Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 Schedule I (16), provides—“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, subject to the maximum above provided, and the amount of payment shall in default of agreement be settled by arbitration under this Act: Provided that where the workman was at the date of the accident under twenty-one years of age and the review takes place more than twelve months after the accident the amount of the weekly payment may be increased to any amount not exceeding 50 per cent. of the weekly sum which the workman would probably have been earning at the date of the review if he had remained uninjured, but not in any case exceeding £1.”

In an arbitration under the Workmen's Compensation Act 1906 in the Sheriff Court at Ayr, in which Charles Wilson, respondent, applied for review of a weekly payment formerly made to him by William Baird & Company, Limited, appellants, the Sheriff-Substitute ( Broun) reviewed the weekly payment and at the request of the company stated a Case for appeal.

The Case stated—“The following facts were admitted or proved—1. On 29th November 1911 the respondent, who was born on 23rd April 1896, received personal injury by accident arising out of and in the course of his employment as a coal picker by the appellants in their No. 12 Common Pit. While working at the picking tables the respondent's left hand was caught in the moving plates and was badly crushed and bruised. The middle and ring finger had to be amputated at the knuckle joint, and one of the knuckle joints had also to be taken away. 2. At the date of the said accident the respondent's average weekly earnings were 9s. 3d. 3. The respondent claimed compensation under the Workmen's Compensation Act 1906, and although no memorandum of agreement was recorded the appellants admitted liability and paid to the respondent compensation at the rate of 9s. 3d. a-week from 29th November 1911 to 24th April 1912, when they stopped all payment of compensation without any consent on the part of the respondent. 4. On 22nd April 1912, although the respondent was still partially incapacitated as the result of the said injury, he obtained employment from the appellants and continued to work with them at various jobs at their pits in the district down to 20th January 1922, with the exception of the period from 1st April till the beginning of July 1921, when the pits were closed on account of the national coal stoppage. These various jobs were—hutch runner on pithead at Barglachan Pit from 22nd April 1912 to 9th January 1913; pony driver on surface at No. 15 Common Pit from 10th January to 25th March 1913; hutch runner at No. 16 Common Pit from 1st April 1913 to 14th July 1914; screeman at pithead at same pit from 15th July 1914 to 15th January 1916; boiler fireman at pithead at number 15 Common Pit from 2nd February to 23rd December 1916; screeman at No. 16 Common Pit from 13th December 1916 to 16th August 1917; boiler fireman on pithead at No. 15 Common Pit from 17th August 1917 to 10th December 1918; labourer stacking pit props on surface at Barglachan Pit from 11th December 1918 to 12th December 1919; bottomer underground at No. 16 Common Pit from 19th December 1919 to 7th February 1920; boiler fireman at pithead at No. 15 Common Pit from 9th February to 1st August 1920; and haulage engineman on surface at Highhouse Pit from 5th August 1920 to 20th January 1922. 5. On 20th January 1922 the respondent was dismissed by the appellants for alleged carelessness. At the date of his dismissal he was earning about 6s. per shift or £1, 13s. per week. At the same date the earnings of a worker at the most highly paid job which the respondent had undertaken while in the appellants' service, viz., that of boiler fireman, were about £2, 4s. per week. 6. On 7th June 1922 the respondent obtained work at No. 1 and 2 Bothwell Castle Colliery from the Lanarkshire branch of the appellants' firm without the knowledge of the Ayrshire officials by whom he had been dismissed. This work consisted of braking railway waggons which were loaded at the screes and run into the lyes. At this work the respondent is still employed, and earns 5s. 11d. per shift or about £1, 12s. per week. 7. As the result of the said injury the respondent's left hand is permanently damaged. Not only has he lost his middle and ring finger, but there is a tender spot on the palmar aspect of the hand below the ring finger. The gripping power of his hand is consequently weak, and this will prevent him performing efficiently the work of a miner at the face for which he intended to qualify himself when he entered the employment of the appellants prior to the said accident. 8. On 8th February 1922 the respondent through his agents intimated a claim for compensation, but the appellants refuse to pay any compensation to the respondent. 9. On 8th February 1922 the respondent was, and still is, partially incapacitated for work as the result of the said injury. 10. On 8th February 1922 and down to the present date the respondent if he had remained uninjured would probably have been earning as a miner a weekly wage of £2, 9s.

On these facts I found in law that the Court was entitled, in terms of section 16 of Schedule I of the said Act, to review the weekly payment formerly made by the appellants to the respondent as compensation for the said injury. I therefore reviewed as from 8th February 1922 the weekly payment of 9s. 3d. formerly made by the appellants to the respondent as compensation for the said injury, and assessed the compensation payable by the appellants to the respondent from the said date till the further orders of the Court at five shillings per week as compensation for partial incapacity resulting from the said injury, and found no expenses due to or by either party.”

Page: 143↓

The question of law for the opinion of the Court was:—“On the facts above set forth was I entitled, in terms of section 16 of Schedule I of the Workmen's Compensation Act 1906, to review the weekly payments formerly made by the appellants to the respondent as compensation for the personal injury received by him in the accident on 29th November 1911?”

Argued for the appellants—The application for review was incompetent. The First Schedule (16) only applied to an existing weekly payment— Nicholson v. Piper, [1907] AC 215, per Lord Robertson, and in the Court of Appeal, 96 L.T. 75, per Cozens-Hardy, L.J. Here there was no existing payment. All that was known of it was that it had been made and had ceased ten years ago, without any agreement being recorded or anything done to keep the question open. There was nothing therefore to review. Further, the workman could have raised proceedings for review after twelve months, and by his delay must be taken to have acquiesced in the termination, by his employment, of the agreement— Dempster v. Baird & Company, Limited, 1908 S.C. 722, 45 S.L.R. 432, per Lords Low and Ardwall.

Argued for the respondent—The agreement to pay was admitted, and it had not been brought to an end in any competent manner. It was still, therefore, an existing agreement, and review of the payment was competent— Southhook Fire-Clay Company, Limited v. Laughland, 1908 S.C. 831, 45 S.L.R. 664; Lochgelly Iron and Coal Company, Limited v. Sinclair, 1909 S.C. 922, 46 S.L.R. 665; Nelson v. Summerlee Iron Company, Limited, 1910 S.C. 360, 47 S.L.R. 344. The fact that the payments had ceased while wages were paid was no bar to review— Dempster v. Baird & Company, Limited ( cit). The decision in Nicholson v. Piper ( cit.) depended on the fact that the payments had been ended by the arbitrator, and was really in the respondent's favour.