Scottish Court of Session Decisions

The Workmen's Compensation Act 1897, First Schedule (1), 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 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 £1.”

This was an appeal upon a stated case from the Sheriff Court at Edinburgh in an arbitration under the Workmen's Compensation Act 1897, between William Brown, Tolbooth Wynd, Leith, pursuer and respondent, and J. & J. Cunningham, Limited, Leith, defenders and appellants, in which the pursuer claimed compensation from the defenders at the rate of 11s. weekly from 17th March 1904.

The Sheriff Substitute ( Guy) held the following facts proved or admitted—“(1) That the appellants carry on trade at Bowling Green Street, Leith, as manufacturers of artificial manures and oil-cake. (2) That in the premises occupied by them at Bowling Green Street aforesaid, mechanical power, namely, machinery driven by steam, is used in aid of the manufacturing process. (3) That the said premises are a factory within the meaning of the Workmen's Compensation Act, 1897. (4) That on Saturday, 20th February 1904, the respondent was employed by the appellants to assist in the removal from one part of said premises to another, certain locust beans and crushed bones. (5) That the appellants contracted and agreed to pay to the respondent £1 a-week for his labour. (6) That the respondent worked on Saturday, 20th February, and thereafter on Monday 22nd, Tuesday 23rd, Wednesday 24th, and Thursday 25th February, on which date one of the fingers of his left hand was penetrated by a portion of one of the bones he was engaged in removing. That the respondent continued to work after his said injury on the day on which he received it and on the two followings days, on the latter of which (Saturday, 27th February) the appellants terminated his employment, and paid him in one sum at the rate of £1 per week for the whole period of his employment, together with a small sum for overtime. (7) That blood poisoning resulted from said injury, necessitating the amputation of the finger. (8) That total incapacity for work resulted from the injury. (9) That the respondent is a workman and the appellants are the undertakers within the meaning of the said Act.”

The Sheriff-Substitute further stated—“In these circumstances I held in law that

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the appellants are liable to make payment to the respondent of compensation by weekly payment during the respondent's incapacity after the second week after the injury, not exceeding 50 per cent. of the respondent's said average weekly earnings, and that the average weekly earnings of the respondent for the period previous to the injury in which he had been in the employment was 20s., being the rate at which he was employed and paid. The amount he in fact was paid was 23s. 6d. This included the said small sum for overtime and also included wages earned for the time the respondent worked after receipt of the injury. I further held that if the amount actually earned by the respondent was to be held as fixing the maximum of his average weekly earnings, that sum did not fall to be divided by two, as at the date of his injury he had not been employed for two weeks, and no evidence had been led as to the terms of the working weeks in the appellants' employment, or as to how much the respondent had actually earned at the date of his injury. I assessed the compensation payable to the respondent at 50 per cent. of said £1, and decerned against the appellants to make payment to the respondent of the sum of 10s. per week, beginning the first weekly payment as on 17th March 1904, and so forth weekly thereafter.”

The questions of law for the opinion of the Court were “(1) Whether the average weekly earnings of the respondent, within the meaning of section 1 ( b) of the First Schedule to the Workmen's Compensation Act 1897, amounted to £1. (2) In the event of the first question being answered in the negative, whether the respondent having been employed and paid at the rate of £1 per week, but not having worked for a whole calendar week in his employment prior to the injury, the average weekly earnings fall to be assessed at the sum actually earned by him at the date of the injury. (3) Whether, in ascertaining the respondent's average weekly earnings, the sum earned by him ought to have been divided by two in respect that the first day on which he worked was a Saturday, and the other days were in the following calendar week. (4) In the event of the wages earned by the respondent falling to be divided by two in respect of his having worked during two different weeks, whether the whole wages earned by the respondent, including the wages earned after the injury, fall to be so divided, or only the wages earned prior to the injury.”

Argued for the defenders and appellants—The Court had decided that the measure of compensation under the first schedule of the Act was not what the workman contracted to get, but what he had actually earned. To get at the average weekly earnings what the workman had earned must be divided by the number of weeks during the course of which he had been employed. In the present case he had been employed during the course of two weeks and his wages must be divided by two— Russell v. M'Cluskey, July 20, 1900, 2 F. 1312, 37 S.L.R. 931—opinion of Lord M'Laren, 1317 and 935; Cadzow Coal Company Limited v. Gaffney, November 6, 1900, 3 F. 72, 38 S.L.R. 40—opinion of Lord Trayner 74 and 42; Peacock v. Niddrie & Benhar Coal Company, Limited, January 21, 1902 4 F. 443, 39 S.L.R. 317; M'Hugh v. Barclay, Curie & Company, June 19, 1902, 4 F. 909, 39 S.L.R. 690; Grewar v. Caledonian Railway Company, June 19, 1902, 4 F. 895, 39 S.L.R. 687—opinion of Lord Adam 899 and 690; Gibb v. Dunlop & Company, Limited, July 9, 1902 4 F. 971, 39 S.L.R, 750; Lysons v. Andrew Knowles & Sons, Limited [1901], A.C. 79.

Argued for the pursuer and respondent—None of the authorities quoted by the other side were in point. They dealt either with a daily labourer or a labourer employed over broken terms. Here there was a definite contract for a specified rate of weekly wages and that weekly wage had been earned during one week. In such circumstances there was no need to go into a hypothetical case in order to strike the average wage. There was here a definite standard of compensation, and it was not necessary to employ an arithmetical computation to reduce the wages to a definite standard— Lysons, supra, opinion of Lord Halsbury [1901], A.C. p. 87, Lord Davey, p. 98, and Lord Robertson, p. 100.

At advising—