Scottish Court of Session Decisions

Lord Young—The statement of facts is a peculiar one certainly—that the appellant was employed as a miner in the respondents' pit under four different contractors between 12th October 1902 and 7th October 1903; that these contractors were employed by the respondents at a contract price per ton for the amount of coal brought by them to the pithead; that on 7th October the appellant was discharged by one of the contractors, in whose immediate employment he then was; and then that he was out of employment on 8th October, and on 9th October 1903 entered the respondents' employment as a miner to do their work in their pit, his earnings being dependent on his output of coal.

The question is whether that was or was not continuous employment under the same employer. I should have thought that it was, and that if the man had been in the employment, say of a father who died in the course of his employment, and the business was taken up by his son, and he kept on the father's workmen, and the miner went on working at the same wages under the son as he had done under the father, I should have regarded that as the same employer. That is the only good sense of the thing, and therefore the meaning of the statute. When a mine-owner has the work done for him by contractors who employ workmen, I should have thought that the employment of anybody by these contractors to do the work in the mine-owner's pit was employment under the same employer, and that the real injury which the man suffered was deprivation of the work which he had continuously been employed to do for a whole year or approaching a whole year. To arrive at the other conclusion may be conforming to the literal interpretation of the statute, but is against the obvious meaning of the Act and the obvious justice of the thing to the sufferer in the very matter which the Act contemplates and provides that he shall have recompense for.

Lord Trayner—I think the Sheriff is right, and I cannot see how, on a sound construction of the statute (taking the Sheriff's statement of the facts), he could arrive at any other conclusion. The facts are that this man was employed not by the respondents but by an independent contractor or four independent contractors in the same pit for a period of about twelve months. But the Sheriff's statement excludes the idea that the twelve months could be employment in the service of the respondents. He says that the appellant was out of employment on the 8th of October and that he “entered” the respondents' employment—that is, he commenced to be the respondents' servant—on 9th October. If he entered the service of the respondents on the 9th October, it is quite obvious that he was not continuously in their employment prior to that date. The one statement excludes the other. But I think it is worth noticing that the terms of the employment under the contractors and the terms of the employment under the respondents were different in material respects, because the work done by the appellant under a contractor was remunerated by payment of a daily wage, whereas under his employment with the respondents his earnings depended upon his output of coal. So that the two contracts, namely, the contract of service with the contractor and that with the respondents were not only between different parties but were also different in their conditions. I do not think there is much difficulty about the construction of the statute. Schedule I, section 1, sub-section ( b), provides that when total or partial incapacity arises from an accident such as we have here described, the workman shall be entitled to compensation not exceeding 50 per cent. of his average weekly earnings during the period of 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. You cannot take into account employment for twelve months anterior to the accident or for any period whatever unless it has been employment under the same employer, and in my opinion that means the employer in whose employment the injury has been received for which compensation is claimed. Now, in this case the Sheriff has negatived the suggestion that the appellant was under the respondents for more than the two or three days he has enumerated. I think this a very hard case for the appellant, but though hard I think the necessary outcome is that the Sheriff had no alternative but to reach the conclusion to which he gave effect.

Lord Moncreiff—On the questions put to us by the Sheriff, and on the facts found by him, I agree with the majority of your Lordships. The appellant's claim is not made against the respondents as undertakers under the statute. The one question is whether the appellant was throughout in the employment of the respondents prior to 7th October 1903. Now the Sheriff states as a matter of fact that he was not—that prior to 7th October 1903 he was in the service of various contractors, no doubt in the defenders' pit, but in the service of the contractors, and that then a change of employment took place, and that he entered the employment of the defenders for the first time on 9th October 1903. On these facts I think we can only look at the period subsequent to 9th October 1903. Unfortunately this accident occurred on 13th October after he had only worked two days—but two days in different weeks—and on

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