Scottish Court of Session Decisions

This was an appeal by way of Stated Case from a decision of the Sheriff-Substitute ( Lyell) at Glasgow in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), between Euliff Sorensen, seaman, West College Street, Glasgow, appellant, and John Gaff & Company, steamship owners, Glasgow, respondents.

The Case stated—“(1) That the appellant, who was a seaman in the employment of the respondents on board the s.s. ‘Shakespeare,’ was injured by an accident arising out of and in the course of his employment while the said s.s. was at sea on 26th December 1911. (2) That on said 26th December 1911, on the arrival of the said s.s. in Falmouth Harbour, the appellant entered the Falmouth Cottage Hospital, and was maintained and medically treated there until 16th February 1912. (3) That in respect of such maintenance and treatment the said hospital rendered to the respondents, prior to the raising of the arbitration proceedings, an account for £9, 5s., which the respondents settled in full, subsequent to the raising of the arbitration proceedings, by a payment of £6, 10s. 7d. (4) That the weekly earnings of the appellant averaged at 34s. 6d. (5) That the respondents paid the appellant compensation at the rate of 17s. 3d., being 50 per cent. of 34s. 6d., from the said 16th February 1912 up to 5th April 1912, at or about which latter date they aver that the appellant's incapacity came to an end.

The only question upon which the parties desired judgment meantime was as to whether the payment by the respondents of the appellant's maintenance and treatment in Falmouth Cottage Hospital from the date of the accident to his discharge on 16th February was a benefit which the appellant received from the respondents during his incapacity to which regard must be had in fixing the amount of compensation.

I found in fact and law (1) that the said payment of £6, 10s. 7d. for the appellant's maintenance and treatment in the said hospital was not payment of a debt due by the respondents to the appellant under the Merchant Shipping Act or otherwise; (2) that the said payment was a benefit received by the appellant during the period of his incapacity, and in respect of a period of incapacity covered by the Workmen's Compensation Act 1906, and I found in law (1) that in fixing the amount of the weekly payment regard must be had to the said payment of £6, 10s. 7d.; (2) that the respondents' liability to pay compensation to the appellant should be assessed at one penny per week from 26th December 1911 to 16th February 1912, and at seventeen shillings and threepence per week from 16th February 1912 during the appellant's total incapacity, and with these findings I continued the cause.”

The question of law was—“Whether the payment by the respondents of the appellant's maintenance and treatment in Falmouth Cottage Hospital from the date of the injury by accident to his discharge on 16th February 1912, was a benefit received by the appellant from the respondents during the period of his incapacity to which the arbitrator was bound to have regard in fixing the amount of the weekly payment, by virtue of the provisions of paragraph (3) of Schedule I of the Workmen's Compensation Act 1906?”

Argued for the appellant—It was an inference of fact from the Sheriff's findings (1) that appellant went to the hospital of his own accord and not on his master's recommendation; (2) that he was not therefore in receipt of benefit from his master; and (3) that the respondents did not ex post facto convert the payment into a benefit. Payment of a debt due by a workman was not a benefit in the sense of the Act— Suleman v. Owners of the ‘Ben Lomond,’ 1909, 2 B.W.C.C. 499; M'Dermott v. Owners of s.s. ‘Tintoretto,’ 1909, 25 T.L.R. 691, 4 BWCC 123; Kempsonv. Owners of'Moss Rose,’ 1910, 4 B.W.C.C. 101; Simmonds v. Stourbridge Glazed Brick and Fireclay Company, Limited, [1910] 2 KB 269.

Counsel for the respondents were not called on.