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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Carter v. John Lang & Sons [1908] ScotLR 938 (17 July 1908)
URL: http://www.bailii.org/scot/cases/ScotCS/1908/45SLR0938.html
Cite as: [1908] ScotLR 938, [1908] SLR 938
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SCOTTISH_SLR_Court_of_Session
Page: 938↓
Court of Session Inner House First Division.
[Sheriff Court at Paisley.
v.
Facts:
The question whether the period during which a workman has been employed is sufficiently long to enable his “average weekly earnings” to be calculated for the purposes of the Workmen's Compensation Act 1906 is a question of fact depending on the nature of the employment, and proper for the arbiter to decide. Where the arbiter is of opinion that it is so, it remains for him to take the number of complete working weeks such as are customary in the trade or employment during which the workman has been employed, and divide therewith the amount of wages earned during such weeks, and if owing, for example, to trade holidays it would be impossible for a workman to have employment in such trade for fifty-two weeks in the year, to deduct from the average wage thus obtained a percentage corresponding to the percentage of weeks employment could not be obtained.
A workman having been incapacitated was entitled to compensation under the Workmen's Compensation Act 1906. At the date of the accident thirteen weeks had expired since he had entered the employment, but of that period for one week he had earned nothing, and for a second very little, owing to illness, and again for one week he had earned nothing, and for a second very little, owing to the annual trade holidays. The arbiter found that the period during which there had been employment was not too short to enable him to compute the “average weekly earnings” of the workman, and that the proper mode for so doing was to divide the total amount of wages by thirteen. Held, on a stated case, that
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the arbiter had erred on principle, not thirteen but nine weeks being the period to be considered, and remitted to him to proceed. Bailey v. G. H. Kenworthy, Limited, [1908] 1 KB 441, commented on.
The Workmen's Compensation Act 1906, Sched. I, enacts—Section 1—“The amount of compensation under this Act shall be—… ( b) Where total or partial incapacity for work results from the injury, a weekly payment during the incapacity not exceeding fifty per cent. of his average weekly earnings during the previous 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, such weekly payment not to exceed one pound.…”
Section 2—“For the purposes of the provisions of this schedule relating to ‘earnings’ and ‘average weekly earnings’ of a workman the following rules shall be observed:—( a) Average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the workman was being remunerated: Provided that where by reason of the shortness of the time during which the workman has been in the employment of his employer, or the casual nature of the employment, or the terms of the employment, it is impracticable at the date of the accident to compute the rate of remuneration, regard may be had to the average weekly amount which during the twelve months previous to the accident was being earned by a person in the same grade employed at the same work by the same employer, or if there is no person so employed by a person in the same grade employed in the same class of employment and in the same district … ( c) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the workman was employed at the time of the accident, uninterrupted by absence from work due to illness or any other unavoidable cause.”
This was a case stated on appeal from findings of the Sheriff-Substitute at Paisley ( Lyell) acting as arbitrator in an arbitration under the Workmen's Compensation Act 1906 between John Carter, labourer, Johnstone (appellant), and John Lang & Sons, engineers, Johnstone (respondents).
The case stated—“On 8th August 1907 the appellant, who was a workman in the employment of the respondents, sustained personal injury by accident arising out of and in the course of his employment, whereby he was and is incapacitated. He had been in the said employment and in the same grade, and the relationship of master and servant had existed between the parties from Wednesday, May 8th, 1907, till Thursday 8th August, the day of the accident. The trade week in the works of the respondents runs from Wednesday till the following Tuesday, and the period of his employment had-thus embraced thirteen weeks and two days, inclusive of the day of the accident. During that time there had been certain short periods in which the pursuer had earned no wages owing to his absence on account of (1) illness, and (2) Johnstone general holidays. As thus, for the week ending June 11th 1907 the appellant had earned nothing on account of being off work through illness; for the week ending July 2nd he had earned only 15s. 11d., being off work for part of the time through the same cause; for the week ending July 16th he had earned nothing, and for the following week ending July 23rd he had earned only 3s. 8d. on account of the occurrence of Johnstone general holidays.
