Scottish Court of Session Decisions

Sarah Cameron or O'Neill brought an arbitration under the Workmen's Compensation Act 1897 in the Sheriff Court at Glasgow against Andrew Motherwell, in which the Sheriff was asked to ordain Motherwell to pay to O'Neill the sum of nine shillings and eightpence half-penny weekly, beginning the first weekly payment as at 25th April 1904, until the further order of Court.

The Sheriff [ Fyfe] dismissed the application, and at the request of O'Neill stated a case which contained the following statement of facts—“1. That respondent is a grain merchant, carrying on business in Glasgow.

2. That his business premises, fronting Surrey Street, Cumberland Street, and Main Street, Glasgow, consist of ( a) grain mill and other buildings, entering from Surrey Street; and ( b) office quarters, entering from Cumberland Street.

3. That these two parts of the premises are not under one roof, but are separate buildings situated at some distance apart.

4. That an overhead railway runs between these two sections of the premises, but access is possible from the one to the other by means of a pend which enters from Cumberland Street, passes under the office buildings, through an arch beneath the railway, and into a lane upon which the mills portion of the property abuts.

5. That, as the buildings were constructed, at 11th April 1904, the only access to the office where appellant was employed as an office-cleaner was by a stair leading

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direct from Cumberland Street up to the office, and the only egress was by this same stair into Cumberland Street.

6. That machinery was employed in the mills fronting Surrey Street.

7. That the only mechanical appliance which was in the portion of the buildings where the office was situated was an electric motor, situated in the same part of the Cumberland Street building as the office, and behind the portion used as an office.

8. That this mechanical power was primarily provided and used for working a hoist, but it was also connected to a mixer, used for the purpose of mixing flour to make it self-raising, and so preparing it for the market for sale.

9. That in a portion of the Surrey Street building adjoining the grain mill (and entering from it) there is a bag-room where women are employed, on piece-work, to make and mend bags.

10. That for some time prior to April 1904 appellant had been in the employment of the respondent under two distinct engagements.

11. That one was that in the mornings from 6 till 9 she was engaged as an office-cleaner to keep in order the said office, entering from Cumberland Street as described.

12. That for this daily duty she received a fixed wage of 9s. per week.

13. That the other was that from 10 A.M. till 5 P.M. the appellant was at liberty to work, and was accustomed to work, in the bag-room of the mill entering from Surrey Street.

14. That for this work she was paid by piece-work, and her average weekly earnings amounted to 9s. 6d. per week.

15. That on the morning of 11th April 1904, whilst appellant was engaged in her office-cleaning duty within the said office entering from Cumberland Street, she fell off two chairs upon which she was standing to reach and dust some pictures.

16. That she broke her left arm.

17. That she was thereby incapacitated from following the occupation either of an office-cleaner or a bag-mender.

18. That she is now sufficiently recovered to be able to undertake the work of bag-mending, but that she is not yet able to undertake the duty of an office-cleaner.

19. That formal notice was not given to respondent of the accident, but he was at the time aware of it, and has not been prejudiced by the want of formal notice.

20. That appellant did not, within six months of the occurrence of the accident, make a claim for compensation.

21. That the respondent from the date of the accident until the end of September 1904, voluntarily made to the appellant an allowance of 10s. per week.

22. That appellant's daughter Catherine, aged 17, then and still residing in family with her mother, had been accustomed to assist her mother in her office-cleaning work.

23. That she was capable of undertaking this work alone, and upon her mother becoming incapacitated respondent continued this daughter as the office-cleaner at the same wage of 9s. per week, and she still continues to do this work.

24. That early in October 1904 respondent proposed to reduce the cash allowance to 5s. per week, whereupon appellant declined to accept anything less than 10s.

25. That the allowance was therefore altogether discontinued.

26. That the respondent's said premises constitute a factory within the meaning of the Workmen's Compensation Act 1897.

27. That respondent is the undertaker.

The Sheriff's finding-in-law was:—“I found in law that in respect the making of a claim within six months is under the statute a condition-precedent to proceedings for recovery of compensation, and that appellant had failed to comply with this statutory requisite, her application for compensation is incompetent.

I therefore dismissed the application and assoilzied the respondent, but in the circumstances found no expenses due to or by either party.”

The question of law for the opinion of the Court was—“Is the application competent?”

Argued for the appellant—(1) The respondent was barred personali exceptione from founding upon the absence of a claim within the statutory period. The payment during six months of the maximum compensation obtainable under the Act was an admission of the appellant's right to compensation under the Act, and a waiver of the necessity for a formal claim— Freeman v. Cooke (1848), 2 Exch. 654; M'Kenzie v. British Linen Co., February 11, 1881, 8 R. (H.L.) 8, 18 S.L.R. 333. The provisions of section 2 (1) were not absolutely imperative— Wright v. John Bagnall & Sons, Limited [1900], 2 Q.B. 240—and generally one of the main objects of the Act was to avoid unnecessary technicality. (2) But in any event the appellant's refusal to take less than ten shillings when five were offered to her was in itself a claim. No particular form for a claim was required — Powell v. Main Colliery Company [1900], A.C. 366.

Argued for the respondent—The provisions of section 2 (1) were imperative, and this at anyrate was not a case in which the Court would seek to relax them. The respondent could not be barred in any way by the payments he had made, because the payments had not been made or received as payments under the Act. The appellant's contention that she had in fact made a claim was negatived by the Sheriff's finding in fact that she had made no claim, and was otherwise unsound, because a claim for compensation under the Act must be a claim for a definite sum within the amount allowed by the Act, whereas the appellant had demanded more— Kilpatrick v. Wemyss Coal Company, Limited, 1907, S.C. 320, 44 S.L.R. 255.