some sort. Throughout the judgments reference is made to the mother's "contingent" right or the father's "preferable" right or similar terms, and "right" and "title" seem to get confused at times. The immediately and directly prestable test relates to title, but in my view does not determine rights. A right may exist which does not provide a title because of the existence of a preferable right, or because it is only a contingent right. Nevertheless it is a right and it would fall within the term "any right." Such a right is resident in a mother vis-à-vis her child, yet that right has in the past not yielded her a title because of a rule of law which provided that her title was excluded by the father's preferential one, which was in effect a bar to her right to recover damages or solatium in respect of the death of her child because the father of the child was alive. If the law prior to the passing of the statute be so viewed, then the subsection makes sense, and in my opinion that is the proper approach to the issue. I accordingly reject the first argument proponed by the defenders."

The second argument was that, assuming that the mother had some right, the mischief which the subsection set out to cure was the situation where the position of the mother was made anomalous or a situation of extreme hardship was created by reason of the absolute nature of the decision in Laidlaw, under which the mother's claim in all circumstances was excluded by reason of the fact that the father was alive. Such cases, for example, were cases of waiver of his claim by the father, or cases of desertion by or disappearance of the father, or the father's incapacity to maintain the child for one reason or another. I can see no justification for placing such a narrow and restricted meaning on the subsection. It seems to me to be based on the passage in Fraser on Parent and Child quoted above and to depend on the factual obligation on the mother to support the child because of the "incapacity or otherwise" of the father. But "any right" means "every right," and if in the pre-Act law a mother had a right co-extensive with the father's (as she had when she was a widow) but she was precluded from exercising that right because of a rule of law which denied her a title to sue because of the father's existence, then I do not see why this remedial statute should not be interpreted as having the wider meaning which would comprehend the right to claim in all cases and not just in the narrower field of cases desiderated by the defenders. Moreover, if this latter view were accepted, it would give rise to practical difficulties. Would there have to be inquiry, either ante omniaor in gremio of the proof or jury trial, to ascertain whether, for example, there was a de facto dependency by the child on the mother or vice versa at the date of the former's death because of the condition or conduct of the father ? Moreover, the allowance of the mother's claim in these circumstances would not exclude the father's claim, and so in such cases both parents would be entitled to claim, but in cases where the parents had been living in family with the child in normal circumstances there would only be a single claim, namely, that of the father. Such an interpretation is not an attractive one, and fortunately I see no reason for giving effect to it. The exclusion of the mother's claim while the father was alive, which developed as part of our consuetudinary law in an age when the legal relationship between husband and wife was markedly different from what it is today, and which owed its restrictive nature to the usages of those times, seems particularly inappropriate to our times, and in particular the exclusion of a mother's claim for solatium seems both unnatural and unrealistic. I am satisfied that this is the mischief which Parliament set out to cure, and in my opinion it has done so in this subsection. I am reinforced in this view by the consideration that in their different and perhaps devious phraseologies subsection (1) and subsection (2) are corollaries of each other, and this is yet another reason why the narrower interpretation of subsection (1) (which would continue, albeit in a lesser degree, the anomaly between the respective rights of mother and child) is unacceptable. In my opinion both arguments advanced by the defenders fail, and I would adhere to the interlocutor of the Lord Ordinary, repel the new plea in law of "no title to sue" tabled before this court, and refuse the reclaiming motion.

LORD WALKER .—The problem in this reclaiming motion is to arrive at a satisfactory construction of section 1 (1) of the Law Reform (Damages and Solatium) (Scotland) Act, 1962. The subsection is in the following terms:—

"Notwithstanding any rule of law, it shall not be a bar to any right of a mother to recover damages or solatium in respect of the death of her child that the father of that child is alive."

The difficulty of construction arises from the fact that the subsection is expressed negatively. The word "bar" has, I apprehend, no technical or precise meaning. It is an ordinary word of the English language. Now if the rule of law referred to in the subsection be expressed negatively—as can accurately be done by saying that a mother has no right to sue in respect of the death of her child survived by its father—what is the effect of the two negatives ? It is, I think, to remove a bar to the exercise of a non-existent right, which leads to the apparent absurdity that the subsection has no sensible effect—a result for which the reclaimers strenuously contended. On the other hand, if the rule of law be stated positively—as can with equal accuracy be done by saying that the mother has a right to sue except when her child is survived by its father—what is the effect of the positive and the negative ? In my opinion the effect is to remove the exception (or bar), with the consequence that the mother's right to sue is left pure and untrammelled by the fact that the father is alive.

