Scottish Court of Session Decisions

[This case is reported ante ut supra and was now heard along with the immediately following case of Sweeney v. Gourlay Brothers & Company (Dundee), Limited.]

The Workmen's Compensation Act 1897, sec. 1, sub-sec. (3), enacts—“If any question arises in any proceedings under this Act as to the liability to pay compensation under this Act (including any question as to whether the employment is one to which this Act applies), or as to the amount or duration of compensation under this Act, the question, if not settled by agreement, shall, subject to the provisions of the First Schedule to this Act, be settled by arbitration in accordance with the Second Schedule to the Act.”

Section 6 of the Second Schedule provides that the expenses of the arbitration shall be in the discretion of the arbiter (v. supra in second rubric).

On 13th March 1906 the First Division of the Court ordained the Sheriff-Substitute at Dundee ( Campbell Smith) to state a case in an arbitration under the Workmen's Compensation Act 1897 between Robert Kennedy, apprentice shipwright, 59 Dock Street, Dundee, now respondent, and the Caledon Shipbuilding and Engineering Company, Limited, Lilybank Works, Dundee, now appellants ( v. supra, page 430). The Sheriff-Substitute had pronounced this interlocutor, dated 10th November 1905:—“Finds the defences as stated to be irrelevant: Finds the pursuer entitled to compensation from the defenders under the Workmen's Compensation Act 1897 at the rate of four shillings and sixpence weekly, as and from 28th October 1905, until the further orders of the Court: Further finds the pursuer entitled to expenses from the defenders, modified to two guineas, and decerns.”

The stated case set forth—“On 2nd November 1905 the respondent presented an application in the Sheriff Court at Dundee, praying the Court to find him entitled to compensation from the appellants under the said Act in respect of personal injuries caused to the respondent on 14th October 1905 by accident arising out of and in the course of the respondent's employment with the appellants; to ascertain and fix such weekly payments as might be found to be due and payable to the respondent by the appellants under and in terms of the said Act; and to grant an award in favour of the respondent against the appellants therefor, with expenses. Notice of the accident had been duly given in terms of the statute. On the presentation of the application the usual warrant was granted for citation of the appellants, and appointing parties to be heard on 10th November 1905. On that day (10th November 1905) the Sheriff-Substitute heard parties' procurators. At the hearing, or after it, on the same day, the appellants' procurator lodged in process a written note of defences containing the pleas—(1) That the application was incompetent. (2) That the application should be dismissed with expenses to the appellants in respect that— (a) No question had arisen between the parties within the meaning of the Workmen's Compensation Act when the application for arbitration was presented. ( b) Reasonable opportunity was not given to the appellants to admit their liability to pay the compensation claimed before the application was presented. The only part of these pleas argued at the bar, as understood by the Sheriff-Substitute, was that the action had been prematurely brought, and that therefore no expenses should be allowed to the respondent. The following facts were admitted at the bar— That on 14th October 1905 the respondent, while in the employment of the appellants, met with an accident entitling him to compensation under the Workmen's Compensation Act. That on 28th October 1905 the compensation to which he was entitled began to run. That on 31st October 1905 written notice of the accident was duly given to the appellants in terms of the Act. That on 2nd November 1905 the application was presented to the Court. That citation was effected on 3rd November 1905. That down to 10th November 1905, when the application was called before the Sheriff-Substitute as aforesaid, no payment of compensation had been made or tendered to the respondent, although the compensation had begun to run on 28th October 1905, and thirteen days' compensation was thus due. That down to 10th November 1905, when the application was called as aforesaid, no memorandum of agreement under the said Act had been sent to the sheriff-clerk either by the appellants or the respondent, although twenty-seven days had then elapsed since the accident.… The appellants did not aver that in fact any agreement had been made, but asserted merely that they were willing to pay.… The Sheriff-Substitute … was of opinion that, prior to the hearing on 10th November 1905, no ‘agreement' within the meaning of section 1, sub-section 3, of the Act had been arrived at. He was, however, fully satisfied that an agreement, entitled to the sanction of the Court, had been arrived at by the agents, and, relying on their statements at the bar, he gave effect to it, and further that, without decree, the respondent could not enforce payment of any sum whatever. The Sheriff-Substitute was further of opinion— (a) that no agreement having been arrived at prior to the hearing on 10th November 1905, and

Page: 689↓

the respondent having presented an application for arbitration, a ‘question’ had arisen within the meaning of section 1, sub-section 3, of the Act; and (6) that, in any event, in respect that prior to the hearing on 10th November 1905 the parties were admittedly at one only as to the liability to pay compensation, and not as to the amount or duration of compensation, and in respect that notwithstanding the general admission of liability to pay compensation no payment of compensation had been made, and the compensation was thus in arrear, a ‘question’ had arisen within the meaning of said section…”

The written notice of claim dated 31st October was alternatively under the Employers' Liability Act 1880 or the Workmen's Compensation Act 1897.

Various questions of law were stated, but the Court found it unnecessary to answer them.

Argued for the appellants—The Sheriff-Substitute was in error in thinking that a “question” in the sense of section 1, subsection 3, of the Act had arisen here. There was no such question, and that being so the application should have been dismissed. A workman was not entitled to institute a claim in all cases at the expense of the employer, and irrespective of the fact whether his claim was admitted or not. Nor was he entitled to rush into Court with an arbitration before his employer had had time to accede to his claim or to pay the compensation admitted. The crucial date here was the date of the application, viz., 2nd November. Compensation was not payable till 4th November; the application was therefore incompetent. It should have been dismissed and expenses should then have been awarded to the appellants instead of to the respondent. Reference was made to Field v. Longden & Sons, [1902] 1 KB 47, and to the previous report of Caledon Shipbuilding and Engineering Company, Limited v. Kennedy, March 13, 1906, supra, p. 430.

Argued for the respondent—The claim here was not really made till 10th November. The application of 2nd November was merely the notice of the claim (vide section 2 of the Act). By 10th November the compensation was in arrear and no agreement had been registered. The question of expenses was a matter solely in the discretion of the arbiter (vide Schedule II, section 6).

At advising—