Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), First Schedule, enacts—“(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.… (2) For the purpose of the provisions of this schedule relating to ‘earnings’ and ‘average weekly earnings’ of a workman the following rules shall be observed—( 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 stated case on appeal in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) between Babcock & Wilcox, Limited ( appellants), and William Young ( respondent) against a decision of the Sheriff-Substitute ( Lyell) at Paisley acting as arbitrator.

The Case stated—“This is an application to review and end weekly payments made by the appellants to the respondent by virtue of an agreement under the Workmen's Compensation Act 1906. Proof was led before me and the medical referee — sitting as assessor in terms of paragraph (5) of the Second Schedule of the statute — on 7th November 1910, and the following facts were proved:—

The respondent is by trade a boilermaker, and was for nineteen weeks prior to 1st February 1910 in the employment of the appellants. He did not, however, work as boilermaker for the whole of that period. For fifteen out of the nineteen weeks he worked as a labourer at a wage of 20s. 3d. per week. For the other four weeks, during which he worked as a boilermaker—which is a trade, and distinct from the work of a labourer—he was paid by piecework, and it was agreed that his average weekly earnings during the whole of the period of his employment were thus increased to 25s. On 1st February he was working as a labourer when he was accidentally injured by being struck on the middle finger of the left hand with a crowbar. He was off work for one week, when he returned and worked as a boilermaker from 8th to 14th February, when blood-poisoning set in, with the result that the finger is permanenty stiffened in such a position as to incapacitate him wholly from following his trade as a boilermaker, but not from doing the work of a labourer at 20s. a-week.

Page: 299↓

By virtue of a verbal agreement made between the parties, the appellants paid to the respondent compensation at the rate of 12s. 6d. weekly from 14th February 1910 to 4th June 1910.

I held (1) that by reason of the said injury by accident the respondent has been since 4th June 1910 and remains partially incapacitated; (2) that his average weekly earnings during the whole period of his employment were 25s. I found him entitled to 12s. 6d. for the week from 1st to 7th February 1910, and in fixing 5s. a-week as the amount of compensation to be paid by the appellants to the respondent as from 4th June 1910 I awarded a sum not exceeding the difference between the average weekly earnings of the workman before the accident and the average weekly amount which he is now able to earn. In the special circumstances of this case I awarded the whole difference between these two sums.

On the 8th June 1910 the appellants offered the respondent work as a labourer at 20s. a-week, which work he refused.”

The question of law for the opinion of the Court was—“Was the Sheriff-Substitute right in computing the average weekly earnings of the respondent during the whole period of his employment with the appellants at 25s.? Or should he have refused to include the respondent's earnings as a boilermaker during four weeks of that period?”

Argued for the appellants—The Sheriff-Substitute had erred in considering the respondent's earnings as a boilermaker when he had been injured when acting as a labourer. These were different grades, and in changing from the one to the other he began a new employment. “Grade” had been defined as the workman's rank in the industrial hierarchy— Perry v. Wright, [1908] 1 KB 441. Whatever difficulty there might be in certain cases in defining grade there could be none here, because a labourer was clearly in a different grade from a boilermaker.

Argued for the respondent—The Sheriff-Substitute was right. In ascertaining the “average weekly earnings” of the workman for the purpose of fixing compensation, no part of his earnings under the employer could be excluded unless it was shown that they were due to a definite and permanent change of grade. Mere change was not enough. There must be some expectation of permanency— Price v. Marsden & Sons [1899], 1 K.B. 493. In the present case the Sheriff had found that the respondent was a boilermaker by trade, and his employment as a labourer was to be regarded as merely casual employment. There was nothing to show that he had definitely ceased to be employed as a boilermaker. In any event the question as to whether there had been a change of grade was one of fact— Perry v. Wright, cit. sup.