The Lord Ordinary in his opinion says little about the mother's right to sue for the death of her child. It appears to me that her right was probably admitted in practice long before it came to be held that her title to sue was excluded by the existence of the father. The question was first raised in 1861, when Weems v. Mathieson reached the House of Lords. There the House deliberately affirmed the title of a widow to sue in respect of the death of her son. In Fraser v. Younger & Sons a widow sued in respect of the death of her daughter without challenge of title. I could not, however, agree with the Lord Ordinary in thinking that Hamilton v. Hermand Oil Co. was a joint action by father and mother, for only one sum of damages was awarded and the mother appeared as pursuer only "for her interest." In Whitehead v. Blaik Lord Kincairney (at p. 1046) thought there could be no question as to the right of a widow to sue on account of the death of her child. It can therefore be said that chronologically the mother's right to sue was affirmed in 1861, long before any qualification was imposed upon it by reference to the survivance of the father, namely, by Whitehead's case in 1893. These considerations tend to confirm my view that the rule of law can be accurately stated in the positive form that a mother has a right to sue except where the father is alive.

Reverting now to the question of construction, I think that, as this subsection can either be reduced to an absurdity, or on the other hand can be given practical effect, according as the rule of law to which it relates is stated in the negative or in the positive form, the subsection must have contemplated the positive form.

A subsidiary argument was advanced to the effect that if the subsection did give a mother any right to sue where the father survived, it did so only where the father was in some sense incapable. There are indeed cases, such as Aitken and Campbell, where the father had long disappeared without trace and yet the mere fact that he was alive, or presumed to be alive, was sufficient to defeat the mother's claim. There is much to be said for the good sense of allowing a mother in such circumstances to sue in lieu of the absent or moribund father. And it may be said that the fact that she could not do so was a mischief to be remedied by legislation. But I cannot think that that was the only mischief intended to be repaired by this subsection. Had it been the only mischief, the bar to be removed would have been expressed in some such words as "that the father though alive is absent or otherwise unable to sue." But to read such words into the subsection would be to go beyond construction.

In my opinion the effect of the subsection is to confer on the mother a title to sue in respect of the death of her child notwithstanding that the father of the child is alive. I would repel the plea to title added in the Inner House and refuse the reclaiming motion.

LORD CAMERON .—In this action, which is one at the instance of both parents of a deceased workman, the defenders, his employers, have challenged the title to sue of the female pursuer. If their challenge had been made before the passing of the Law Reform (Damages and Solatium) (Scotland) Act, 1962, it would have been unanswerable in light of the authorities and particularly the recent case of Laidlaw v. National Coal Board . The question therefore is whether that Act, and particularly section 1 (1) thereof, has so amended the law as to enable the female pursuer's title to be sustained. The Lord Ordinary has repelled the defenders' plea and sustained the female pursuer's title to sue. I am of opinion that he was correct.

Although the question at issue is primarily and essentially one of statutory construction, it is also necessary to look at the law as it stood prior to the amending statute in order to see what it was that the statute professed to amend.

The particular branch of law with which this case is concerned is peculiar and presents certain anomalous features. The foundation is the well-known case of Eisten v. North British Railway Co. and the equally well-known judgment of Lord President Inglis (at pp. 983–985). The category of persons who by this judgment were held to possess the right to recover damages for injury to feelings (solatium) and for pecuniary loss—actual or prospective—where they could establish it, was strictly limited, and that by two qualifications, nearness of relationship as between ascendants and descendants and the existence between the parties concerned of a mutual obligation of support in case of necessity. This has remained the basis on which all claims to recover damages for the death of a relation has rested, subject to a modification in the case of Ewart v. R. & W. Ferguson, to which I shall refer later. The line of authority which began with Whitehead v. Blaik and ended with Laidlaw has decided that a mother who seeks to recover damages for the death of a child has no title to sue an independent action during the lifetime of the child's father, subject to a possible modification of the general rule that in cases where it has been proved that the father has disappeared and could not be traced, his disappearance could be treated as equivalent to death, without the necessity for separate proceedings to presume the death (Ewart v. R. & W. Ferguson, per Lord President Clyde at p. 286; Cooper v. Fife Coal Co. ). But although the decisions are clear that a mother has no title to sue an independent claim of damages while the deceased child's father is alive, as these decisions have been solely on title to sue, they have not by necessary implication decided that a mother may not have in such circumstances a right to damages, which, however, cannot be asserted standing the superior or prior title of the father. It is also to be kept in view that prior to the decision in Whitehead v. Blaik a claim by both parents was sustained without challenge in the case of Hamilton v. Hermand Oil Co., which has never been formally disapproved, though obviously inconsistent with Whitehead and the cases which followed upon it. The pursuers there were the father and the mother "for her interest" and the decree was in favour of "the pursuers." Whitehead v. Blaik was expressly followed in Barrett v. North British Railway Co., in which Lord President Robertson said (at p. 1141):

"In the first place the case of Whitehead v. Blaik is direct authority for a father being the sole proper pursuer in a case of this kind."

