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McKendrick v Sinclair
United Kingdom House of Lords
Mar 15, 1972
Smart Summary (Beta)
Factual and Procedural Background
The deceased, an employee of Company A, was fatally electrocuted at work on 3 March 1967. His siblings (“the Pursuers”) allege that the accident was caused by the culpable and reckless negligence of the works-manager (“the Defender”). Because Scottish common-law reparation actions allow only ascendants or descendants to claim for death, the Pursuers sued instead for “assythment” – an historic remedy said to compensate relatives of a person slain by crime. The Lord Ordinary repelled the Defender’s preliminary pleas and allowed proof. The Defender reclaimed; the Second Division recalled the Lord Ordinary’s interlocutor and dismissed the action. The Pursuers appealed to the House of Lords, which delivered the instant opinion on 15 March 1972.
Legal Issues Presented
- Does an action of assythment remain a competent remedy in Scots law?
- If competent, can a civil court entertain an assythment claim without a prior criminal conviction, pardon, or remission relating to the alleged homicide?
- Do collateral relatives (brothers and sisters) have title to sue for assythment in these circumstances?
Arguments of the Parties
Pursuers’ Arguments
- An action of assythment still exists in the common law; non-use does not extinguish common-law rights.
- Historic authorities (e.g., Pursuer cited Greenhorn, Machargs, Leith-hall) show that collaterals may sue and that civil proof of the crime is competent.
- Allowing the claim would cure the perceived injustice created by Eisten v. North British Railway Co., which bars collaterals from modern negligence actions.
Defender’s Arguments
- Assythment is obsolete, was superseded by the modern action of reparation (often called the actio injuriarum), and should be regarded as dead.
- Even if assythment survives, it is inseparable from the criminal process; without conviction or royal remission a civil court lacks jurisdiction.
- Public-policy considerations and nineteenth-century authority (Eisten) preclude extending liability to collateral relatives.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Greenhorn v. Addie, 17 D 860 (1855) | Distinguishes assythment (crime-based) from civil reparation; speaks of assythment in present tense. | Cited by both sides; majority read it as showing assythment was thought still competent in 1855 but limited to crimes. |
| Eisten v. North British Railway Co., 8 Macph 980 (1870) | Holds collaterals have no title in ordinary negligence actions; test for assythment is whether the act was a crime. | Central authority limiting collateral claims; Court declined to override its policy. |
| Horn v. North British Railway Co., 5 R 1055 (1878) | Obiter reference to assythment as “little in observance now.” | Used to illustrate nineteenth-century view that remedy was fading. |
| Machargs v. Campbell, M 12,541 (1767) | Civil court awarded assythment after murder conviction by court-martial. | Shown to be linked to prior criminal process; relied on by Pursuers. |
| Leith-hall v. Earl of Fife, M 13,904 (1768) | Assythment allowed where accused fled and was fugitated. | Pursuers said it proves civil proof is possible; majority distinguished circumstances. |
| Black v. North British Railway Co., 1908 S.C. 444 | Discusses historical transition from assythment to damages; seven judges assumed civil proof competent. | Examined but not followed as binding; context was not true assythment. |
| Black v. Cadell, M 13,905 (1804) / (1812) 5 Pat 567 | Early action for damages; sometimes mis-labelled assythment. | Used to show confusion between terms. |
| Brown v. McGregor, F.C. 26 Feb 1813 | Example of modern reparation supplanting assythment. | Illustrative only. |
| Stewart v. Story, 5 Brown Supp 646 (1785) | Last clear award of assythment after conviction for culpable homicide. | Cited to show remedy’s age. |
| Stewart v. LMS Railway Co., 1943 S.C. (H.L.) 19 | Lord Macmillan commends Sheriff M’Kechnie’s article noting assythment’s advantages. | Quoted to demonstrate continued academic interest but no modern use. |
| Drew v. Horne, M 13,904 (1611) | Payment of assythment after remission implies admission of guilt. | Historical background. |
| Guild v. Home, M 13,903 (1605) | Civil action after use of remission. | Historical illustration. |
| Wark v. Russell & Wardrop, 12 D 1074 (1850) | Shows word “assythment” used as synonym for damages. | Cited to evidence terminological confusion. |
| Gardner v. Fergusons (1791) | Early negligence action; influence of Roman law. | Cited in historical analysis. |
| Darling v. Gray & Sons, 1900 2F 29 (H.L.) | Warns against using worn-out analogy of assythment. | Used to criticise revival of archaic remedy. |
| Cooley v. Edinburgh & Glasgow Railway Co., 7 D 290 (1845) | Example of “assythment” used loosely for damages. | Supports argument that term lost technical meaning. |
| Clarke v. Carfin Coal Co., 1912 S.C. Cl. Div. 1 | Dependency required in negligence claims. | Used as contrast with unrestricted collateral claims under assythment. |
| Innes v. Magistrates of The City, (1830s) | Early negligence liability. | Referenced in historical survey. |
Court's Reasoning and Analysis
The House acknowledged the historical existence of assythment but examined whether it could be revived in modern litigation.
- Historic scope: True assythment was intertwined with criminal procedure; it acted as “blood-money” payable only where the offender avoided capital punishment through conviction of a lesser crime, remission or fugitating.
- Non-use and evolution: Nineteenth-century case-law shows the civil action for negligence, influenced by the Lex Aquilia, gradually supplanted assythment. No authentic assythment case has been recorded since 1785.
- Prerequisite of criminal process: The Defender had never been prosecuted, convicted, pardoned, or fugitated. Without such criminal foundation, the essential counterpart to assythment (the mitigation of punishment in exchange for payment) was missing.
- Title to sue: Even if assythment survived, its revival would re-introduce anomalies (e.g., unlimited classes of pursuers, damages assessed by defender’s wealth, no requirement of dependency) inconsistent with modern jurisprudence and policy reflected in Eisten.
- No desuetude rule breached: While common-law doctrines do not perish simply by non-use, the maxim cessante ratione legis cessat lex ipsa permits courts to refuse revival where the underlying rationale has vanished and revival would be “plainly unreasonable and inconvenient.”
- Conclusion: The traditional action of assythment is inapplicable on the pleaded facts; alternatively, if still extant it is irrelevant to the Pursuers’ circumstances.
Holding and Implications
APPEAL DISMISSED.
The House of Lords affirmed the Second Division: the action was incompetent and irrelevant. Collateral relatives remain barred from recovering damages unless and until legislation alters the scope of modern reparation actions. The judgment does not create new precedent but clarifies that historic assythment cannot be invoked in contemporary civil litigation absent the criminal prerequisites that once justified it.
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