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Cite as: [1901] SLR 38_448, [1901] ScotLR 38_448

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SCOTTISH_SLR_Court_of_Session

Page: 448↓

Court of Session Inner House Second Division.

[Sheriff-Substitute at Glasgow.

Tuesday, March 12. 1901.

38 SLR 448

Robert Forrester & Company

v.

M'Callum.

Subject_1Reparation
Subject_2Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37), First Schedule (1) (a) (1)
Subject_3Amount of Compensation
Subject_4Minimum of £150 — Workman in Employment Less than Three Years.
Facts:

Held that the minimum sum of £150 fixed by section (1) ( a) (1) of the First Schedule to the Workmen's Compensation Act 1897, with reference to injuries resulting in death, was applicable to the case of a workman who had been less than three years in the employment, and that the amount of compensation which could be awarded to his dependants was not limited to 156 times his average weekly earnings where that sum was less than £150.

Opinions contra in Doyle v. Beattie & Sons, July 10, 1900, 2 F. 1166, reconsidered and disapproved.

Headnote:

This was an appeal in an arbitration under the Workmen's Compensation Act 1897 before the Sheriff-Substitute ( Strachan) at Glasgow between Robert Forrester & Company, coalmasters, Glasgow, appellants, and Mrs Catherine M'Callum, widow of George Mitchell M'Callum, miner, Fauld-house, for herself and as tutrix and guardian of her pupil children, claimant and respondent.

The admitted facts were as follows—“(1) That George Mitchell M'Callum, husband of the respondent, was on 2nd July 1900 killed while in the employment of the appellants. (2) That the said George Mitchell M'Callum had been in the employment of the appellants for a part only of two weeks prior to his death, and it was not disputed that the respondent was entitled to compensation under the Act. (3) That the average weekly wage of the said George Mitchell M'Callum was 12s., and this wage multiplied by 156 amounts to £93, 12. (4) That the respondent was wholly dependent on the said George Mitchell M'Callum at the date of his death.”

The Sheriff-Substitute held in these circumstances that the minimum sum fixed by section (1) ( a) (i) of the First Schedule to the Workmen's Compensation Act 1897 was
Page: 449↓
applicable to the case of a workman who had been less than three years in the employment, and he accordingly awarded the respondent the sum of £150, and found her entitled to £3, 3s. of expenses.

The questions of law for the opinion of the Court were—“(1) Is the minimum of £150 fixed by section 1 ( a) (i) of the said Schedule applicable to the case of a workman who has been less than three years in the employment? or (2), Is the average wage, amounting in this case to £93, 12s., the limit of the compensation which can be awarded in such a case?”

The Workmen's Compensation Act 1897, by the First Schedule (under the head “Scale of Compensation”) provides as follows—“(1) The amount of compensation under this Act shall be ( a) where death results from the injury—(i) 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 one hundred and fifty pounds, whichever of those sums is the larger, but not exceeding in any case three hundred pounds, 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.”

Argued for the appellants—The Sheriff-Substitute was wrong in holding that the minimum award of £150 was applicable to the case of a workman who had been in the employment less than three years. Clause 1 ( a) (i) of the Schedule was divided into two parts, which were quite distinct, and the provision regarding the maximum and minimum awards applied only to the case of a workman who had been three years in the same employment. The point was directly decided in Doyle v. Beattie & Sons, July 10, 1900, 2 F. 1166, which was supported by Small v. M'Cormick and Ewing, June 6, 1899, 1 F. 883. The point was not expressly raised in Lysons v. Andrew Knowles & Sons and Stuart v. Nixon & Bruce, [1901], A.C. 79, and the opinions expressed in the House of Lords adverse to the appellants’ contention were merely obiter. The same observation applied to the opinion of the Lord President in Russell v. M'Cluskey, July 20, 1900, 2 F. 1312. It was conceded that the maximum of £300 was in the same position as the minimum of £150, so that if in one case the workman might get less than £150 in another case he might get more than £300.

Argued for the respondent—The two parts of the clause fell naturally to be read together, and no reason could be suggested why the maximum and minimum should apply to one case and not to the other. No doubt opinions were expressed in Doyle, supra, to an opposite effect, but they were not essential to the judgment, which merely decided that on the facts stated it was possible to ascertain the workman's average weekly earnings. On the other hand, the House of Lords had expressed clear opinions that the maximum and minimum applied to the case of a workman who had been less than three years in the employment— Stuart, supra, per Lord Chancellor Halsbury and Lord Lindley, at page 101, and Lord Macnaghten, at page 93. See also Russell, supra, per Lord President, at page 1315.