That was a case under the Workmen's Compensation Act, 1897, and the question of law was whether a mother in the circumstances of that case was a "dependant" in terms of that Act. Section 7 (2) (b)of the Act of 1897 defined "dependants" as meaning in Scotland "such of the persons entitled according to the law of Scotland to sue the employer for damages or solatium in respect of the death of the workman, as were in whole or in part dependent upon the workman at the time of his death." Thus the decision proceeded upon an issue of title, though there was in fact partial dependency in the case of the mother. Thus there was the fact of relationship and of the discharge by the deceased child in a case of clear necessity of the obligation of support owed by him in such circumstances towards his parents. Yet the mother's claim failed upon the issue of title, determined by a plain application of the decision in Whitehead. Hamilton's case was not referred to in argument or in the judgment of the Lord President. The decisions in Aitken v. Gourlay and M'Nab and Campbell v. Barclay, Curle, & Co. merely illustrate the rule first expressed in the case of Whitehead. Again in neither of these cases was Hamilton referred to in argument or opinion.

In the case of Ewart v. R. & W. Ferguson Lord President Clyde would appear to have interpreted (if not extended) the doctrine of Eisten so as to limit the title of parties to sue to those instances in which the obligation of support was "immediately and directly prestable"—although this interpretation does not appear to have been invoked in the case of Kelly v. Glasgow Corporation .

In referring to this tract of decisions I have no intention of embarking on the task of searching for a basis in principle on which the authorities can rest—a task which, as Lord President Clyde observed in Laidlaw (at p. 58), has frequently been made and always discouraged. But to assist in construction of the Act it may be helpful to ascertain not only the precise scope of the decisions in which the previous law was embodied and the grounds on which the cases were decided, but also such elements of doubt or dispute as may be disclosed in judicial opinion as to the reasoning on which the decisions have been founded. What led the court in Whitehead to reject the mother's title to sue was expressly stated by the Lord President to be the unprecedented character of the action. It was this absence of precedent which also influenced the judgments of Lord Adam and Lord Kinnear in the same case. Lord M'Laren's judgment on the other hand (at p. 1049) proceeded upon a somewhat different ground, that the "father is the person who at least has the best right to institute an action of compensation for the loss of his son." I draw attention to the word "best." He added, perhaps significantly, "It may be a question whether, in the event of the father renouncing his claim or being unable from incapacity to prosecute a claim, the right might arise to the mother, but in the ordinary case it does not…" The opinions of the majority, however, make it clear that a title to sue was refused solely on the basis of novelty—though a mother fell within the classification of persons in whom a right to claim damages or solatium might rest in accordance with the doctrine of Eisten, the mutual obligation of support in case of necessity existing at least in posse between mother and son. The ratio of Lord President Robertson's judgment in Whitehead (at p. 1048) was that it was undesirable to extend this class of actions, "unless they can be justified on some principle which has already been established." Thus in essence it was upon the novelty of the claim rather than upon its competency that the court decided to refuse the pursuer's title to sue. As at the date of Whitehead the Married Women's Property (Scotland) Act, 1881, had been only twelve years in force, the novelty of the action was perhaps not so surprising, nor indeed of such weight. Once Whitehead was decided and stood without succesful challenge, the matter was no longer capable of argument. The strict application of Whitehead was relaxed, however, in Cooper v. Fife Coal Co., and also in the opinion of the Lord President in Ewart v. R. & W. Ferguson, where the idea of "notional death" was accepted, i.e., when a father had disappeared and could not be traced, he could be treated as if he were dead. This relaxation of the rigidity of the rule expressed in Whitehead at least opens the door to the possibility of a right subsisting but suppressed in the mother, which emerges when the better right of the father disappears by actual death or in circumstances which in a particular case are held by the court to be equivalent to death. In the case of Aitken v. Gourlay and M'Nab Lord Moncreiff, as Mr M'Ilwraith for the pursuer pointed out, expressed the opinion (at p. 590) that "if the father dies without exercising the right or discharging the claim, the mother's right to sue emerges," and in the latest case of Laidlaw reference is made by both Lord Russell (at p. 67) and Lord Sorn (at p. 69) to the father's "preferential" or "preferable" right to sue an action while he is in life as excluding the title of the mother.