“I held that the period of the pursuer's employment with the defenders was from 8th May to 8th August 1907, that the said period of employment was continuous and uninterrupted by the necessary absences above detailed, that the said period consisted of thirteen weeks and two days, and that it was practicable, at the date of the accident to the appellant, to compute his rate of remuneration. I found further that the proper method of computing the appellant's weekly earnings during that period, in the manner best calculated to give the rate per week at which he was being remunerated, was to discard the amount earned during the two days of the week when the accident occurred, and to divide the total of the rest of the earnings by the number of weeks in the period of employment, viz., thirteen, and that the compensation to be awarded should be 50 per cent. of the sum so arrived at.”
The questions of law for the opinion of the Court were—“1. Whether the said period of employment was so short as to make it impracticable at the date of the accident to compute the rate of the appellant's remuneration? 2. Whether the said period of employment should have been regarded as continuous and uninterrupted by the said short periods of absence due to illness and the occurrence of Johnstone general holidays? or 3. Whether the times of absence from the said unavoidable causes should have been, in the first place, discounted in reckoning the said period of employment, before the arbiter proceeded to compute the average weekly earnings of the appellant?”
On the first question no argument was submitted by either side.
Argued for the appellant—The proper method of computing the average weekly earnings was to divide the wages actually earned by the number of weeks actually worked— i.e., the weeks in which no work was done should be discarded, and when only part of a week was worked, the divisor representing that portion should be the corresponding fraction— Bailey v. G. H. Kenworthy, Limited, [1908] 1 KB 441, especially Cozens-Hardy, M.R., at p. 454. “Uninterrupted by absence from work” meant excluding absence from work. The Sheriff had erred by dividing by the number of weeks he might have worked. The Court should answer the third question in the affirmative, and find it unnecessary to answer the second.
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Argued for the respondents—The total sum actually earned, not that which conceivably might have been earned, should be divided by the number of weeks in which the appellant was in the respondents' employment. The appellant's method of striking an average, which disregarded non-working periods, if applied in the case of death and where the workman had been less than three years in the employment, would, being multiplied by 156, give more than full compensation. Paragraph ( c) had done its work by saying that the period of continuous employment was here thirteen weeks and not a fortnight. It fixed the period of employment, and was not relevant to striking the average. Reference was also made in the course of the argument to Jones v. The Ocean Coal Company, Limited, [1899] 2 QB 124, and Grewar v. The Caledonian Railway Company, June 19, 1902, 4 F. 895, 39 S.L.R. 687, as illustrating what the 1906 Act was meant to remedy.
At advising—
The facts upon which the case arises are these. The appellant was taken into the service of the respondents on Wednesday, 8th May 1907, and he worked till Thursday, 8th August 1907, upon which day the accident happened. The history of his employment, so far as his wages were concerned, is this. The period within the dates which I have specified extends to thirteen weeks and two days. Discarding the two days, he worked nine out of these weeks at what may be called full wages. For the week ending June 11th he earned nothing on account of being off work through illness; for the week ending July 2nd he earned only 15s. 11d., from the same cause, being partially off through illness; for the week ending July 16th he earned nothing; and for the week ending July 23rd he earned only 3s. 8d., the reason for that shortage being that there intervened the period of the Johnstone general holidays. What the learned Sheriff-Substitute, as arbitrator, did is set forth in the case. He said—“I found that the proper method of computing the appellant's average weekly earnings during that period, in the manner best calculated to give the rate per week at which he was being remunerated, was to discard the amount earned during the two days of the week when the accident occurred, and to divide the total of the rest of the earnings by the number of weeks in the period of employment—viz., thirteen—and that the compensation to be awarded should be 50 per cent. of the sum so arrived at.” The question is whether he was right in that determination. The question of law that the learned Sheriff has put to your Lordships is—Whether the said period of employment was so short as to make it impracticable at the date of the accident to compute the rate of the appellant's remuneration? and, secondly, whether his method of computation was right?
