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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gibb v. Dunlop & Co. (1900) Ltd [1902] ScotLR 39_750 (09 July 1902)
URL: http://www.bailii.org/scot/cases/ScotCS/1902/39SLR0750.html
Cite as: [1902] ScotLR 39_750, [1902] SLR 39_750
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SCOTTISH_SLR_Court_of_Session
Page: 750↓
Court of Session Inner House Second Division.
[Sheriff-Substitute of Lanarkshire at Airdrie.
v.
Facts:
A workman was employed for over twelve months prior to 16th August 1901 by a colliery company as a brusher at an average weekly wage of £1, 17s. 6d. On that date he was accidentally injured, and was thereafter off work till 15th October. From 31st August till 15th October he was paid compensation by the company at the rate of 18s. 9d. per week. On 15th October 1901 the workman resumed work, and was again accidentally injured after working for two hours and earning 1s. 10
d. 1 2 Held that the period of employment contemplated by Schedule 1, section 1 ( b), was a continuous employment during which the relation of master and servant substantially continued to exist between the employer and workman; that the period from 16st August to 15th October 1901, during which the workman was off work, constituted a break in his employment with the company; and that he was only entitled to compensation on the footing that his employment with the company had commenced on 15th October, the date on which he had resumed work.
Grewar v. Caledonian Railway Company, June 19, 1902, 39 S.L.R. 687, followed.
The Workmen's Compensation Act 1897, First Schedule, enacts:—“(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.”
This was an appeal in an arbitration under the Workmen's Compensation Act 1897 before the Sheriff-Substitute of Lanarkshire at Airdrie ( Mair), between James Gibb, brusher, Airdrie, claimant and respondent, and James Dunlop & Company, Limited, coalmasters, Calderbank, appellants.
The following facts were admitted:—“( First) That for over twelve months prior to 16th August 1901 the respondent was employed by the appellants as a brusher at an average weekly wage of £1, 17s. 6d., the engagement being terminable at the will of either party: ( Second) That on that date he was accidentally injured in the course of his employment: ( Third) That from 31st August to 15th October he, being unable to work, was paid compensation by the appellants under the Workmen's Compensation Act 1897 at the rate of 18s. 9d. per week: ( Fourth) That on 15th October he being able to resume work did so, and was again accidentally injured in the course of his employment after working for two hours and earning 1s. 10
d.” 1 2 On these facts the Sheriff-Substitute found in law that the respondent was entitled to compensation at the rate of 18s. 9d. per week.
The following questions of law were stated for the opinion of the Court—“(1) Whether the period of eight and a half weeks prior to 15th October 1901, during which respondent was off work but in receipt of compensation from the appellants, did not constitute a break in his employment with them? (2) If not, does said period fall to be taken into account in calculating the respondent's average weekly earnings for the 12 months prior to 15th October 1901, the date of the accident in respect of which compensation has been
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awarded? (3) If said period is to be so taken into consideration, is the amount paid in compensation during that period to be treated as earnings?” James Dunlop & Company (1900) Limited, appealed.
Argued for the appellants—The workman had only worked for part of one day, and the only materials for fixing his average weekly earnings were what he had actually earned, viz., 1s. 10
d., and he was therefore entitled to half of that sum—First Schedule, section 1 ( b). The Act contemplated an unbroken period of employment— Niddrie and Benhar Coal Company, Limited v. Peacock, January 21, 1902, 39 S.L.R. 317; Lysons v. Knowles [1901], A.C. 79; Cadzow Coal Company v. Gaffney, November 6, 1900, 3 F. 72, 38 S.L.R. 40. As to the effect of a break in the period of employment, see Appleby v. Horseley Company, [1899], 2 Q.B. 521; Jones v. Ocean Coal Company [1899], 2 Q.B. 124; Small v. M'Cormick & Ewing, June 6, 1899, 1 F. 883, 36 S.L.R. 700; Russell v. M'Cluskey, July 20, 1900, 2 F. 1312, 37 S.L.R. 931. The case of Ayres, cited infra, relied on by the respondent had been disregarded in the case of Peacock. The decision in Ayres was inconsistent with the decision in Lysons. 1 2 Argued for the claimant and respondent—The Sheriff had found in fact that the employment was continuous, and his decision was final— Small v. M'Cormick & Ewing ( cit. supra); Nelson v. Kerr & Mitchell, June 8, 1901, 3 F. 893, 38 S.L.R. 645. A workman would be entitled to compensation although he had only gone to his work and had earned nothing before he was injured— Leonard v. Baird & Co., June 8, 1901, 3 F. 890, 38 S.L.R. 649. From what had been actually earned it was competent to ascertain his probable weekly earnings— Ayres v. Buckeridge [1902], 1 K.B. 57; Bartlett v. Tutton & Sons [1902], 1 K.B. 72.
While the case was at avizandum the case of Grewar v. Caledonian Railway Company, June 19, 1902, 39 S.L.R. 687, was decided in the First Division.
At advising—
It has already been held in similar cases that “employment” means “continuous employment.” Where employment ceases, and after an interval a new period of employment is begun under a new engagement, that period alone is to be considered. In short, as it was expressed in the case of Jones v. The Ocean Coal Company “there must be a continuous relation of master and servant.” This view of the matter is strongly confirmed by the decision pronounced a few days ago in the First Division in the case of Grewar, June 19, 1902, 39 S.L.R. 687. In this case, counting back from the time of the second accident, there was only a continuous relationship for part of one day. That, under the ruling of the House of Lords in Lysons' case, is sufficient to give a title to compensation, although the schedule prescribes the calculation to be on an average of weekly earnings. But the calculation must be, in accordance with Lysons' case, on what was actually earned during the week, although work was only done on one day or only part of one day in the week. Therefore what he earned in the only week in which he was engaged must give the measure for the compensation, which unfortunately in this case is only a nominal sum.
