Scottish Court of Session Decisions

This was an appeal in an arbitration under the Workmen's Compensation Act 1897 before the Sheriff-Substitute at Greenock ( Glegg), between Patrick Dunlop, holder-on, appellant, and Rankin & Blackmore, engineers, Greenock, respondents.

The case set forth the following facts:—“This is an arbitration in which the appellant seeks compensation for the loss of an eye, sustained on 4th February 1901, while in the employment of the respondents. It was admitted that the accident occurred in the course of the employment, and that the respondents were liable to pay compensation so long as the appellant was disabled as the result of the accident. The respondents paid the appellant compensation at the rate of 12s. 8d. per week, being his half wages, down to 3rd June, when, after some abortive overtures for a settlement, they stopped the payments. The appellant raised the present application on 29th May,

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and maintained that the present proceedings were rendered necessary by the respondents' letter of 17th May aftermentioned, and that the appellant was still disabled as the result of the accident. The respondents contended that the appellant had recovered, and that the admission contained in their letter of 15th March rendered it unnecessary for the appellant to obtain a declaration of liability against the respondents, since he could record the same as an agreement under the Act. The letter of 15th March from the respondents to the appellant bore—‘We are in receipt of your letter of 11th inst., and have to inform you that we admit liability under the Workmen's Compensation Act 1897, and are prepared to pay compensation at the rate of 12s. 8d. during incapacity in terms thereof. We may state that your client has already received three weekly payments.’ The letter of 17th May from the respondents to the appellant bore—‘Referring to your call upon me on Wednesday last, this case had the further consideration of my directors at a meeting here yesterday, and I have to advise you that they positively decline to make any advance on the offer already made by me to you, viz., £10, and £1, 1s. of expenses. If this is not accepted within three days from date I will be compelled, in accordance with their decision, to stop payments at once, and leave you to take whatever course you think desirable.’ After a proof I pronounced the following interlocutor:— Greenock, 28 th June 1901.—The Sheriff-Substitute having heard parties' procurators and considered the whole cause; Finds it admitted (1) that the pursuer lost his right eye as the result of an accident received while employed as a holder-on by the defenders; (2) that the pursuer suffered no other injury than the loss of his right eye, his left eye having remained until now unaffected by the accident; (3) that the letters of 15th March 1901 and 17th May 1901, passed between the parties therein named on the dates they bear; (4) that defenders made to pursuer, from the fortnight after the accident down to 3rd June last, weekly payments of half his average wages: Further finds it proved (1) that the pursuer had on 3rd June last recovered from the wound caused by the injury to and the removal of his eye, that the pursuer did not seek to return to his employment or to obtain any other employment; (2) that the loss of an eye does not prevent a holder-on from being able to earn as large wages as he did previous to its loss: Finds in law (1) that the letter dated 15th March 1901 was a settlement by agreement upon which a memorandum of agreement could be expede and recorded in the Special Register kept under the Act; (2) that the pursuer should have proceeded by way of recording a memorandum, but that in the present case no prejudice has been suffered by the defenders in consequence of the form of proceedings taken; (3) that the defenders have paid to the pursuer all sums which have hitherto become due to him in respect of the said injury; (4) that in respect of said admission of liability, no declaration of liability requires to be pronounced in this action, and therefore assoilzies the defenders: Finds them entitled to expenses,” &c.

The following questions of law were, inter alia, submitted for the opinion of the Court—“(1) Whether the letter of 15th March 1901 was an agreement in terms of the Workmen's Compensation Act 1897, of which a memorandum could be recorded conform to said Act? (2) Whether said letter has not now been superseded by the decree in above cause? (3) Whether it is still competent to proceed by way of recording a memorandum on said letter in case of future incapacity?”

The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), sec. 1 (3), enacts—“If any question arises in any proceedings under this Act as to the liability to pay compensation under this Act, … or as to the amount or duration of compensation under this Act, the question, if not settled by agreement, shall … be settled by arbitration in accordance with the Second Schedule to this Act.”

The Second Schedule, sec. 8, provides—“Where the amount of compensation under this Act shall he ascertained … under this Act … by agreement, a memorandum thereof shall be sent, in manner prescribed by rules of Court … by any party interested to the registrar of the county court for the district in which any person entitled to such compensation resides, who shall, subject to such rules, on being satisfied as to its genuineness, record such memorandum in a special register without fee, and thereupon the said memorandum shall for all purposes be enforceable as a county court judgment.”

By section 14, in the application of the Act to Scotland, “‘sheriff’ is to be substituted for ‘county court judge,’ ‘sheriff-clerk’ for ‘registrar of the county court,’ and ‘Act of Sederunt’ for ‘rules of court.’”

Argued for the appellant—Although the appellant had in the meantime recovered from the effects of his injuries, he was entitled to have a declaration of the respondents' liability to pay compensation in the event of subsequent incapacity supervening. He could not now register a memorandum of agreement in terms of the respondents' letter of 15th March. having regard to the repudiation of liability contained in their letter of 17th May, and the decree of absolvitor pronounced by the Sheriff.

Counsel for the respondent were not called upon.

At advising—