Scottish Court of Session Decisions

In an arbitration in the Sheriff Court at Ayr under the Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37) between Alexander Dempster, who had sustained injury on 31st March 1899 by an accident arising out of and in course of his employment in a mine, and William Baird & Company, Limited, his employers, the following facts were admitted or proved—“(1) That, as the result of the said injuries received by him, the said Alexander Dempster was totally incapacitated from his work as a miner from the said 1st day of March 1899 till 21st day of May 1900; (2) that his average weekly earnings in the employment of the said William Baird & Company, Limited, during the twelve months previous to the date of said accident, were twenty-eight shillings and eightpence; (3) that it is averred on record by the said Alexander Dempster, and admitted by the said William Baird & Company, Limited, that an agreement was entered into between them, by which the said William Baird & Company, Limited, agreed to pay the said Alexander Dempster compensation under the Workmen's Compensation Act 1897, at the rate of fourteen shillings and fourpence per week from the 15th day of March 1899; (4) that no memorandum of said agreement was sent to the Sheriff-Clerk of Ayrshire, or recorded by him in the special register, but that under said agreement compensation at said rate of fourteen shillings and fourpence per week was paid to the said Alexander Dempster from the said 15th day of March 1899 till the 21st day of May 1900; (5) that on said last-mentioned date the said agreement was terminated, and on or about that date a new and second agreement was entered into between the said Alexander Dempster and the said William Baird & Company, Limited, by which they agreed to give him, and he agreed to accept from them, work as a ‘pit bottomer,’ which is lighter work than that of a ‘miner,’ but that it was not, by said new agreement, agreed that the said Alexander Dempster, in respect of his employment by the said William Baird & Company, Limited, as a ‘pit bottomer,’ departed from any claim for compensation in respect of his said injury, which he might have against the said William Baird & Company, Limited; (6) that the said Alexander Dempster worked for the said William Baird & Company, Limited, as a ‘pit bottomer,’ from the said 21st day of May 1900 till the 1st day of April 1907, and during that period earned an average weekly wage of one pound, two shillings and ninepence, being five shillings and elevenpence per week less than he earned prior to his said injury; (7) that during the said period when he was working as a ‘pit bottomer,’ he on various occasions requested the now deceased William M'Culloch, the said William Baird & Company's manager, to make up to him the deficiency in his weekly earnings, but that his requests were not complied with; and (8) that on the said 1st day of April 1907 the said Alexander Dempster, in consequence of his said injury, became totally incapacitated for any work, and that a new and third agreement was entered into between him and the said William Baird & Company, Limited, by which they again agreed to pay him his full compensation of fourteen shillings and fourpence per week, and that they have paid him said sum from the said 1st day of April 1907 till the present date.”

On these facts the Sheriff-Substitute ( Shairp) found William Baird & Company liable to Alexander Dempster for the loss of earnings sustained by him during the period between 21st May 1900 and 1st April 1907, in consequence of his injury; which loss the Sheriff-Substitute assessed at the sum of £100, and decerned against the said William Baird & Company for payment of the same.

At the request of William Baird & Company, the Sheriff-Substitute stated a case for appeal, in which the foregoing facts were set forth.

The questions of law for the opinion of the Court were—“(1) Was the said Alexander Dempster, in the circumstances before narrated, and in view of the fact that he had not earlier taken legal proceedings to recover compensation, barred personali exceptione from claiming compensation, under the Workmen's Compensation Act 1897, from the said William Baird & Company, Limited, for the period between the 21st day of May 1900 and the 1st day of April 1907? and (2) Could the arbitrator, in awarding compensation in a lump sum of one hundred pounds to the said Alexander Dempster, rightly have regard to his diminished weekly earnings

Page: 121↓

during the period between 21st May 1900 and 1st April 1907?”

The appellants (William Baird & Company) argued—(1) The respondent was barred personali exceptione from making the present claim. The appellants had suffered prejudice by the delay of the respondent in making the claim. They had lost the opportunities provided by the statute for medical examination or for review. In any event, the acceptance by the respondent of employment from the appellants completely barred his claim for compensation— Beath & Keay v. Ness, November 28, 1903, 6 F. 168, 41 S.L.R. 113; Nimmo & Co., Ltd. v. Fisher, 1907 S.C. 890, 44 S.L.R. 641; William Baird & Co., Ltd. v. M'Whinnie, 1908 S.C. 440, 45 S.L.R. 338. (2) The award of a lump sum was incompetent. The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37) provided for such an award in only two cases, where death resulted—Schedule I. (1) (a), and where weekly payments were, after six months, commuted—Schedule I (13). The scheme of the Act negatived the view that an award of a lump sum was competent in any other case. The payments under the Act were in the nature of alimentary provisions—they were not attachable for debt—Schedule I (14). It was again incompetent for the Sheriff to decern for payment. He was authorised to settle the amount—section I (3)—and special means were provided for recovery—Schedule II (8). In any event it was not competent to decern for arrears — Colville & Sons, Ltd. v. Tigue, December 6, 1905, 8 F. 179, 43 S.L.R. 129, per Lord Kyllachy. The Sheriff was not entitled to find an average weekly sum due in respect of the partial incapacity. He must find in regard to the actual circumstances of each week, the actual sum due for that week. Regard must be had to the average amount the workman was able to earn after the accident—Schedule I (2). The Sheriff here, in arriving at the sum due, had not applied the methods contemplated by the Act. If these methods were, in the circumstances, not possible, that demonstrated the incompetency of entertaining the present claim and considering liability for arrears.

Argued for the respondent—The question whether the present claim was barred was a question of fact which had been decided by the Sheriff in the respondent's favour. Assuming that the question was one of law, the respondent was not barred. Mere delay was insufficient unless it caused the appellants to alter their position to their prejudice. No prejudice had resulted here. The respondent was in the employment of the appellants during the whole period in question, and the whole circumstances surrounding his present claim were thus within their knowledge. (2) There was nothing incompetent in the award of a lump sum. It would have been perfectly competent for the Sheriff to award a certain sum for work for the whole period of incapacity—Schedule I (2). It could not make the award incompetent that the Sheriff had added up the weekly sums and given decree for the total, subject to modification. It was equally competent for the Sheriff to find a sum due in respect of arrears— Dempster v. William Baird & Company, Limited, 1908 S.C. 722, 45 S.L.R. 432. If the claim was not barred by the delay, and could competently be made now as the Act contemplated where no prejudice had arisen—section 2—it necessarily followed that arrears could be awarded.