In my opinion, the first question must be answered in the affirmative, and the case remitted back to the Sheriff Court, that an award may be given on the footing that the employment was only begun on 15th October, and that the rules as to compensation must be applied to what was earned in that week only, as there was no other week of continuous employment which can be legally included in ascertaining the earnings.
In this view it is unnecessary to answer the second and third questions.
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I take it as a fact that the incapacity which was caused to the respondent by the injury which he sustained on 16th August had ceased by 15th October, and that he then resumed work in the appellants' employment with the full capacity which he had before the accident of August which forced him to leave it and go without any employment during the intervening two months. The deprivation of this capacity resulting from the accident of 15th October is what he is to be compensated for. Regarding the amount and mode of payment of any compensation under the Act the parties may of course agree. If they do not the statute enacts that it shall in all cases of incapacity for work be by weekly payments of amounts determined by the arbitrator, and necessarily subject to variation, seeing that total incapacity may diminish to partial, or partial increase to more or diminish to less than it was at first.
The Sheriff (the arbitrator) in the case before us states as a fact—or decides the case on the footing that it is—that the respondent's working capacity, estimated by his wage-earning capacity before the accident, was to work so as to earn £1, 17s. 6d. on an average weekly. He, however, orders a weekly payment of only 50 per cent. of that amount, because of section 1 ( b) of the First Schedule of the Workmen's Compensation Act, which enacts that the weekly payment to a workman as compensation for “total or partial incapacity for work” shall be not “exceeding 50 per cent.” …
It is said that the effect of this section is to entitle a workman who has met with an accident to 50 per cent. of his average weekly earnings. It does not—it would be altogether extravagant to say it did. The words are—“Where total or partial incapacity for work results from the injury, a weekly payment during the incapacity after the second week, not exceeding 50 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.” Now, the partial incapacity may not amount to one-half or one-quarter of 50 per cent. of his capacity before the accident. To say that the statute in such circumstances entitles him to the whole of the 50 per cent. would be ridiculous. The Sheriff's view is that the respondent having been employed by the appellants during, not the whole, but ten of the twelve months, previous to 15th October 1901, when the incapacitating accident occurred, the weekly payment awarded to him as compensation cannot at any time be one exceeding 50 per cent. of his average weekly earnings (£1, 17s. 6d.) during that period.
The contention of the appellants, as I understand it, is that the period less than the whole of “the previous twelve months” (meaning previous to the accident) during which the respondent was employed by them was two hours of the day of the accident, and that the sum of 1s. 10
I concur in the judgment of the Sheriff and reject the contention of the appellants.
To avoid misapprehension I think it right to explain that in my opinion it was the duty of the Sheriff to ascertain and have regard to the average weekly earnings of the respondent before the accident, and thereby and with the aid of any other evidence having legitimate bearing on the subject to form a judgment as to his working capacity on 15th October, of which the injury for which he asked compensation deprived him. The facts as stated and the judgment pronounced satisfy me that the Sheriff discharged this duty properly and fully. I make this explanation because the three questions of law stated in the case seem to me to be all of them quite irregular and irrelevant. They must have been stated by one of the parties and somehow overlooked by the Sheriff, whose judgment and the grounds of it are, as I have observed, distinctly stated in the narrative which precedes them.
I think it clear that the Sheriff's judgment cannot be impeached otherwise than on the ground that he erroneously in law took account of or had regard to the average weekly earnings of the respondent in the employment of the appellants on contract antecedent to that on which he was working on 15th October. It was, I think, conceded by the appellants' counsel that their antecedent employment of him might have been taken account of had it subsisted till the day before 15th October, when that in which the accident occurred commenced. I think there was no legal connection between the contract of employment which ended on 16th August and that which commenced on 15th October, nor would have been had the interval been much less than six weeks, say six days or six hours. The 15th October 1901 was a Tuesday. Suppose that the respondent had taken holiday or rest from the previous Wednesday, feeling slightly unwell, or to attend a wedding, his own or a friend's, and returning to the appellants' colliery on the Tuesday, was again employed by them as he had been, and proceeded to work with unquestioned capacity for it. Suppose everything else in the case to be exactly as it is—that the
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I am therefore for not answering any of the questions, but would express the opinion on the general merits of the case as stated by the Sheriff-Substitute that the average weekly earnings of the workman during the time he was in the employment of the appellants ought to be taken into account, and that the arbitrator ought to divide what he earned by the number of weeks during which he earned it, the result giving his average weekly earnings in the sense of the statute.
My opinion clearly is that on a sensible and reasonable construction of the Act you must take his average weekly earnings during the time he was fully able to work, and give him compensation on that footing, as in fact the Sheriff-Substitute has done.
The Court pronounced this interlocutor—
“Sustain the appeal and recal the award of the arbitrator: Find in answer to the first question that the period of eight and a-half weeks prior to the 15th October 1901, during which the respondent was off work, constituted a break in his employment with the appellants, and remit to the arbitrator to determine the compensation due to the respondent on the footing that his employment with the appellants, in the course of which he received the injury complained of, commenced on said 15th October 1901: Find it unnecessary to answer the other questions: Find and declare accordingly, and decern.”
Counsel for the Claimant and Respondent— Watt, K.C.— A. Moncreiff. Agents— Simpson & Marwick, W.S.
Counsel for the Appellants— Salvesen, K.C.— Hunter. Agents— W. & J. Burness, W.S.