Scottish Court of Session Decisions

But the point which has been argued was this, that a further deduction was made by the learned Sheriff-Substitute in respect of sums which the deceased man paid to his employers for explosives. The work that he was engaged on—that of mining—was so to speak paid for as piecework—that is to say, that he got so much according to the amount of mineral that he turned out, and in order to turn out the mineral apparently he needed explosives, and the practice of the mine was that he should buy his explosives at the mine. Accordingly it was argued—and the learned Sheriff-Substitute gave effect to it—that that sum ought really to come off the earnings of the deceased because it did not truly represent wages.

Now certain cases were quoted to us—two I think in the House of Lords in 1903 and 1904—where expenditure of this sort was also dealt with, and I am of opinion that those cases absolutely cover this case—that is to say, if there has been no change in the law since these cases were decided. Under the old Act I think it would be perfectly impossible to say that this case was not ruled by them. Accordingly I think the sole question left is whether there has been any change made by the recent Act. Under section 2, subsection ( d), of the first schedule there is this provision—“… [ quotes, v. sup.] …” and I think the only question therefore is whether this expenditure or payment falls under that rule. I am of opinion that it does not. It might have been arranged otherwise, but in the circumstances as disclosed in the findings of the Sheriff-Substitute I do not think you can call this a sum paid to cover any special expenses, because such a sum I think obviously means a regular sum paid as part of the wage—that is to say, for example, such a payment as is common enough in domestic service where a man gets so much wages and then a certain sum to provide himself with a suit of clothes. That I think is the class of sum contemplated by this sub-section. But here there was no special sum named. The man was left to be his own judge as to whether he would use explosives or how much he would have. That was his own affair, and it was also his own affair whether he got them from the employer or elsewhere, subject no doubt to a veto on the part of the employer against his using an improper explosive in the mine, but there is no finding that he was thirled where he was to get the explosives. I think this case is clearly within the judgments, and whatever one might have said had the whole question been open I think these judgments bind us here. I think therefore that question 2 ought to be answered in the negative, and that it ought to be remitted to the Sheriff-Substitute to re-fix the sum of £178, 15s. upon the assumption that that sum of £4, Os. 9d. does not fall to be deducted from the wages.

Lord Kinnear—I agree. I think the main question is ruled by judgments in the House of Lords which are binding upon us, and that the only question is whether the provision introduced for the first time in the Act of 1906 makes any difference. Now that provision is that where the employer has been accustomed to pay to the workman a sum to cover any special expenses, the sum so paid is not to be reckoned as part of the earnings. That seems to me to mean a definite sum paid by the employer to the workman in order to cover a special expenditure; and upon the statement of facts as given us by the Sheriff I see no ground for holding that any such definite sum was paid by the employer to the workman here for any special purpose. The wages are to be put in at the full sum for which the man was engaged to work, but then if in addition to the sum for which he was engaged to work the employer pays him a certain further sum to meet a special expenditure, that is not to be put in. All that is said here is that in the course of his employment the man purchased a certain amount of explosives and paid a certain price for them. That does not appear to me to affect in any way the full sum for which he was engaged to work, for, so far as the case goes—and I do not know what the facts beyond those stated may be—the man is left to judge for himself what explosives he may buy and what he may pay for them; but when he does make his purchase, the price of them becomes due and is deducted from his wages. I agree with your Lordship that this is a totally different matter from what is dealt with in the excepting provision.

Lord Johnston—The factor in ascertaining the compensation to be paid to a workman or his representatives in respect of his injury or death by accident in the course of his employment, under the Workmen's Compensation Act 1906, Schedule I, section 1, is his “earnings” in the employment of the employer in whose service he is at the time of the accident.

In the present case it was explained to the Court that the employers do not supply explosives to their miners. If they did so they would pay a sum per ton so much less for the coal raised. They do not supply explosives, because then the miners would most probably be reckless in their use. Further, that they do not allow the miners to bring their own explosives, because it is necessary that the employers should have a control over the quality. And the Sheriff-Substitute, in arriving at the earnings of the deceased for the purpose of the statute, has deducted from the gross sum payable to him during the period of his employment the cost of explosives charged against him. The competency of his doing so is questioned.

Had I to determine the point raised irrespective of authority, I should have concurred with the learned Sheriff-Substitute, for I do not think that a man can be said to earn more than he carries away for his own behoof as the result of his work, and I think

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