It would therefore appear that as at the date of the 1962 Actthere was at least a current of judicial opinion, expressed by judges who concurred in decisions which denied the title of a mother to sue during the lifetime of a deceased child's father, he being her husband then or formerly, in favour of a rule that the mother's undoubted right to recover damages or solatium for the death of a child was only submerged during the father's lifetime, and not always then. Thus the rule of law based on precedent from 1890 is clear—though admittedly subject to qualification where disappearance of a father can be held equivalent to death—to the effect that, while the father is alive, the mother has no title to sue. But the idea of the existence in the mother of a submerged right to recover damages for her own loss on the death of a child, which might emerge in particular circumstances, even though the father's death could not be established, appeared even as early as Whitehead. It continued to make its appearance in judicial pronouncements in Aitken and finally in Laidlaw, was never rejected or disapproved, and was at least open to argument in 1962.

It is in this context that the statutory provisions in issue here have to be examined. The defenders' main contentions were two-fold and may be thus summarised:—(first) the bold proposition that section 1 (1) of the 1962 Act was without any effective meaning, because a mother had no right to bar in the circumstances figured in subsection (1); and (second) that, if it had to be given a meaning, it was only effectual for the limited purpose of giving a title where the father was proved to be incapable of discharging his primary obligation of aliment.

If the premise on which the first principal submission of the defenders was based were sound, there would be much apparent force in that drastic contention. But the subsection does not in the first place assert the existence of a right, the exercise of which was in fact barred by the existence of the father in life at the time of the mother's claim. What it does say is that the fact of the father being alive shall no longer be a bar to "any right" to recover damages or solatium. The rule of law which has hitherto operated as a bar to recovery of damages has not been based on anything other than absence of title in the mother. If that bar were removed (and it is a bar brought into operation not by the assertion of a better title by the father of a deceased child, because he may never assert his claim, but by the fact of his being in life), non constat that a mother could not assert successfully a claim to recover damages or solatium, and there is, as I have shown, ample support both in judicial opinion and in decided cases for the view that she could. Therefore I think that the premise on which this argument is founded—consisting as it does in an inquiry into the question of right, and therefore into the ground upon which the rule of law denying a mother title is based—is not so clearly correct as to compel acceptance of the rigid logic of this submission. I should, in any case, hesitate long before giving effect to so drastic a submission as the first presented by the defenders, and, while I think the drafts-manship of this subsection is unhappy, I do not think it is possible to say that the language is wholly without meaning. I therefore would reject the first contention of the defenders.

I turn now to their second and, to my mind, more formidable contention. The long title of the Act makes clear that the purpose of the Act was to establish entitlement. The language of section 1 (1) is clearly designed to further this purpose and, where possible, if the wording of a statute permits, an effective meaning is to be given to its language. Further, this is, and bears to be, a remedial statute. What section 1 (1) purports to do is to remove a "bar." The word "bar" as used here is not in my opinion used or intended to be used in any technical sense, but is used in its ordinary everyday sense of "barrier" or "obstacle." The barrier is created by the fact that a deceased child's father is in life and it is a barrier against a right to recover damages or solatium. But a right to recover predicates a title and an interest to claim. It is not the lack of an interest which has hitherto prevented a mother from recovering damages, but lack of effective title, and the reason for that (whatever the principle underlying the decisions) has been that the existence in life of the father has operated as a general but not universal bar against the successful assertion of the mother's title to sue, and therefore as a bar against her right to recover damages or solatium.

But there still remains the extent to which the subsection can be held to remove the bar. There is no specific limit on the generality of the language nor is this subsection prefaced (as is its immediate successor) by any reference to the removal of doubt. If, therefore, the language is capable of operating to remove the bar in cases when the father, though alive, is incapacitated in some measure from discharging his primary obligation of support, I do not see how it is possible to stop there. The wording of the subsection is perfectly general and not limited to specific instances, and I am of opinion that it does achieve the object which Parliament may be presumed to have intended and that it can and should be construed to entitle a mother to entertain at her own instance an action for damages or solatium for the death of a child.

I therefore think that the Lord Ordinary reached a sound conclusion and that his interlocutor should be affirmed.