Scottish Court of Session Decisions

This was an application on behalf of the Pumpherston Oil Company, Limited,

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for an order on John Cavaney, pit-head labourer, East Calder, Midlothian, to show cause why a case for appeal should not be stated in an arbitration between him and the said company, under the Workmen's Compensation Act 1897.

The circumstances were set forth in the appellants' note as follows:—“Upon 31st October 1901 the respondent, while in the employment of the appellants, met with an injury to his left hand, which at the time totally incapacitated him from earning wages. His average weekly wages for the twelve months prior to that date were 38s., and the appellants agreed to pay the respondent 19s. per week as compensation, and paid him said compensation up to 28th March 1902, when they ceased making payments thereof, on the ground that the respondent was from that date fitted to return to work.

“On 8th July 1902 the respondents lodged a memorandum of the foresaid agreement between him and the appellants for payment of compensation at the foresaid rate, which memorandum was recorded on 21st July 1902, and on 25th July 1902 the appellants lodged a minute craving that the weekly payments of the foresaid compensation should be reviewed and, in respect that the respondent was no longer, and since 28th March 1902 had not been, incapacitated for work, that the said weekly payments should, from and after such date as the Court should appoint, either be ended or at all events reduced to such sum per week as to the Court should seem right.

The respondent's total incapacity ceased on 2nd April 1902, and from 8th May following to the date of the proof after mentioned he has been working, and during that period has been earning 23s. a-week as a pit-head labourer.

A proof was led before the Sheriff-Substitute ( Henderson), and parties were heard upon 19th November 1902, and thereupon the following interlocutor was pronounced:— Edinburgh, 26th December 1902.—The Sheriff-Substitute having heard the agents for the parties, and having considered the minute of 25th July 1902, the answers thereto for the claimant Cavaney, with the whole productions and the evidence adduced—Finds (1) that by the memorandum of agreement, dated 6th December 1901, and recorded in the special register kept for that purpose on 21st July 1902, the Pumpherston Oil Company, Limited, undertook to pay Cavaney, in respect of bodily injury caused to him by accident arising out of and in the course of bis employment by them on 31st October 1901, compensation at the rate of 19s. per week, the rate being half of Cavaney's average weekly wages for the twelve months prior to 31st October 1901; (2) that the company continued to make payment of 19s. weekly to Cavaney until 28th March 1902, when they ceased to make any more payments on the ground that Cavaney was from that date fitted to return to work; (3) that Cavaney did endeavour to do some light work from 7th May 1902, and has for some time been, and is now, earning 23s. per week as a pit-head labourer; (4) that Cavaney's earning capacity since he met with the accident has been considerably diminished, and that he is at all events at present unable to follow his former occupation: Therefore finds Cavaney entitled to continued compensation from the Pumpherston Oil Company, Limited: Fixes the same at 8s. per week, and to the extent of 11s. per week diminishes the weekly payments payable under the recorded memorandum, and that from the date of this deliverance.’”

The Pumpherston Oil Company applied to the Sheriff-Substitute to state and sign a case for appeal.

The questions of law proposed were—“(1) Are the appellants, under section 12 of the First Schedule of the Act, entitled to have respondent's rate of compensation reviewed as from 8th May 1902, it having been proved that respondent's total incapacity did not extend beyond that date, and that from and after that date the respondent has earned 23s. a-week, his average weekly earnings before the accident having been 38s. per week? (2) If not, are the appellants entitled to review as from 25th July 1902, the date of their application for review?”

The Sheriff refused to state a case, and granted the following certificate of refusal:—“The Sheriff—Substitute having been moved by the agent for the minuters to settle a stated case for the parties for the opinion of the Court of Session—refuses to state such a case under the provisions of section 9, sub-section (c), of the Act of Sederunt of 3rd June 1898, on the ground that in his opinion the application for a case is frivolous, the questions in law asked to be stated having been definitely settled by the judgment of the Second Division of the Court of Session in the Oakbank Oil Company v. Steel, December 16, 1902, 40 S.L.R. 205.”

In their reasons why a case should be stated the appellants submitted, inter alia—“That assuming the view of the Sheriff to be sound, that the questions of law are covered by the judgment of the majority of the Second Division in the Oakbank Oil Company v. Steel, 40 S.L.R. 205, the appellants are interested in requesting, and entitled to request, the reconsideration of the questions there determined by a Court of Seven Judges.”

Answers were lodged for Cavaney.

At the bar counsel for the appellants admitted that they could not distinguish Oakbank Oil Company v. Steel, December 16, 1902, 40 S.L.R. 205, but stated that the point involved had been decided in their favour in England in Morton & Company v. Woodward (1902), 2 K.B. 276.

The Court pronounced this interlocutor—

“The Lords having considered the note for the Pumpherston Oil Company, Limited, with the answers for therespondent John Cavaney, and heard counsel for the parties, Remit to the Sheriff-Substitute to settle a case under the Workmen's Compensation Act 1897

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for the opinion of this Court, and decern.”