Scottish Court of Session Decisions

The Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37), Sched. 1, sec. 12, enacts—“Any weekly payment may be reviewed at the request either of the employer or of the workman, and on such review may be ended, diminished, or increased, subject to the maximum above provided, and the amount of payment shall, in default of agreement, be settled by arbitration under this Act.”

Schedule 2, sec. 8, as made applicable to Scotland by sec. 14 (6), provides—“Where

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the amount of compensation under this Act shall have been ascertained, or any weekly payment varied, or any other matter decided, under this Act, either by a committee or by an arbitrator or by agreement, a memorandum thereof shall be sent, in manner prescribed by [Act of Sederunt],… to the [Sheriff Clerk] for the district in which any person entitled to such compensation resides, who shall, subject to such [Act of Sederunt], on being satisfied as to its genuineness record such memorandum in a special register without fee, and thereupon the said memorandum shall for all purposes be enforceable as a [Sheriff Court] judgment: Provided that the [Sheriff] may at any time rectify such register.” (14) “In the application of this schedule to Scotland … ( b) any award or agreement as to compensation under this Act may be competently recorded for execution in the Books of Council and Session or Sheriff Court books, and shall be enforceable in like manner as a recorded decree arbitral.”

The Fife Coal Company, Limited, having its registered office at Leven and carrying on business at Cowdenbeath, brought a note of suspension of a charge made at the instance of John Davidson, miner, Cowdenbeath.

The charge given to the complainers was—“I, Charles Henry, sheriff officer, Dunfermline, by virtue of an extract registered memorandum of agreement, under the Workmen's Compensation Act 1897, between John Davidson …, applicant, and The Fife Coal Company, Limited …, respondents; which memorandum of agreement is recorded in the register kept for the Sheriff Court at Dunfermline, under the Workmen's Compensation Act 1897, on the fifteenth day of September 1904, and in the Sheriff Court Books of the County of Fife, at Cupar, for preservation and execution, on the twenty-eighth day of July 1905, and in which the respondents agreed to pay the applicant the sum of sixteen shillings and sixpence sterling per week of compensation, which compensation was reduced by agreement between the applicant and the respondents to eleven shillings and sixpence sterling per week, as from twenty-eighth day of September 1904, in His Majesty's name and authority, and in name and authority of the said Sheriff, I, the said Charles Henry, sheriff officer, lawfully charge you, the said Fife Coal Company, Limited, respondents, to make payment of the said sum of eleven shillings and sixpence sterling per week as from and after the thirteenth day of October 1904, and that to the said John Davidson, applicant, within seven days after this my charge, under the pain of poinding.-..”

The execution of charge was—“Upon the sixteenth day of August Nineteen hundred and five years, I, Charles Henry, sheriff officer, Dunfermline, duly charged the Fife Coal Company, Limited, … respondents within designed, to implement the foregoing memorandum of agreement by making payment of the sum of eleven shillings and sixpence sterling per week as from and after the thirteenth day of October Nineteen hnndred and four years, and that to the within designed John Davidson, applicant, within seven days after this the date of my charge, under the pain of poinding in virtue of the foregoing extract registered memorandum of agreement. This I did by …”

The complainers pleade—“(1) The said charge is inept, in respect that it bears to proceed upon a recorded memorandum of agreement which has not been binding on the complainers since 28th September 1904. (2) The said charge should be suspended in respect that it proceeds upon an agreement, no memorandum of which has been recorded, as required by section 8 of the Second Schedule of the Workmen's Compensation Act 1897.”

The facts of the case are given in the opinion of the Lord Ordinary ( Johnston), who on 13th December 1905 pronounced an interlocutor suspending the charge.

