Scottish Court of Session Decisions

The First Schedule appended to the Workmen's Compensation Act 1897 provides—(1) The amount of compensation under this Act shall be ( a) where death results from the injury (1) if the workman leaves any dependants wholly dependent upon his earnings at the time of his death, a sum equal to his earnings in the employment of the same employer during the three years next preceding the injury, or the sum of £150, whichever of those sums is the larger, but not exceeding in any case £300, provided that the amount of any weekly payments made under this Act shall be deducted from such sum, and if the period of the workman's employment by the said employer has been less than the said three years, then the amount of his earnings during the said three years shall be deemed to be 156 times his average weekly earnings during the period of his actual employment under the said employer.”

Mrs Mary Sullivan or Doyle, widow of the deceased Thomas Doyle, labourer, Leith, appealed from the decision of the Sheriff-Substitute at Edinburgh ( Hamilton) in an arbitration under the Workmen's Compensation Act 1897 between her and William Beattie & Sons, contractors, Edinburgh, in which she claimed £219, 14s. as compensation for the death of her husband.

In the case stated for appeal the Sheriff-Substitute stated that the parties concurred in admitting the following facts:—The work was an engineering work, and the defenders were the undertakers thereof, both in the sense of the statute founded on. The deceased Thomas Doyle was a labourer employed by the defenders by the hour, and paid at so much an hour. His services began about one o'clock on Monday, 18th December 1899, on which day he worked 3 1 2 hours, and continued during Tuesday, Wednesday, and Thursday, on each of which days he worked 9 1 2 hours. On Friday he worked from the usual starting hour until about three o'clock on the afternoon, when he was injured. He worked on that day 7 1 2

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hours in all. During the whole period above mentioned the rate at which he was employed was 6 1 2d. per hour, and he received in all £1, 1s. 5d. On Monday, 25th December 1899, he was re-engaged by the defenders at a wage of 5 1 2d. per hour. On each of Monday, Tuesday, Wednesday, Thursday, and Friday he worked 9 hours, and also an extra night-shift. During the whole period the rate at which he was employed (excluding the night) was 5 1 2d. an hour, and he received in all £1, 5s. 2d., including 4s. 6d. for the night-shift. On 22nd December 1899 he was injured by an accident arising out of and in the course of his employment, and he died from the effects thereof on 10th January 1900. The pursuer was wholly dependent on her husband and was with child to him.

On 2nd June 1900 the Sheriff-Substitute ( Hamilton) pronounced the following interlocutor:—“In respect of two decisions by the Lords Justices of Appeal in the cases of Lysons v. Andrew Knowles & Sons, Limited, March 3, 1900, 1 Q.B. 780, and Stuart v. Nixon and Bruce, L. T. Rep., April 6, 1900, dismisses the petition, and decerns.”

The question of law for the opinion of the Court was—“Whether on the facts above stated the appellant is in law entitled to compensation under the First Schedule (1) ( a) (i) of the said Act?”

The Court took exception to the form of the Sheriff-Substitute's decision, inasmuch as it contained no definite finding in law, and so were of opinion that it ought to be sent back to be amended. But in order to save expense to the parties they allowed the case to proceed on the parties inserting a statement that they agreed that the Sheriff-Substitute in point of law held that the pursuer was not entitled to compensation under the Act in respect that her deceased husband had not been in the employment of the respondents for a period of two weeks previous to the accident.

Argued for the appellant—Whether or not her husband had worked so that his average weekly wage could be ascertained, she was entitled in terms of section 1 ( a) (i) of the First Schedule to £150. But in the present case the deceased had worked long enough to enable his average weekly wage to be ascertained. It was not necessary to have work during two weeks in order to ascertain the “average weekly earnings.” At any rate, work during the whole of two weeks was not necessary. In Smith v. M'Cormick, June 6, 1899, 1 F. 883, the work had been done at irregular intervals extending over a number of weeks. If the English decisions quoted by the Sheriff-Substitute were against this view they were wrong. But they were not. In the case of Stuart v. Nixon and Bruce [1900], 2 Q.B. 95, Lord Justice Collins, who gave judgment in the case of Lysons v. Andrew Knowles & Sons, Limited [1900], 1 Q.B. 780, laid it down that in order to get an average of the earnings there required to be employment during two weeks, but that it was not necessary that the workman should have been in that employment for every day of the two weeks.—See [1900], 2 Q.B. 99. Here one of the two weeks taken into account was subsequent to the date of the injury. But that did not matter. The period to be taken into account was not restricted to the time prior to the date of the injury.

Argued for the respondent—The minimum of £150 was only due where there had been three years' employment “preceding the injury.” It was not allowable to reckon the time after the accident. The language of the schedule showed that the employment must precede the injury. All through the clause the word “earnings” must be taken as qualified by the words “preceding the injury.” For the sake of the workman himself it was desirable that the clause should be so interpreted, because otherwise if he was engaged after the accident at a smaller wage, that would reduce his average. In the present case the old employment stopped at the time of the accident, and when the deceased was reengaged at the beginning of the next week he was under a different contract of service. The deceased not having been for two weeks in the actual employment of the defenders, the pursuer, on the authority of the English cases cited by the Sheriff-Substitute, was not entitled to compensation.