Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), First Schedule, sec. 3, enacts—“… In the case of partial incapacity the weekly payment shall in no case exceed the difference between the amount of the average weekly earnings of the workman before the accident and the average weekly amount which he is earning or is able to earn in some suitable employment or business after the accident, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper.”

An arbitration was held in the Sheriff Court at Dumbarton, under the Workmen's Compensation Act 1906, between the Woodilee Coal and Coke Company, Limited, Lenzie, appellants, and John M'Neill, miner, 50 Queen Street, Kirkintilloch, respondent, to fix the amount of compensation payable by the appellants to the respondent in respect of partial incapacity for work incurred by the latter, who contracted the industrial disease known as miners' nystagmus whilst in the employment of the former. The appellants being dissatisfied with the decision the Sheriff-Substitute ( Macdiarmid) brought a Case for the opinion of the Second Division of the Court of Session.

The Case stated—“This is an arbitration under the Workmen's Compensation Act 1906, in which the appellants, by minute of review lodged on 14th August 1916, craved the Court to review the weekly payment of 20s. (reduced by unrecorded agreement between the parties to 15s. at 18th May 1915), which under an award of this Court dated 10th July 1914 was payable by them to the respondent, and to diminish as at 7th June 1916 the said weekly payment by such amount as to the Court might seem proper in respect that the incapacity for work of the respondent had become greatly lessened.

On 2nd October 1916 proof was led before me. A joint-minute of admissions in the following terms was lodged on 28th September 1916:—‘With a view to shortening the evidence to be led at the proof the parties admit that the pursuer (respondent) is recovering from the disease of miners’ nystagmus, for which he has been paid compensation by the defenders (appellants), and that at and from 7th June 1916 his condition was improved and he has been fit for labouring work on the surface.’

At the proof the following additional facts were either admitted or proved:—1. That the respondent, who was a miner to trade, contracted nystagmus, the date of disablement being 25th March 1914. 2. That at said date his average weekly earnings were 40s. 3. That at labouring work on the surface the respondent was as at said 7th June 1916 able to earn 27s. 6d. per week. 4. That had it not been for his disablement the respondent would in all probability have continued to work as a miner at the face. 5. That since the said date of disablement there had been a general rise in the rate of miners' wages, and that the minimum wage of a miner at the face to-day was 10s. per shift. 6. That had the respondent continued to work as a miner at the face he would now have been earning a weekly wage of considerably more than 55s. per week.

In these circumstances the appellants contended that the compensation payable should be reduced to 6s. 3d., being 50 per cent. of the difference between 40s. and 27s. 6d., the amounts earned before and after the accident respectively. On the other hand, the respondent contended that in fixing the amount of compensation for partial incapacity the amount he would in all probability have been earning had he not contracted nystagmus should be taken into account, and that the rate of 15s. per week should be continued.

After hearing proof and the arguments of parties I was of opinion, for the reasons set forth in the note appended hereto, that I ought to follow the case of Bevan v. Ener-glyn Colliery Company, [1912] 1 K B 63, and accordingly I diminished the agreed-on sum of 15s. by the sum of 2s. 6d., and found appellants liable to respondent in compensation at the rate of 12s. 6d. from said 7th June 1916 until further order of Court. I awarded expenses to the respondent, as in my judgment he had been successful in the only material point which was the subject of dispute between the parties at the aforesaid proof.”

The question of law for the opinion of the Court, inter alia, was—“1. Is the general rise in miners' wages a factor which I was entitled to consider in assessing the compensation payable to respondent in respect of partial incapacity?

Page: 209↓

The arbitrator appended the following note to his judgment:—“The workman in this case, who is a miner, contracted in 1914 the industrial disease known as miners' nystagmus. The date of disablement was 25th March 1914, and from that date till 18th May 1915 the defenders paid him compensation at the rate of 20s. per week conform to an award issued by me on 10th July 1914. At 18th May 1915 it was agreed between parties that the compensation should be reduced to 15s. A minute of admissions has been lodged in the present process, from which it appears that parties are agreed that as from 7th June 1916 the workman's condition has been and is such that he is able to undertake labouring work on the surface. The employers accordingly ask that the compensation which they have been paying him since 18th May 1915 should, as at 7th June 1916, be further reduced. It is proved that at labouring work on the surface the workman can earn a wage of 27s. 6d. per week. The employers contend that the compensation should be reduced to 6s. 3d., that is, 50 per cent. of the difference between 40s. and 27s. 6d. The workman on the other hand maintains that when the undisputed fact of the advance in the rate of miners' wages is taken into account no reduction should be made in the sum of 15s. The proof discloses that the minimnm wage earned by miners at present is 10s. per shift—that is to say, that by a week's work a miner can earn at least 55s. It is not disputed that had the workman here not contracted miners' nystagmus he would in all probability have to-day been working as a miner at the face, and would have been earning a considerably greater sum than 55s. per week.

