Scottish Court of Session Decisions

Section 1 of Schedule I. of the Workmen's Compensation Act 1897 enacts—“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.”

This was a case stated for appeal by the Sheriff-Substitute at Dunfermline ( Gillespie) in the matter of an arbitration under the Workmen's Compensation Act 1897 between Shanks Fleming, wheeler, Dundas Street, Lochgelly, claimant and appellant, and the Lochgelly Iron and Coal Company, Limited, respondents.

The case set forth the following facts as admitted—“The appellant entered the employment of David M'Lean, a contractor with the respondents, in their Jenny Gray pit on Saturday, 26th October 1901, and continued in M'Lean's employment until Wednesday, 13th November following, when he was injured by an accident arising out of and in the course of his employment. The appellant has been, and still is, totally incapacitated for work as the result of said injury. Said ‘Jenny Gray’ pit is a ‘mine,’ and the respondents are the ‘undertakers’ in connection therewith in the sense of the Workmen's Compensation Act 1897. The appellant was engaged under the general regulations and conditions of employment in force at the respondents' colliery, which provide, as at all other collieries in Fife, that all workmen are bound to work eleven lawful days each fortnight, and give fourteen days' written notice, lodged at the respondents' office, before terminating their employment. At the respondents' colliery, and throughout Fife and other districts, with a view of facilitating the making up of the wages, the workmen are paid every second Saturday for the work done by them up to the previous Wednesday night. The appellant's employment from Saturday 26th October 1901 until Wednesday, 13th November following, including Sundays, embraces a period of nineteen days, and in that time the appellant worked fourteen and a-half shifts, being a shift every lawful day except Wednesday, 6th November, when the appellant did not work, and Monday, 11th November, when the appellant worked only half a shift. The appellant's wages were 5s. 6d. per shift, and he earned a total sum of £3, 19s. 9d. during the said period of his employment.”

On these facts the Sheriff stated his judgment in the following terms—“Upon these facts I was prepared as arbiter to hold, and would have so held, that the average weekly earnings of the pursuer were fairly stated at £1, 9s. 4d. per week, and I was accordingly prepared to award, and would have awarded, one-half of that sum weekly as the compensation due to him, but I considered myself precluded from so doing in consequence of the judgment of the Second Division in Niddrie and Benhar Coal Company, Limited v. Peacock, on 21st January 1902, and following that decision I awarded only the sum of ten shillings weekly, representing one-half of the average weekly wage of the appellant as distributed over the four calendar weeks in which he was employed.”

To his interlocutor in the arbitration the Sheriff appended the following note:—“Apart from authority I should have agreed with the pursuer's view that his average weekly earnings while in M'Lean's employment were fairly stated at £1, 9s. 4d., and consequently that he was entitled to half that sum weekly as compensation.

In reckoning average weekly earnings there is nothing in the statute in my humble opinion to show that the weeks to

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be taken into consideration must be calendar weeks, ending with Saturday night. In point of fact in many trades the pay week or fortnight does not end with Saturday, but runs from mid-week to mid-week. Notably this is so in the Fife Collieries.

The pursuer's contention is supported by the opinions delivered in the House of Lords in Knowles v. Lysons, though there seems a curious inconsistency between the opinions and the order of the House. It is also supported by the decisions of the Court of Appeal in Wheale v. Rhymney Iron Co., and Jones v. The Same, November 6, 1901, 1 K.B. [1902], 57.

Admittedly, however, the defenders' contention is in accordance with the decision of the Second Division above cited.

A peculiar and unfortunate situation has thus been created.

While my award as arbitrator in a Scots application under the Act is subject to the review of the Court of Session in either of its Divisions—in the option of the appellant—the Court of Session has been made the Court of final resort, and no appeal lies to the House of Lords. The statute is clear on this point—Second Schedule (14) ( c)—and it has been expressly decided by the House of Lords— Osborne v. Barclay, Curie, & Co., March 29, 1901, App. Cas. [1901], p. 268. I think therefore that an arbitrator under the Act in Scotland is bound to follow the decision of the Second Division until it is overruled, even in preference to a decision of the House of Lords.”

The questions of law were as follows:—“1. Whether it being the fact that the appellant's employment extended over the period from Saturday, 26th October, to Wednesday, 13th November inclusive, his average weekly earnings fall to be calculated by dividing his total earnings for said period by four, being the number of calendar weeks in parts of which he was employed? 2. Whether it was within my power as arbiter to find in fact and in law that the appellant is entitled to have his average weekly earnings assessed at £1, 9s. 4d., being proportion of said total sum earned, viz., £3, 19s. 9d. applicable to a period of his working week of seven days? or 3. Whether in any event it was within my power as arbiter to find that the appellant is entitled to have his average weekly earnings ascertained upon the footing of his actual earnings being divided by three or £1, 6s. 7d?”

Argued for the appellant—The proper method of arriving at the workman's average weekly earnings was to consider in how many trade weeks he had worked. There was nothing in the statute to compel the Court to read the word “week” as meaning “calendar week.” The natural and convenient meaning was the week for which by the custom of the particular employment the workman was usually paid. That was in accordance with the order pronounced by the House of Lords in Lysons v. Knowles [1901], A.C. 79,—as explained in Ayres v. Buckeridge [1902], 1 K.B. 57. In Lysons the workman had worked on a Tuesday, and also on the Thursday following, and it was decided that he had worked in two weeks, because the trade week in that case began on a Wednesday. The cases of Russell v. M'Cluskey, July 20, 1900, 2 F. 1312, 37 S.L.R. 931, and Cadzow Coal Company v. Gaffney, November 6, 1900, 3 F. 72, 38 S.L.R. 40, so far as adverse to the appellant's contention, must be held to have been overruled by the decision of the House of Lords in Lysons v. Knowles. The case of Niddrie and Benhar Coal Company v. Peacock, January 21, 1902, 39 S.L.R. 317, did not decide that “week” must mean “calendar week.” The question was not considered there, and there was nothing to show that the calendar week and the trade week did not in that case coincide.

Argued for the respondents—A week must be taken to mean a calendar week. That was the ordinary meaning of the word, and it had been so construed in all the Scotch cases— Small v. M'Cormick and Ewing, June 6, 1899, 1 F. 883, 36 S.L.R. 700; Cadzow Coal Company v. Gaffney, cit. supra, opinion of Lord Trayner; Niddrie and Benhar Coal Company v. Peacock, cit. supra. Even if the appellant's interpretation of the order in Lysons v. Knowles was correct, Niddrie and Benhar Coal Company was a Scotch decision of later date and should be followed.

At advising—