Scottish Court of Session Decisions

In an arbitration under the Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), between Merry & Cuninghame, Limited and Robert Black, the Sheriff-Substitute at Hamilton ( Thomson) awarded compensation, and at the request of Merry & Cuninghame, Limited, stated a case for appeal.

The following facts were found proved:—“(1) That so far back as 15th July 1898 the respondent in the course of his employment as a waggon shifter met with an accident which necessitated the amputation of his right hand at the wrist; (2) that he was paid compensation for eighteen months, and thereafter resumed work with defenders in the capacity of haulage engineman; (3) that his average weekly earnings before the accident were 18s. 6d., but that for some time prior to the proof they had been

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only 16s. 7d. a-week owing to a general fall in wages.”

On these facts the Sheriff-Substitute awarded compensation at the rate of 1s. 11d. per week.

The question for the opinion of the Court was—“Whether it was competent … under the statute to award compensation?”

Argued for the appellants—The Sheriff-Substitute had found that the diminution in the respondent's wages was due to a general fall in wages. From that it followed that he was earning the same wages now as if he had never met with the accident. The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37), Schedule 1 (1) ( b), and (2) clearly contemplated an award of compensation only when the diminution in the earnings of the workman was brought about by the accident. Jamieson v. Fife Coal Company, June 20, 1903, 5 F. 958, 40 S.L.R. 704, so far as in point, was in the appellant's favour. In that case it was decided that the rate of compensation for total incapacity could not be reduced on account of a fall in wages during the incapacity. Similarly, compensation for partial incapacity could not be increased, or, as proposed here, awarded on account of a fall in wages.

Argued for the respondent—The statement of facts, though perhaps not so full as it might have been, contained sufficient material on which to found an affirmative answer to the question stated. Impaired capacity resulting in a change of occupation and diminution of earnings were proved, and that was sufficient to justify an award of compensation. Diminution of earning capacity by reason of the injury was the sole test of right to compensation— Freeland v. Macfarlane, Lang, & Company, March 20, 1900, 2 F. 832, 37 S.L.R. 599. In any event, the Court could not find for the appellants on the facts stated. It could not be inferred that a general fall in wages was the sole cause of the diminution in the respondent's earnings. It might be that the employment of the respondent before the accident was not subject to the same fluctuation as the employment he had to accept afterwards. The workman had claimed arrears from 10th January 1900, and that suggested that the decrease in his earnings was not due to the general fall in wages, which was much more recent.