Scottish Court of Session Decisions

This was a case stated for appeal by a Sheriff-Substitute of Lanarkshire ( Balfour) in an arbitration under the Workmen's Compensation Act 1897 between John M'Hugh, fitter's helper, Glasgow, claimant and appellant, and Barclay, Curie, & Company, shipbuilders, Whiteinch, respondents.

The following facts were found by the Sheriff-Substitute to have been admitted or proved—“(1) That the appellant was employed with the respondents as a fitter's helper, and on Monday, 28th October 1901, he met with an accident while working at the tank of a ship in the respondents' yard. (2) That the appellant, Who had not been previously in the employment of the respondents, entered on his employment on Wednesday, 23rd October 1901, and worked on the following Thursday, Friday, and Saturday, and that on Monday, 28th October, he had been working for a few hours, when he met with an accident. (3) That his wages were at the rate of 8 1 2;d. an hour, and his earnings for the week or period ending on Saturday, 26th October, amounted to £1, 4s., and his earnings for the Monday amounted to 2s. 6d., or £1, 6s. 6d. in all. (4) That a full working week at the work at which the appellant was engaged in defenders' employment consists of fifty-four hours, and the average working week of a fitter's helper in the respondents' employment is forty-five hours. (5) That the appellant as the result of said accident was incapacitated for work as a fitter's helper from the date of said accident until the 4th February 1902.”

On these facts the Sheriff-Substitute found in law (1) that the average weekly earnings of the appellant while in the respondents' employment amounted to 13s. 3d., and (2) that the respondents were liable in compensation to the appellant in the weekly sum of 6s. 7 1 2;d. from 12th November 1901 till 4th February 1902, which amounted to the sum of £3, 19s. 6d. He awarded said sum to the appellant as compensation, and found no expenses due between the parties.

The questions of law were as follows—“(1) Whether on the facts proved the compensation payable to the appellant should be 19s. 1 1 2;d. per week during the period of his incapacity, viz., from 12th November 1901 to 4th February 1902. (2) Whether the period of four days from Wednesday, 23rd October, till Saturday, 26th October 1901, should, for the purpose of ascertaining appellant's compensation, be treated as one week, and the few hours worked by appellant on 28th October 1901 should also be treated as one week for said purpose?”

The Workmen's Compensation Act 1897, First Schedule, enacts—“(1) The amount of compensation under this Act shall be … ( b) Where total or partial incapacity for work results from the injury a weekly payment during the incapacity after the second week, not exceeding fifty per cent. of his average weekly earnings during the previous twelve months, if he has been so long employed, but if not, then for any less period during which he has been in the employment of the same employer, such weekly payment not to exceed one pound.”

Argued for the appellant—There was no week unit in this case upon which to reckon the amount of earnings, and accordingly the day unit must be taken, and the average weekly earnings arrived at by considering what the appellant would probably have earned in the week— Lysons v. Andrew Knowles & Sons [1991], A.C. 79; Leonard v. Baird & Company, June 8, 1901, 3 F. 890, 38 S.L.R. 649; Ayres v. Buckeridge [1902], 1 K.B. 57; Cadzow Coal Company, Limited v. Gaffney, November 6, 1900, 3 F. 72, 38 S.L.R. 40; Nelson v. Kerr & Mitchell, June 8, 1901, 3 F. 893, 38 S.L.R. 645.

Argued for the respondents—“Average weekly earnings” must be held to mean the amount actually earned in the week, not the potential amount which might have been earned by the appellant during the week. Moreover, it must be assumed that the week was the ordinary trade week, ending on Saturday, unless a special trade week were averred. Even if the decision in Ayres v. Buckeridge, cit., as to hypothetical earnings, were sound, the case was distinguishable as depending on a special contract— Niddrie and Benhar Coal Company v. Peacock, January 21, 1902, 39 S.L.R. 317.

At advising—