Scottish Court of Session Decisions

Lord Pearson—This is an appeal on a case stated by the Sheriff-Substitute of Forfarshire at Dundee under the Workmen's Compensation Act.

The appellants are shipbuilders in Dundee, and on 5th September 1905 the respondent received injuries in the course of his employment in their shipyard, which entitled him to compensation under the statute. The maximum amount due to him, on the footing of total incapacity for work, was 9s. 9d. a-week, being one-half of his average weekly earnings. This sum was duly paid to him by the appellants from a fortnight after the accident until 23rd January inclusive, that is to say, for four months and a-half. By the time the next weekly sum was payable, which was on 30th January, the respondent, through a solicitor, had given notice of the accident, and had presented a petition to the Sheriff for arbitration.

At the hearing before the Sheriff-Substitute on 9th February the appellants objected to the petition as incompetent, on the ground (1) that when it was presented there was no question between the parties within the meaning of section 1, sub-section 3, of the Act, and (2) that there was a subsisting agreement between the parties for compensation at the full statutory rate which had been regularly paid and accepted.

The Sheriff-Substitute allowed a proof, and found compensation due at the rate already mentioned, from the date of the last payment until the further orders of Court; and he awarded modified expenses to the respondent.

The Sheriff-Substitute thus virtually repelled the employers' objections to the petition; and so far as the stated case shows, the ground on which he did so was, that in making payment of the weekly compensation to the respondent the appellants had intimated to him, apparently oil more than one occasion, that in their opinion and in that of their medical adviser “he had recovered and ought to be seeking for work, and that the payment of 9s. 9d. would in a very short time be stopped.” In the view of the Sheriff-Substitute there had thus arisen a question as to the duration of compensation within the meaning of section 1, sub-section 3. In my opinion, no such question had arisen at the date when the petition was lodged, which is the material date. By the terms of the Act itself every payment of compensation is subject to review de futuro; and I regard the words used by the appellants when they made the payments as being no more than an expression of what the statute implies, namely, that the payments might have to be reviewed in the future, and even in the near future. In that sense the duration of compensation is always uncertain; but that does not mean that there is always a question as to its duration within the meaning of section 1, sub-section 3. There might be a case of payments being stopped on an allegation of complete recovery. But that is not this case. Here full payment had been regularly made down to date in accordance with the appellants' liability under the statute. It lay with the employer to make the next move, namely, to require the workman to submit himself for examination under section 11 of Schedule 1; and I see no reason at all for the assumption that in this case the employers would have taken the matter into their own hands. Indeed, I draw the contrary inference from the facts set forth by the Sheriff-Substitute as proved.

It follows that the petition should have been dismissed, unless it can be supported on the ground indicated in the second question of law stated by the Sheriff-Substitute. That question is, whether, where a workman has no agreement capable of registration under the Act, “he is entitled to have his right to compensation constituted and controlled by a court of law as a guarantee against injustice being done to him or by him?” The only possible answer is, that neither party has any right under the statute except what the statute confers; and that the question ignores the statutory conditions upon which alone an arbitration is admissible under section 1, sub-section 3. It is not until the parties are at arm's length that the statute contemplates a resort to arbitration, and then only when some definite question has arisen between them, which they have had at least an opportunity of settling by agreement and which they have failed so to settle. The mere fact that there exists no agreement capable of registration does not show that the parties are at arm's length. On the contrary, that is the normal state of matters, where, as here, the parties are de facto in agreement from the very first, and where compensation has been paid over a, period of many weeks on the maximum scale.

In these circumstances I am of opinion that the Sheriff-Substitute ought to have dismissed the petition; and that his award of expenses was incompetent and must be recalled.

The Lord President and Lord Kinnear concurred.

Lord M'Larenwas not present.