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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cadenhead v. Ailsa Shipbuilding Co., Ltd [1910] ScotLR 784 (16 July 1910)
URL: http://www.bailii.org/scot/cases/ScotCS/1910/47SLR0784.html
Cite as: [1910] ScotLR 784, [1910] SLR 784
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SCOTTISH_SLR_Court_of_Session
Page: 784↓
Court of Session Inner House Second Division.
[Sheriff Court at Ayr.
v.
Facts:
A workman having been injured, his employers agreed to pay him compensation under the Workmen's Compensation Act 1897. A memorandum of the agreement was duly recorded. The employers afterwards applied to the Sheriff as arbiter to have the weekly payments reviewed in respect the workman had recovered. The Sheriff after proof found that the incapacity had ceased, and ended the compensation. The workman thereafter made application to the Sheriff for compensation under the Act, on the ground that supervening incapacity had arisen, caused through the injury sustained by him.
Held that as the Sheriff had already found that incapacity had ceased and had terminated the weekly payments, the application for an award of compensation of new was incompetent.
The Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37), enacts—First Schedule, sec. (12)—“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.”
James Cadenhead, caulker, 20 West Portland Street, Troon, appellant, and the Ailsa Shipbuilding Company, Limited, respondents, brought this Stated Case under the Workmen's Compensation Act 1897 from the Sheriff Court at Ayr.
The Case, stated by the Sheriff-Substitute ( Shaibp), set forth the following facts:— “In this arbitration the appellant, who on 8th September 1906 sustained personal injury by accident while in the respondents' employment, presented an application under section 1, sub-section 3, of the said Workmen's Compensation Act 1897, for compensation, in terms of said Act, from the respondents at the rate of 18s. 4d. per week as from and after 3rd September 1908. The personal injury to the appellant before referred to was a wound on the anterior surface of his right forearm, which was struck by a piece of iron or steel rivet The injury incapacitated the appellant from
Page: 785↓
following his occupation of a caulker, and an agreement was entered into between him and the respondents by which they agreed to pay him compensation under the said Act at the rate of 18s. 4d. per week during his incapacity for work, or until the weekly payments should be ended, diminished, redeemed, or suspended in accordance with the provisions of the Act. A memorandum of said agreement, dated 21st February 1908, was recorded by the Sheriff-Clerk of Ayrshire in the Special Register kept by him for the purpose at Ayr on 4th March 1908. On 31st March 1908 the respondents presented a minute stating that appellant's incapacity for work as a caulker in consequence of said accident had ceased, and craved, in terms of section 12 of the First Schedule to said Act, a review of the foresaid weekly payments, and on such review that the said payments should be ended or diminished. After hearing proof in this last-mentioned application, and obtaining a report from a medical referee in terms of section 13 of the Second Schedule to said Act, on 7th July 1908, I, as arbiter, found that appellant was no longer incapacitated from pursuing his occupation as a caulker, and ended the said weekly payments. My award was registered by the sheriff-clerk in said Special Register on 17th July 1908. On these admitted facts I, on 21st April 1910, dismissed the appellant's said application for compensation as incompetent.” The question of law for the opinion of the Court was—“Did my said award, dated 7th July 1908, finding that appellant's incapacity for his work as a caulker in consequence of said accident had then ceased, and ending the said weekly payments of compensation, render the appellant's said application for an award of compensation as from 3rd September 1908 incompetent, with the result that the appellant was prevented from leading evidence to show that supervening incapacity had arisen in consequence of the personal injury sustained by him as aforesaid?”
Argued for the appellant—This accident had been dealt with by agreement between the parties, and the workman was not thereby precluded from having his claim for compensation dealt with in an arbitration — Strannigan v. Baird & Company, Limited, June 7, 1904, 6 F. 784, 41 S.L.R. 609. The agreement to pay compensation had been implemented and terminated. These were the first proceedings to make a claim under the Act. There being no subsisting agreement between the parties, arbitration proceedings were competent — Dempster v. Baird & Company, Limited, 1908 S.C. 722, 45 S.L.R. 432. All the arbiter could do was to end the award if a man had recovered. If a workman a day after compensation was ended took ill again as the result of the same accident, he was entitled to apply again. The First Schedule of the Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37) provided, sec. 1 ( b), that a workman should be entitled to a weekly payment “during the incapacity.” If the incapacity returned, the workman was therefore entitled to get compensation again. Calder & Sons v. Tigue, Dec. 6, 1905, 8 F. 179, 43 S.L.R. 129, and Coakley v. Addie & Sons, Limited, 1909 S.C. 545, 46 S.L.R. 408, were also referred to.
Counsel for the respondents were not called upon.
Now the Act does not seem to me to contemplate anything more than that. If proceedings are brought before the Sheriff he must deal with them if there is still any incapacity; but if he comes to be satisfied that there is no incapacity he must end the compensation. It is now suggested that after that has been done, i.e., after the compensation has been declared ended under the powers given to the Sheriff by the Act, the workman is entitled to come forward and raise a new case altogether, and on the averment that incapacity has supervened institute proceedings to have compensation of new awarded. If that were the law you might have half-a-dozen cases at long intervals of years, and you might require to trace the man's history during these years to see whether the incapacity from which he was suffering had anything to do with the accident, or whether he was suffering from some other accident with respect to which he could have no claim because it did not occur in the service of his former employers.
It is quite plain that the Act never contemplated anything of that kind. There may be a certain amount of hardship where a man has been held to have recovered absolutely and where something subsequently supervenes which shows that he has not really recovered; and it was to meet the case where there was a suggestion of some such possibility that the device of a nominal payment of a penny a-week was adopted in order not to end the compensation. That, however, was held,
Page: 786↓
That being so, a party in a case of this kind is very much in the same position as a person who sustains an accident through the fault of another. He is entitled to have ascertained the amount of compensation which is due to. him at the time of the trial. He is not entitled to come back after a long lapse of time and say—“I was only able to lay before the jury certain facts, and these facts were dealt with by the jury; the jury were right so far on the evidence which was placed before them, but I am prepared to prove before another jury that I am still suffering from the accident and am entitled to additional compensation.” The fact that the original award of damages is final may be a hardship to one or other of the parties, but it is a hardship which cannot be avoided; otherwise there would be no end to such claims. I have no doubt or hesitation in saying that there is nothing in this Act which would justify the raising of a new case by a workman in respect of an accident after his injuries have once been inquired into and the result of them ascertained, and after the Sheriff has held that the injured person is completely recovered, and that compensation must be ended. That in my opinion is an end of the matter once and for all.
The Court answered the question of law in the affirmative.
Counsel for Appellant— A. Mackenzie Stuart. Agents— Lindsay, Cook, & Dickson, Solicitors. .
Counsel for Respondents— Murray, K.C.J. H. Henderson. Agents — Morton, Smart, Macdonald & Prosser, W.S.