The question therefore is whether or not this undisputed rise in the rate of miners' wages since the date of disablement is one of ‘the circumstances of the case’ to be taken into account in estimating the amount of the weekly payment to be awarded in respect of the partial incapacity of the workman. There is, so far as I know, no decision on this point by the Court of Session. At any rate no case in point was cited. Malcolm v. Spowart & Company, Limited, 1913 S. C. 1024, was the case of a minor under Schedule I (16), and does not appear to me to be an authority relative to a case under Schedule I (3). The phraseology of the sections is quite different.

The workman of course relies on the decision in Bevan v. Energlyn Colliery Company, [1912] 1 KB 63, which, although no doubt not actually binding on me, is a decision of high authority and one therefore which I should be inclined to follow unless strong reason were shown to the contrary. I do not think that has been done in this case. At the same time, without the help of Bevan I should have had considerable doubt as to the relevance of a change in the general rate of wages to the consideration of the amount to be awarded as partial compensation under Schedule I (3). There can, as it seems to me, looking to the words of that section and to the decision in Bevan's case, be no doubt that an arbiter may not, in awarding partial compensation, go beyond the sum which is the difference between the wage earned before and after the accident. It would also appear that the wage earned before the accident is a fixed and definite sum not subject to variation (what the Master of the Rolls in Bevan's case called ‘a constant and ascertained fact’); and yet after reading the judgments of the learned judges in Bevan's case it does humbly appear to me that that decision came perilously near to substituting for ‘the amount of the average weekly earnings of the workman before the accident’ of section 3 of the schedule, something else, viz., the amount of the average weekly earnings which the workman would probably have been earning had he not met with an accident. Obviously, however, it is possible to give some effect to the consideration of a rise or fall of wages within the limits of section 3 of the schedule—in other words, without exceeding the difference between the earnings before and after the accident—however disproportionate the sum awarded may be to the difference between the amount the workman is able to earn after the accident and the amount he would have been earning had the accident not occurred.

It seems clear, indeed is not contradicted, that had the workman here been working as a miner to-day he would, as I have said, have been earning considerably more than 55s. per week, and had it been possible I should, following the decision in Bevan's case, have allowed the 15s. at present being paid him to stand. But that may not be, for 12s. 6d., the difference between the wage at the date of accident and the wage he can earn now, is the utmost, as I understand the matter, that he may have. In my opinion he is entitled to that.

It may be well to add that there was a point raised concerning the amount being made by the pursuer as an insurance agent, but the evidence on the matter was not satisfactory and the defenders did not prove that the pursuer is able to work at this or any other work in artificial light, which of course he would have to do when he commences at labouring work on the surface—that is to say, if he proposes to continue as an insurance agent. The matter was further complicated by the fact that he had been working as a part-time insurance agent at the date of the accident, and that this fact had been inadvertently omitted when the original compensation was fixed. On the proof as it at present stands my view is that it is not proved that the pursuer's condition has so far improved as to enable him to work by artificial light, and that consequently he will have to abandon his work as an insurance agent.

I think the pursuer has been substantially successful, and that he should have expenses.”

The appellants argued—“The circumstances” mentioned in section 3 of the First Schedule to the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) were those which existed at the time when the amount of the award was first fixed. If the view was the correct one, the

Page: 210↓

man might receive more than fifty per cent. of his earnings at the time of the accident, and thus a partially incapacitated man might be put in a better position than a totally disabled man, in whose case compensation was fixed at fifty per cent. of his former earnings. It was not permissible for the arbitrator to take into consideration fluctuation of wages in fixing the amount of his award—Under the 1897 Act (60 and 61 Vict. cap. 37)— Jamieson v. The Fife Coal Company, 1903, 5 F. 958, per Lord Adam and Lord M'Laren at p. 962, 40 S.L.R. 704; Merry Cuninghame v. Black, 1909 S.C. 1150, per Lord Low, 46 S.L.R. 812; James v. Ocean Coal Company, [1904] 2 KB 213—Under the 1906 Act ( cit.)— Ball v. Hunt, [1912] AC 496, per Lord Shaw at p. 508; Cardiff Corporation v. Hall, [1911] 1 KB 1009, per Lord Justice Fletcher Moulton at p. 1017 and Lord Justice Buckley at 1026; Radcliffe v. Pacific Steam Navigation Company, [1910] 1 KB 685, per L. J. Buckley, at p. 694. In the case of Bevan ( cit.) supervenient legislation had to be considered: the Act limiting the working day of a miner to eight hours had meanwhile been passed, and that being so eight hours was considered as his normal day's work now, thus reducing his earning powers.

Counsel for the respondent was not called on.