Scottish Court of Session Decisions

In an application under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) by the North British Railway Company, respondents, for review of the weekly payments made by them to Frederick Weir, labourer, Springburn, Glasgow, appellant, in terms of a memorandum of agreement recorded at Glasgow on 7th September 1911, in respect that the appellant's incapacity for work had ceased or become greatly lessened, the Sheriff-Substitute at Glasgow (A. S. D. Thomson), sitting as arbitrator, ended the compensation, and at the request of the appellant stated a case for appeal.

The Case stated, inter alia—“Said application was heard before me and proof was led on this date. At said diet of proof the appellant lodged in process a minute in the following terms—‘The claimant, without prejudice to his pleas that his incapacity is not in any way diminished, respectfully craves the Court, in the event of the Court finding in fact that he is able at present to perform his ordinary work, to find further in fact and law in respect said accident has involved patent and serious physical disability to the claimant, that he is entitled to a nominal award of compensation so as to preserve his right to apply to the Court for subsequent orders in respect of the injuries sustained by said accident, or otherwise to sist further procedure or continue the present application for review, and grant leave to either party to renew the application in the event of any change of circumstances occurring.’

The following facts were admitted or proved—(1) That the appellant, through an accident which occurred on 22nd June 1911, and which arose out of and in the course of his employment with the respondents, lost his right eye. (2) That by 20th November 1911, the date of the present application, he had recovered from the effects of the accident in so far as recovery was possible; that there was then no danger of the remaining eye becoming affected through the accident, and that the sight of the remaining eye was normal. (3) That at the time he met with the accident he was a ‘tapper,’ that he had been a tapper for three and a half years, and before that had been an ordinary labourer. (4) That his duties as a tapper were, as the parties by joint-minute have admitted, ‘to bore out copper stays in fire boxes.’ These boxes have holes which are fitted up with copper stays, ‘and when these require renewal the tapper cuts the head off the stays on the outside with a hammer and chisel, and he then bores out the stay with a machine and inserts the new stay.’ (5) That his eyesight in the remaining eye is quite sufficient for the work of a tapper, and that he is now and was at the date of this application fit to resume work. (6) That the respondents have in their employment doing the same or similar work several men who many years ago lost the sight of one eye by accident, and who are able, notwithstanding the loss of the eye, to earn and do earn full wages. (7) That the appellant's average weekly earnings were 23s. 6d., and that he has been paid compensation at the rate of 11s. 9d. per week since the accident.

I found in these circumstances that the compensation fell to be ended, and I ended the same accordingly as at 20th November 1911. I refused the crave of the minute for the appellant lodged on 10th January 1912 and found the respondents entitled to expenses.”

The questions of law for the opinion of the Court were—“1. Whether on the facts found proved, as stated in the interlocutor, the arbiter was entitled to terminate the compensation? 2. Whether, in view of the whole facts of the case, the arbiter was bound to give effect to the appellant's minute, either by making a nominal award or by sisting procedure?”

Argued for the appellant—The arbiter, following the law laid down in Rosie v. Mackay, 1910 S.C. 714, 47 S.L.R. 654, had refused to make a nominal award or to suspend compensation for a time, but this view of the law had since the date of his award been held to be erroneous by the decision of the House of Lords in Taylor v. London and North-Western Railway Company, [1912] AC 242. In these circumstances the appellant asked that the case be remitted to the arbiter to reconsider his decision in the light of the latter case and to exercise his discretion. Even if the physical capacity of the appellantremained

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unchanged, that was not the only consideration. The arbiter was bound to consider all the results causally connected with the injury— Ball v. Hunt & Sons, May 13, 1912, 49 S.L.R. 711, 28 T.L.R. 431, per Lord Shaw; Macdonald or Duris v. Wilsons and Clyde Coal Company, May 13, 1912, 49 S.L.R. 708, overruling Boag v. Loch-wood Collieries, Limited, 1910 S.C. 51, 47 S.L.R. 47. The arbiter's finding as to appellant's fitness to resume work left such consideration open, and in that respect the case was distinguishable from Hargreave v. Haughhead Coal Company, [1912] AC 319, founded on by respondents.

Argued for the respondents—The arbiter had followed the proper course. Rosie v. Mackay ( cit. sup.) was not overruled by Taylor v. London and North-Western Railway Company ( cit. sup.). The dicta in the latter case founded on by the appellant were obiter. The case of Rosie v. Mackay ( cit. sup.) was not referred to in the argument nor considered in the opinions. Further, the present case was different from Rosie v. Mackay ( cit. sup.), because in that case there was a possibility of recurrence of the injury which did not exist here. To bring the present case within that rule there must be a finding that the injury was liable to recur. It did not therefore matter whether Taylor v. London and North-Western Railway Company ( cit. sup.) overruled Rosie v. Mackay ( cit. sup.) or not. The effect of the arbiter's findings was that the appellant's wage-earning capacity was not diminished, and the present case therefore resembled Hargreaves v. Haughhead Coal Company ( cit. sup.), and was distinguishable from the cases of Ball v. Hunt & Sons ( cit. sup.) and Macdonald or Duris v. Wilsons and Clyde Coal Company ( cit. sup.).