Scottish Court of Session Decisions

This was a case stated by the Sheriff-Substitute at Perth ( Sym), in an arbitration under the Workmen's Compensation Act 1897 between Alexander Husband junior, New Row, Perth, claimant and appellant, and P. & P. Campbell, dyers, Perth, respondents.

The case stated, inter alia, as follows:—“The applicant for compensation is a lad of seventeen years of age; for some time prior to July 31st 1902 he was employed in the works of Messrs P. & P. Campbell, dyers, Perth, the respondents, at boy's unskilled labour in assisting a dyer. The Workmen's Compensation Act 1897 applies to the employment in these dye works. The work in which the applicant was engaged was that of lifting parcels of goods about fourteen pounds weight and carrying them a short distance to the dyer for whom he worked; his wages were 8s. a-week. The applicant would not have risen above a labourer's position if kept on in the works. On the said 21st July the applicant was injured in the works by having his hand caught in a starching-machine, and in consequence the finger next the little finger of his left hand was severely crushed and torn, and had to be amputated. For the purposes of the arbitration the respondents admitted that the injury was one for which they are made liable in compensation under the Workmen's Compensation Act. For each week up to the week in which 13th October fell the respondents paid the applicant his full wages of 8s. per week which he would have earned had he been working. The respondents were willing to receive him back into their employment whenever he could return at safe work at the same wages of eight shillings. At 13th October they stopped the payments above referred to only after they had received his repeated promise to come back to work. The offer to receive him back was made in bona fide, because the respondents were aware that the applicant was playing about the streets. Eventually the applicant declined to return to the respondents' work, and in the beginning of November 1902 he took employment as message boy with a grocer at 6s. per week, which sum has since March 1903 been raised to seven shillings. Before that he had made no attempt to do work or to get work. This employment with a grocer does or may at any time require him to grasp or lift weights as heavy as or heavier than the bundles of goods which he had to lift in the respondents' works. The applicant's prospects and earning capacity appear, for aught proved, to be as good in the grocer's trade as in the trade of a dyer's labourer, to which he declines to return. He is now quite well though thinner than before the injury. Had he been kept on in the respondents' works and become a

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labourer, he might when grown up have earned somewhat over twenty shillings per week. The applicant admits (as does also the medical man examined on his behalf) that he could now do all his old work although deprived of one finger, and I find that in fact he could have done it and have earned 8s. per week by 13th October 1902.”

The Sheriff-Substitute assoilzied the respondents, holding that the payments referred to exhausted their liability, and that it was unnecessary to make a declaration such as would keep the action in Court.

The question raised at the hearing of the appeal was whether the appellant was entitled to such a nominal award or declaration of the respondents' liability as would keep open any claim he might have in the event of supervening incapacity.

Argued for the appellant—Even if the appellant had sustained no loss the Sheriff would not have been justitied in assoilzieing the respondents, but should have made such a declaration of their liability as would have preserved the appellant's right to compensation in the event of his being incapacitated by any supervening effects of his injury— Freeland v. Macfarlane, Lang, & Co., March 20, 1900, 2 F. 382, 37 S.L.R. 599; Ferrier v Gourlay Brothers, March 18, 1902, 4 F. 711, 39 S.L.R. 453; Irons v. Davis & Timmins, (1899), 2 Q.B. 330.

The respondents were not called upon.