We were referred to the only case that has been decided upon this part of the recent Act, namely, four cases decided together of Perry, Cain, Bailey, and Gough, decided by the Court of Appeal in England— Perry v. Wright, Cain v. Frederick Leyland & Company (1900), Limited, Bailey v. G. H. Kenworthy, Limited, Gough v. Crawshay Brothers, Cyfartha, Limited, [1908] 1 KB 441. I have exceedingly carefully considered what was said by the learned Judges in that case. We are, of course, not bound to follow them. On the other hand, their opinions are entitled to the greatest respect, and there will doubtless bs sooner or later an occasion when both these opinions and any opinions which your Lordships may deliver to-day will be subjected to the review of the House of Lords. Therefore I am very anxious that we should, if possible, lay down, once for all, what we consider to be general rules under the statute.
Your Lordships are well aware that this question really arises upon a new section which makes its appearance in the Workmen's Compensation Act 1906, and which was not in the Workmen's Compensation Act 1897. But the sections which are before and after are precisely the same in the two Acts. The point arises under the schedule, and the schedule runs in both cases thus—Schedule 1, section 1—“Scale and Conditions of Compensation—The amount of compensation under this Act shall be ( a) where death results from the injury, (i) if the workman leaves any dependants wholly dependent upon his earnings, a sum equal to his earnings in the employment of the same employer during the three years next preceding the injury, or the sum of £150, whichever of these sums is the larger, but not exceeding in any case £300.” Then there is the proviso that if he has not been in the same employment for three years, the amount of his earnings shall be deemed to be 156 times his average weekly earnings during the period of his actual employment under the said employer. That is in the case of death. Then the Act proceeds—“( b) Where total or partial incapacity results from the injury, a weekly payment during the incapacity not exceeding 50 per cent. of his average weekly earnings during the previous twelve months, if he has been so long employed.” That is the first case. “But if not, then for any less period during which he has been in the employment of the same employer, such weekly payment not to exceed £1.” That is the second.
So far the words I have read may be taken from either Act, and there is no question that under the decisions under the earlier Act there were occasionally cases of hardship, which I think the section of this Act undoubtedly set itself to remedy. The cases of hardship arose in this way. If there had been employment for less than twelve months, and the scale of the average weekly wage had to be taken from the experience gained during a period shorter
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Accordingly in the Act of 1906 there is a new section which gives certain directions upon this matter, and that is the 2nd section of the First Schedule, which says this—“For the purposes of the provisions of this schedule relating to ‘earnings’ and ‘average weekly earnings’ of a workman, the following rules shall be observed—( a) average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the workman was being remunerated.” Then comes a long proviso to this effect—“Provided that where by reason of the shortness of the time during which the workman has been in the employment of his employer, or the casual nature of the employment, or the terms of the employment, it is impracticable at the date of the accident to compute the rate of remuneration, regard may be had to the average weekly amount which, during the twelve months previous to the accident, was being earned by a person in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person in the same grade employed in the same class of employment, and in the same district…” Then, after another sub-section which I may leave out, comes this sub-section—“( c) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the workman was employed at the time of the accident, uninterrupted by absence from work due to illness or any other unavoidable cause.”
The first observation I have to make is that I entirely agree with the Master of the Rolls and Lord Justice Moulton, [1908] 1 K.B., pp. 451 and 456, in the remark which they both make that the leading proposition in these somewhat complicated sub-sections is the one at the beginning—that the average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the workman was being remunerated. In other words, you are so far as possible to cut yourself loose from what I may call the circumstances of the moment, and to take a broad view of the matter in order to get at truly what the workman was in the habit of earning week by week. Even without going any further, that would seem to me to displace completely what the Sheriff-Substitute has done in this case, because in a period of thirteen weeks where the man was ill for a fortnight, and for another fortnight made almost nothing in respect of the trades holidays, the Sheriff-Substitute has taken the total earnings and divided by the number of weeks. That, of course, when you come to put it in other words, really means this—that in regard to the work the man had during a year or two years you are to assume that out of every thirteen weeks he is always two weeks ill, and he has always got two weeks of trades holidays. Both these assumptions are obviously against the fact. Therefore I think it is perfectly clear that the Sheriff-Substitute's method sins against the first and leading canon which is laid down in the sub-section I have read.