Opinion.—“In this case the respondent Davidson, a miner in the employment of the Fife Coal Company, Limited, was injured on 16th January 1904. He claimed compensation from the company under the Workmen's Compensation Act 1897. There are said to have been four stages in the adjustment of weekly compensation between him and the company, all proceeding upon the footing that his average weekly earnings prior to the accident were 33s.:—(1) On the footing of temporary total disablement the parties at first agreed upon 16s. 6d. per week, being half the average earnings, and therefore the maximum rate under the Act. This agreement was not recorded under the Act, but Davidson received compensation at the above rate from 31st January to 23rd March 1904. (2) On 23rd March he was able to resume work, and for a short time earned 27s. per week, and the parties agreed to vary the rate of compensation by diminishing it to 3s. a-week, and this was paid from 23rd March to 21st April 1904. No memorandum of this agreement was recorded. (3) On 21st April 1904 Davidson again became totally incapacitated, and the parties agreed to vary the compensation by raising it again from 3s. to 16s. 6d. per week, and the latter rate was paid from 21st April to 27th September 1904. A memorandum of this agreement was recorded by Davidson on 15th September 1904, and registered 28th July 1905. (4) On 28th September 1904 the parties again agreed to vary the compensation by reducing it from 16s. 6d to 11s. 6d. per week in respect of Davidson's partial return to work, and compensation at the latter rate was paid up to 12th October. No memorandum of this agreement was recorded.

In the end of October 1904 the parties came to differ, not only as to Davidson's earning capacity, but also as to the measure of the company's liability to supplement, and consequently from 12th October 1904, though certain sums of compensation have been tendered, none have been accepted. I am not called upon to come to any determination

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either as to Davidson's earning capacity, or as to the measure of the company's liability, as the question raised between the parties in the present suspension admits of being determined upon other grounds.

On 16th August 1905 Davidson charged the company to make payment to him of 11s. 6d. per week as from and after the 13th of October 1904. The charge is in process, and its terms require to be carefully examined—… [ His Lordship related the terms of charge, ut sup.] …

This I understand to be the charge left with the complainers, but also in process is the execution of charge returned by the officer. It was not referred to in argument, and I can only say that its irregularity betrays the difficulty which the officer evidently had in framing his execution to cover what he was attempting to do.

The company have suspended the charge as inept. Their ground of suspension is that the only warrant for such charge is a memorandum of agreement recorded in terms of the statute; that from and after 28th September 1904 Davidson could no longer charge under the agreement made on 21st April and recorded on 15th September 1904, as it had been superseded by the agreement made on 28th September 1904, and that he could not charge upon the latter agreement because no memorandum of it had ever been recorded; and further, that he was not entitled to use the recorded agreement as a warrant to charge for the restricted compensation of the subsequent unrecorded agreement. In this contention I think that the company are well founded.

On the face of the execution of the charge itself, the validity of the charge appears to be very doubtful. If the charge had proceeded on the recorded agreement, and simply restricted the sum charged for to a less sum than contained in the agreement, the charge on the face of it might have been unexceptionable. But the way in which the second agreement is introduced renders it doubtful what really was the warrant for the charge. But I do not proceed on this as my ground of judgment.

These memoranda of agreement draw their operative force from the statute and its relative schedules; and on an examination of these I have come to the conclusion that each agreement for compensation or for variation of compensation sands by itself, and to have statutory effect must be recorded. Once an agreement to vary is entered into, and a memorandum of it recorded, the previous agreement ceases to be operative. Till it is recorded, the previous agreement stands as the only statutory agreement. The recording of the previous agreement cannot supply the want of recording of the agreement to vary. The agreement to vary is no mere codicil or postscript to the original agreement, and cannot come under its wing so as to get the benefit of its recording. The Act (60 and 61 Vict. chap. 37) provides that if in any employment to which the Act applies, personal injury by accident is caused to a workman his employer shall be liable to pay compensation to him in accordance with the first schedule to the Act. The first schedule, section (1) [b], provides that ‘The amount of compensation under this Act shall be, 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 the workman's average weekly earnings, such weekly payment not to exceed one pound’; section (2) provides that, in fixing the amount of the weekly payments regard shall be had to the difference of the amount of the weekly earnings of the workman before the accident and the average amount which he is able to earn after the accident; and section (12) provides that any weekly payment may be reviewed at the request either of the employer or of the workman, and on such review may be ended, diminished, or increased, subject to the maximum above provided, and the amount of payment shall, in default of agreement, be settled by arbitration under this Act. With a view to such review, section (11) provides for medical examination of the injured workman.