At advising—

Judgment:

Lord Justice-Clerk—The decision of this case depends upon the interpretation to be put upon head (1) of sub-section (a) of the First Schedule of the Workmen's Compensation Act, which settles the limits of compensation which may be awarded to the dependents of a workman who has died in consequence of an injury. That head provides, in the case of a workman who has been three years in the employment, that the dependants shall receive a sum equal to his earnings if they exceed £150, and a minimum of £150 if they do not, but not exceeding a maximum in the first case of £300. It then goes on to deal with the case of a workman who has not been three years in the employment, enacting that “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.”

In this case the period was less, but the Sheriff-Substitute has held that his duty was to multiply the weekly average wages by 156 to ascertain the actual amount, and finding that that amount was less than the minimum of £150 set forth in the earlier part of the schedule, to award £150.

I am of opinion that the decision of the Sheriff-Substitute is right. In the case of Doyle v. Beattie & Sons, which was quoted to us as being contrary to the Sheriff-Substitute's judgment, the question which arose was, whether the words in the first part of the schedule, by which the time of the running of the three years must be all before the accident, prevented a claim made under the latter part of the schedule being ascertained on average where the employment was only for one week before the accident, but the workman continued in the employment and worked during another week before his injuries took such effect as to cause him to cease working. We held that the two parts of the clause were quite separate, and that the second part gave in that case sufficient means for calculating the average and ascertaining the total, the calculation not being limited to work done before the accident as it was in the first half. I feel bound to confess that in so far as what I said in that case may be construed to mean that the two parts of head (1) of sub-section ( a) of the Schedule

Page: 450↓

were absolutely separable, so that no part was to be read into the second, it cannot be justified upon a closer reading of the schedule. That schedule, I hold, provides that in the case of a death, the claim of dependants, both in the case of a complete three years service and in the case of a service more limited in time, extends to £150 in any case where either the total wages of the three years service in the one category, or the multiplication of the average wages by 156 in the other category, bring out a sum of less than £150. That is the case here, and I am of opinion that the Sheriff-Substitute has rightly decided that £150 is the sum to which the respondent is entitled.

Lord Trayner—The question raised by this appeal was incidentally argued and considered in the case of Doyle. In my opinion in that case I adopted a view of the meaning and effect of the first part of the First Schedule appended to the Workmen's Compensation Act different from that taken and given effect to by the Sheriff in the present case. I think the part of the schedule to which I have referred admits reasonably of two readings, and in Doyle's case I adopted the one which I thought the sounder reading of the two. After hearing the argument in this case, and considering what was said in the House of Lords in the case of Stuart, I have come to the conclusion (contrary to the opinion I formerly expressed) that the judgment now under appeal is well founded and ought to be affirmed.

Lord Moncreiff—I think the Sheriff's judgment is right. The province of the latter part of section 1 ( a) (i) of the First Schedule appended to the Workmen's Compensation Act is merely to provide a means of fixing the amount of the deceased workman's earnings during the three years next preceding the injury where he was not in the actual employment of the employer during the whole of the said three years. This is to be done by first ascertaining his average weekly earnings during the period of his actual employment, and multiplying that average by 156, being the number of weeks in a period of three years.

This being the sole purpose of the provision, article 1 ( a) (i) amounts to this—Where death results from the injury, and the workman leaves dependants wholly dependent on his earnings, the amount of compensation shall be a sum equal to his earnings in the employment of the same employer during the three years next preceding the injury, or where his employment has been less than the said three years a sum equal to 156 times his average weekly earnings during the period of his actual employment. But in neither case shall the compensation exceed £300 or be less than £150.

If the latter part of article 1 ( a) (i) were to be read as entirely independent of the maximum and minimum fixed in the former part, the result might be that the representatives of a workman who had only been one week in the employment might receive a larger sum than the representatives of a workman who had been in the employment during the whole period of three years. This was clearly not intended.

The Court answered the first question in the affirmative and the second in the negative.

Counsel:

Counsel for the Appellants— W. Campbell, K.C.—Chree. Agents— W. & J. Burness, W.S.

Counsel for the Claimant and Respondent— Salvesen, K.C.— W. Thomson. Agents— Campbell & Smith, S.S.C.
1901