The real difficulty arises on how you are to calculate the average weekly wage—I mean what sort of process you are to go through. This difficulty is not lightened by the last section which I read about the same employment being taken to mean employment uninterrupted by absence from work due to illness or any other unavoidable cause. But following the example of the English Judges, and keeping myself for the moment to general remarks, as I have already said I agree with them so far. But there is something in the rubric of these cases, and something in some of the expressions which were used by these learned Judges, with which I cannot altogether agree. I do not agree with the rubric; I do not say that I disagree with the expressions, because I really do not think that they mean by these expressions all that is stated in the rubric. The portion of the rubric to which I refer is this; it is put as the result of these cases—“In an ordinary case the average weekly earnings are to be calculated by dividing the total earnings of the workman during the relevant period, not by the number of weeks in that period, but by the number of weeks actually worked within that period; days in which no work is done and no wages are earned are to be disregarded.” That last proposition seems to me to be much too general. The particular case which brought out this portion of the rubric—one of the four cases—was the case of Bailey. The facts in Bailey's case were these. The appellant was a spinner employed in a cotton mill. At the time of the accident he had been in the employment of his masters for more than twelve months. He was paid by the piece, not by a weekly wage, and his actual receipts during the twelve months amounted to the sum of £83, 2s. 1d. In the course of the year there had been several times that he did not actually work—once by reason of a canal having burst its bank and stopped the whole works; once by reason of accidents in the works to boilers and machinery; and twice by holidays—one being what is called “Wakes Week,” when all the mills at Ashton were closed—which corresponds with the Johnstone trades holidays in this case—and one being the usual Bank holidays, when the works were not open. The problem was to reduce piece work payments to an average weekly wage. What the County Court Judge did was simply to take this £83, 2s. 1d. and divide it by 52. The Court of Appeal held that was wrong, but I do not think the three Judges came to quite the same conclusion as to what was right. So far as I am concerned, I
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Now I come to the difficult part of the question in regard to this sub-section ( c), which says that employment by the same employer shall be taken to mean employment by the same employer in the grade in which the workman was employed at the time of the accident, uninterrupted by absence from work due to illness “or any other unavoidable cause.” The English Court of Appeal have considered that directly in the case of Bailey, with reference to a case of illness. Lord Justice Moulton (p. 466) held that the temporary absences due to holidays and accidents to machinery were neither here nor there as far as this sub-section was concerned, because he held that “other unavoidable causes” must be ejusdem generis with illness. What I think he means by ejusdem generis with illness must be ejusdem generis not in the strictest sense of the word, such as a broken bone, which is not an illness but something like it. Unavoidable causes referred to in section two ( c) must be causes personal to the workman, that is to say, anything which has to do, not with the workman but with the work, such as those stoppages referred to in the case of Bailey as not touched by this clause. I agree with another observation that was made in that case, namely, that you cannot argue as to the true meaning of what you are to do in a shorter period from what you find done in a longer period of three years (p. 460). That disposes of a somewhat ingenious but rather too fine argument of the learned Dean in this case.
