Scottish Court of Session Decisions

The Workmen's Compensation Act 1897 (00 and 61 Vict. cap. 37), Schedule 1, section 12, enacts—“Any weekly payment may be reviewed at the request either of the employer or of the workman, and on such review may be ended, diminished, or increased.…”

In an arbitration under the Workmen's Compensation Act 1897, raised in the Sheriff Court at Dunfermline by John Allan, miner, Wellwood, who had received injuries to his back, against Thomas Spowart & Company, Limited, Lassodie Colliery, Dunfermline, in which the claimant had obtained compensation at the rate of 18s. 6d., subsequently reduced to 15s. 6d. per week, the respondents on 15th November 1905 lodged a minute in process craving the Court to end or diminish the compensation “in respect that the circumstances of defender are now changed, and that he is fit for work.”

Answers were lodged in which continuing partial incapacity was pleaded. On 8th December 1905, of consent, the Sheriff-Substitute ( Hay Shennan) remitted to the medical referee, Dr Sturrock, who on 12th December reported—“That John Allan has sufficiently recovered from the effects of the accident and is fit for work, there being no ankylosis of (fixed union between) the vertebrae, no symptoms of any injury of the spinal cord, nor any wasting of the muscles of the back, nor any degeneration in them. As John Allan has not worked since July 1901, in my opinion he should have work above ground for the first three months.” On a further remit by the Sheriff-Substitute, who was in doubt whether the medical referee meant that after three months' work on the surface Allan's wage-earning capacity would be completely restored, or merely that he would then be able to work underground without his recovery being complete, the medical referee stated his meaning was “that three months on the surface was all that was needed to restore completely Allan's wage-earning capacity.”

Thereafter on 27th February 1906 the Sheriff-Substitute pronounced an interlocutor in which he directed “that the weekly compensation to the respondent be reduced as from 31st December 1905 to the sum of nine shillings and eightpence, and that the said compensation be ended from and after 31st March ensuing.”

Allan appealed.

The stated case, inter alia, set forth the above-mentioned facts and submitted the following question of law for the opinion of the Court—“(2) Whether the Sheriff-Substitute had power, under the Workmen's Compensation Act 1897, to direct that the compensation payable to the appellant should be ended as at 31st March 1906, the date of the Sheriff-Substitute's judgment being 27th February 1906?”

Argued for appellant—The arbiter had no power to declare that the compensation should end at some future time. His only ground for doing so was a medical forecast that by that time the appellant would have completely recovered. A medical certificate to that effect was no evidence as to the state of his earning capacity at that date. There must be as at that date either a proof or, at all events, a remit as to his then earning capacity— Dowds v. Bennie & Son, December 19, 1902, 5 F. 268, 40 S.L.R. 239; Johnstone v. Cochran & Company, Annan, Limited, June 30, 1904, 6 F. 854, 41 S.L.R. 644.

Argued for respondents—The medical referee had reported that the appellant had completely recovered. The fact that his muscles were stiff and needed to be relaxed was not inconsistent with his having completely recovered. That being so the arbiter had power to declare the compensation ended as from 31st March 1906.