Scottish Court of Session Decisions

This was an appeal in an arbitration under the Workmen's Compensation Act 1897 between Charles Gaffney, miner, Hamilton, claimant and respondent, and the Cadzow Coal Company, Limited, appellants. The claimant claimed compensation on account of injuries received by him on 29th March 1900, while working in the employment of the appellants as a miner.

The facts of the case as set forth by the Sheriff-Substitute ( Davidson) as arbitrator were as follows—“That the respondent entered the defenders' employment on Friday 23rd March last, on which day he

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earned 7s. 7d. That on the 24th he did no work; that he worked on Monday the 26th March, and every day thereafter till the 29th, on which day he was knocked down by a hutch and so severely injured that he was unable to work till 14th May. That during the four days from 26th to 29th March inclusive he earned the sum of £1, 12s. That since he resumed work on 14th May he has earned 5s. 6d. per day. That he was not paid any wages by the defenders before the accident. That he and other miners in appellants' employment are engaged from day to day. That wages are paid fortnightly on Saturday, but if the miners desire they can usually get their wages on the intermediate Saturdays. That the 24th day of March was an intermediate Saturday.”

The Sheriff-Substitute decided that the amount the respondent earned on Friday the 23rd March was his wages for the week on which that Friday occurred; that the amount he earned on the following week, viz., the 26th, 27th, 28th, and 29th March, was his wages for that week, and that the Court was entitled to strike an average between them, which the Sheriff-Substitute did. He awarded the respondent at the rate of 9s. 10d. a week for four weeks and one day, and the expenses of the action.

The question of law for the opinion of the Court was—“Whether the respondent, having entered the employment of the appellants on 23rd March 1900, and worked on that day, and having also worked on the 26th, 27th, 28th, and 29th March 1900, on which last day he was injured, is entitled in law to compensation under the First Schedule (1) ( b) of the said Act?”

By the Workmen's Compensation Act 1897, First Schedule (1) “The amount of compensation under this Act shall be … ( b) Where total or partial incapacity for work results from the injury, a weekly payment during the incapacity after the second week not exceeding fifty per cent. of his average weekly earnings during the previous twelve months, if he has been so long employed, but if not, then for any less period during which he has been in the employment of the same employer, such weekly payment not to exceed one pound.” Argued for the appellants—The respondent was not entitled to compensation under the Act. It was settled that a workman had no claim unless he had worked for two weeks— Lysons v. Andrew Knowles & Sons [1900], 1 Q.B. 780; Stuart v. Nixon & Bruce [1900], 2 Q.B. 95. If the calculation was by calendar weeks then the respondent had worked only one day in the first week, which could not be held to be a fair week's work. The case would have been the same if he had worked only an hour. That showed that it was impossible to estimate the average weekly earnings unless the workman had done two fair weeks' work. If the calculation was by the colliery week, the claimant in Lysons' case had worked one day in each colliery week, and he was held not entitled to compensation. In Doyle v. Beattie, July 10, 1900, 37 S.L.R. 915, and Russell v. M'Cluskey, July 20, 1900, 37 S.L.R. 931, the workman had worked a substantial part of two weeks, and thus the Court had material for estimating his average weekly earnings.

Argued for the respondent—The enacting clause of the Act affirmed the workman's right to compensation, and it was not to be readily taken away by inference from the terms of the schedule. The Court was not required to determine whether the workman had worked two weeks, but to estimate his “average weekly earnings,” and it was settled that two full weeks' work was not essential for that calculation— M'Cluskey, supra. The result was quite equitable to the employer, for if the workman had worked only a few days in one week, his average earnings would be thereby reduced.