I think the view of the Legislature in sub-section ( c) was simple enough, and it applies not only to the three-year period but also to the one-year period. Where you have got a workman with one year's experience, then you have got a long enough period, and you may take it that the length of the period will give a fair average for the person concerned. The difficulty comes in where you have not got a long period, but where you have to find out the weekly average for the whole of the man's working life by a short period of work. It is in regard to that that this sub-section comes in. The meaning of it seems to me to be this. If you have not got twelve months' experience which will give you a law for that particular man, and if you find that the period is so short during which he has been working that you have to go to somebody else, not him, for an illustration, then you must take somebody else's history as that history is uninterrupted by illness or absence from any other unavoidable cause. In other words, you are not to assume that because A has been ill for so many weeks, and consequently has reduced the practical amount of his earnings, you are not to assume that B if he had been working would have been ill in the same way. No doubt that has the effect of doing away
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That is all I have to say, except one thing about the question of the shortness of time making it impracticable for the Sheriff to calculate an average. There are very good instances in the three English cases other than the case of Bailey, where the question was raised of whether it was impracticable from shortness of time. Although we are asked here to answer the question as one of law, I think the question as to whether the time was so short as to make it impracticable to calculate an average is a question of fact. Accordingly, if the Sheriff acting as arbiter had come to the conclusion that the time which this particular workman worked was either so short as to make it impracticable, or was long enough to make it practicable, I should be very slow to disturb his judgment. I cannot help disturbing the Sheriff's judgment here, because he has, for the reasons I have already stated, gone altogether wrong upon the principle; and accordingly his judgment, such as it is, about the shortness of time was a judgment based upon the assumption that he had thirteen weeks to go on, whereas as a matter of fact he only had nine. But as little am I inclined to lay down as a fact in this case that it was impracticable to reckon an average on account of the shortness of time, because I think that also depends upon considerations which are not before me, but which could be before the Sheriff. Supposing there is a trade in which there is an absolutely steady wage, as, for example, the case of an ordinary man employed in a shop at so many shillings weekly during the whole year, and supposing that the man had only been in the particular service two or three weeks, yet inasmuch as it was an engagement by the week, which would have lasted on to the end of the year, I think these two or three weeks or even one week would be quite sufficient to show what was the average weekly wage. But, on the other hand, where you have classes of employment which vary very much in different times, in which the wages per week would be very different at one period of the year from those of another, and in which employment is very much more abundant at one period of the year than at another, then a very much larger number of weeks might be required in order to calculate a proper average. Lord Justice Moulton also notices this and gives the illustrations of a ferryman and a charwoman (p. 459).
Therefore I do not think that the question of the shortness of time being practicable or impracticable to reckon an average can be settled by a mere question of figures. It must be settled in each case by a consideration of the whole circumstances of the employment. I think that is a matter which the Sheriff has got to look into and determine. Therefore I am not for answering the question of the Sheriff, but am for telling him that with such help as he may get from the views we are now laying down he must determine that matter for himself. If he holds that the experience he has got of this man's nine week's work is sufficient, that the work is always very much the same in this employment, and that nine weeks at this time of the year will enable him to have the proper factors for arriving at an average, then I think he must proceed with his sum as Lord Justice Moulton did, that is to say, he must divide what the man earned by the number of weeks in which he earned it, and then go on to consider whether the man would have worked fifty-two full weeks in the year. If there were holidays he must make a deduction. Assuming that he has holidays extending over two weeks he must deduct a twenty-sixth from the average sum obtained by dividing the total amount earned by the number of weeks during which the man was working. Without answering the question as put, we should, I think, remit the case to the Sheriff to inquire for himself whether he considers in the whole circumstances that the period was or was not too short to allow him to judge from the man's own wages what a proper average wage would be. If he thinks it is long enough he could then proceed arithmetically to determine the average. If he thinks it is not long enough he must take somebody in the same work and in the same grade if he can find him. If there is no such person, then he must take somebody in the same grade in some other work in the neighbourhood, keeping steadily in view the first sentence of subsection ( a) to find what that man in the course of the year would earn fairly one week with another, and not pinning his attention particularly to the week or the few weeks preceding the time at which the accident actually happened.
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The Court found it unnecessary to answer the questions of law as put in the case, recalled the determination of the Sheriff-Substitute as arbitrator, and remitted to him to proceed.
Counsel for the Appellant— Munro— J. A. Christie. St Clair Swanson & Manson, W.S.
Counse for the Respondents— The Dean of Faculty (Campbell, K.C.)— D. Anderson. Agents— Cadell & Wilson, W.S.