Scottish Court of Session Decisions

This was an appeal in an arbitration under the Workmen's Compensation Act 1897, before the Sheriff-Substitute at Edinburgh ( Henderson), between the Niddrie and Benhar Coal Company, Limited, appellants, and Mrs Mary Peacock, widow, and others, the children, of George Peacock, miner, claimants and respondents.

The facts admitted, as set forth in the stated case, were as follows:—“Peacock was killed by accident in one of the appellants' pits on 1st September 1901. The respondents, his widow and children, were wholly dependent upon him. Deceased entered the employment of the appellants on Thursday, 15th August 1901, and worked on Thursday, Friday, and Saturday of that week, but did not work on Sunday, 18th August. He then worked continuously from Monday, 19th August, to Sunday, 1st September (when he was killed), including Sunday, 25th August. On Sunday, 1st September, he had earned a full day's wage before he met with the accident from the consequences of which he died. While working as above described he was paid at the rate of 5s. 10d. per shift.”

Upon these facts the Sheriff-Substitute held “that the average weekly earnings of the deceased, calculated on the footing of a seven days' week—the deceased having worked fourteen days continuously prior to the accident—were £2, 0s. 10d. sterling,” and gave judgment awarding £300 of compensation.

The questions of law for the opinion of the Court were—“(1) Whether the period of the employment of the said deceased George Peacock having extended from Thursday, 15th August, till Sunday, 1st September 1901, inclusive, his average weekly earnings fall to be calculated by dividing his total earnings for said period by the four calendar weeks in which he was employed? (2) Whether the weekly earnings of the deceased were rightly calculated by me on the basis of a seven days' working week?”

The Workmen's Compensation Act 1897, First Schedule, provides—“(1) The amount of compensation under this Act shall be—( a) Where death results from the injury—(I) If the workman leaves any dependants wholly dependent upon his earnings at the time of his death, a sum equal to his earnings in the employment of the same employer during the three years next preceding the injury … and if the period of the workman's employment by the same employer has been less than the said three years, then the amount of his earnings during the said three years shall be deemed to be 156 times his average weekly earnings during the period of his actual employment under the said employer.”

Argued for the appellants—The Sheriff had proceeded on a wrong basis of calculation in disregarding the broken weeks during which the deceased had worked. The proper method for ascertaining the workman's average weekly earnings was to take the total sum earned and to divide that by the number of calendar weeks during which he had been employed— Small v. M'Cormick and Ewing, June 6, 1899, 1 F. 883, 36 S.L.R. 700; Cadzow Coal Company v. Gaffney, November 6, 1900, 3 F. 72, 38 S.L.R. 40; Nelson v. Kerr and Mitchell, June 8, 1901, 3 F. 893, 38 S.L.R. 645; Russell v. M'Cluskey, July 20, 1900, 2 F. 1312, per Lord Adam, 37 S.L.R. 931; Lysons v. Knowles (1901), A. C. 79. Applying that principle to the present case, it appeared that the workman had been employed during four weeks. The total amount earned must therefore be divided by four, and the result multiplied by 156 gave the compensation due under the Act. The Sheriff had erred through following the rule adopted by the English Courts, which was inconsistent with that laid down in Scotland.

Argued for the respondents—The Sheriff had adopted the proper basis of calculation, which was that laid down in Ayres v. Butteridge (1902), 1 K.B. 57, per Smith, M.R., at p. 64; Keast v. Barrow Hematite Steel Co. (1899), 15 T.L.R. 141; Waters v. Clower (1901), 18 T.L.R. 60; Jones v. Rhymney Iron Company (1902), 1 K.B. 57. The strictness of the formula for ascertaining compensation had been relaxed since the decision in Lysons, supra, and the Court was entitled to estimate what the workman would probably have earned.