The second schedule contains provisions for settling by arbitration, inter alia, questions of compensation. Section (8) provides that, where the amount of compensation under this Act shall have been ascertained or any weekly payment varied under this Act, either by an arbitrator or by agreement, a memorandum thereof shall be sent by the arbitrator, or by any party interested, to the sheriff-clerk for the district in which any person entitled to such compensation resides, who shall record such memorandum in a special register without fee, and thereupon the said memorandum shall for all purposes be enforceable as a Sheriff Court judgment. And section (14) [b] further provides that any award or agreement as to compensation under this Act may be competently recorded for execution in the Books of Council and Session or Sheriff Court books, and shall be enforceable in like manner as a recorded decree arbitral.

The scheme of the statute I understand to be this—let the compensation be ascertained either by arbitration or agreement, verbal it may be, then any party interested may make that formal by recording a memorandum in the special register, but the rules made under the statute provide for such notice as will ensure the correctness of record so to be made. But this recorded memorandum only constitutes the agreement. To make it effective as a conventional decree it must be registered in the ordinary books of Court.

It appears to me, therefore, that the statute does not contemplate that any agreement shall be enforced under the statute except the last recorded agreement, which on being recorded may then be registered for execution, and that it does contemplate that, to make it enforceable by diligence, the agreement to vary must itself be recorded and registered just as much as the original agreement. At 16th August

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1905, the date of charge, the only thing on which a charge by Davidson could proceed was the memorandum of agreement recorded on 15th September 1904, and registered 28th July 1905, for 16s. 6d. of weekly compensation. Nothing for the time could have prevented him charging upon an extract of that registered recorded memorandum as upon an extract decreet. If the company desired to prevent him so doing, it was open to them to present to the sheriff-clerk a memorandum of the agreement to vary, but until they did so no judicial cognisance could be taken of the variation. But on the other hand, Davidson, though he might have charged upon the recorded and registered memorandum of agreement for the full 16s. 6d., could not at his own hand transform that memorandum into a substitute fora memorandum of variation if he wished to charge for the agreed-on reduced amount any more than he could have done so if he had wished to charge for an agreed-on increased amount.

In my opinion, therefore, the charge is inept, as proceeding without competent warrant, and falls to be suspended as craved.”

Davidson reclaimed, and argued — The charge was for less than the recorded agreement would have authorised. That could not invalidate it. The charger could restrict the amount as he pleased. A pluris petitio only invalidated a charge quoad excessum— Davidson v. Dunbar, May 31, 1821, 1 S. 43; Dick v. Murison, November 13, 1841, 8 D. 1; Wilson v. Stronach, January 9, 1862, 24 D. 271. There was, again, nothing wrong in the form of charge, for there was no statutory form under the Workmen's Compensation Act. The warrant for the charge was also good. It was the recorded agreement which by the statute was enforceable in like manner as a recorded decree-arbitral. Such recorded agreement remained of force till superseded by another recorded agreement or a decree of the Sheriff. The complainers should have recorded the subsequent agreement, or if they were dissatisfied with its terms, should have gone to the Sheriff and got the memorandum modified, as provided by section 12 of the First Schedule— Steel v. Oakbank Oil Company, December 16, 1902, 5 F. 244, 40 S.L.R. 205; Pumpherston Oil Company, Limited v. Cavaney, June 23, 1903, 5 F. 963, 40 S.L.R. 724. Reference was also made to Binning v. Easton & Sons, January 18, 1906, 8 F. 407, 43 S.L.R. 312; and to Lochgelly Iron and Coal Company, Limited v. Sinclair, October 23, 1906, 44 S.L.R. 2.

Argued for the respondents—The Lord Ordinary was right. The recorded agreement being superseded was dead. The employers had no interest to record the subsequent agreement. An agreement to pay compensation, whether recorded or not, was terminated ipso facto by a subsequent agreement. Davidson was personally barred from suing on the recorded agreement. Section 8 of the Second Schedule laid down specifically how a workman was to proceed. The parties here were not in the region of ordinary decrees, but under the special and highly technical rules of the Act. To hold that registered memoranda after being superseded by verbal agreements could still be enforced would be to lay a heavy burden on large employers like the Fife Coal Company, who had about 5000 of these applications yearly.