Scottish Court of Session Decisions

(The case is reported ante ut supra.)

This was an appeal against a decision of the Sheriff-Substitute at Kirkcaldy ( Umpherston), in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) between William Arnott, miner, Kirkcaldy, claimant and respondent, and the Fife Coal Company, Limited, appellants.

The facts as set forth in the Stated Case were as follows—“1. On 8th September 1908 William Arnott, the claimant, was a miner in the appellants' employment at their Bowhill Colliery, Cardenden. On said date his left eye was injured, and it was removed on 23rd September 1908.

2. From the date of the accident until he started work above ground in the month of September 1909 the claimant was paid the maximum compensation at the rate of £1 per week.

3. In the month of September 1909 the claimant started work above ground in the employment of the appellants. His partial compensation was fixed at 13s. 4d. per week, and he was paid at that rate until 13th January 1911. He has received no compensation since that date.

4. On said 13th January 1911 the claimant was examined by Dr George Mackay, 20 Drumsheugh Gardens, Edinburgh, medical referee in ophthalmic cases under the Workmen's Compensation Act 1906, on a remit under section 15 of Schedule I of said Act.

5. The report of said medical referee lodged on 18th January 1911 is in the following terms:—‘The said William Arnott had his left eye removed on 23rd September 1908, following upon the accident for which compensation is claimed. The socket is at present slightly inflamed as the result of wearing an artificial eye too freely. That, however, should soon yield to appropriate treatment. The right eye has a very slight error of refraction, but otherwise is quite a sound one. Though he complains of some subjective sensations of occasional headache, there does not appear to be any obvious cause for these which could be assigned to the injury, and his condition is such that, having for the past fifteen months been engaged in work at the pithead, he is now, in my opinion, as fit as any other one-eyed man to resume his work underground.’

6. Following upon said report the appellants lodged in process in the Sheriff Court at Kirkcaldy a minute craving the Court to end the claimant's compensation as at 13th January 1911. The claimant lodged answers to said minute, stating, inter alia, that he had not recovered from the injuries which he had sustained, and that he had not recovered his earning capacity following upon said injuries; that he was still under medical treatment; that since the date of the accident the socket of the left eye, which had been removed, had been in an inflamed condition, painful and suppurating; that he suffered from headaches during his shift and after; that these headaches were brought about through his having to stoop or bend, and were a result of the injuries which he had sustained; that they interfered with his capacity for work and his earning ability; and further, that the sight of the remaining eye was weak and became dim and fagged by the end of the shift. The claimant further stated that while his earning capacity had been and was at that time much reduced as a result of the injuries which he had sustained, he was quite prepared to try work below ground so that his earning capacity might be properly tested. He averred, further, that a certain period at least should elapse to enable him to accustom himself to his altered condition.

7. After hearing parties' agents on the minute and answers, I repelled the answers for the claimant as irrelevant, and terminated his compensation from the date of the medical referee's report, namely, 13th January 1911.

8. Against this decision the claimant appealed by Stated Case to the First Division of the Court of Session, when the following question of law was submitted for the opinion of the Court—‘In the circumstances above stated was I entitled to end the compensation payable to the appellant (now respondent)?’

9. On 17th June 1911 the Court issued the following interlocutor—‘The Lords having considered the Stated Case on appeal, and heard counsel for the parties, answer the question of law in the case in the negative in hoc statu; Recal the determination of the Sheriff-Substitute as arbitrator, and remit to him to allow parties a proof of their averments, and to proceed as accords.’

10. I thereupon appointed proof to be led on 21st July 1911, when the following facts were proved, viz.—( a) That the claimant since the date of the accident had not worked underground, but that he had made various applications for work underground without success. ( b) That it was impossible to say whether, if the claimant had returned to work underground in January 1911 he would have regained his former earning capacity by 21st July. ( c) That there is no standard of earning capacity for one-eyed miners who are able to work at the face. Each individual must have a standard for himself. The power of the sound eye, the inherent capacity of the individual to adjust himself to altered conditions of work, and the degree of self-confidence which enables a miner to overcome a natural, perhaps nervous, timidity which is engendered by a sense of augmented danger in his occupation, are all elements personal to the injured man which affect his earning capacity when he returns to his former occupation. Some men after the loss of an eye are able to return to work at the face, and after a time to earn as much as formerly. Others are unable to adapt themselves to the new conditions and to continue work underground. ( d) That the claimant is presently working on the surface, and is only able on account of his injuries to earn 18s. a-week. There was no evidence before me as to his earnings

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prior to the accident except that they were more than £2 per week. ( e) It was not proved that the claimant, if he had been working at the coal face, would have been earning more than he was earning on the pithead.

I accordingly dismissed the appellants' application for review.”

The question of law was—“Was I entitled to dismiss the application of the appellants?”

Argued for appellants—Where, as here, the claimant's “physical capacity” was as good as ever, there was no need to inquire as to his “wage-earning capacity,” for what the statute contemplated was “physical capacity”— Carlin v. Stephen & Sons, Limited, 1911 S.C. 901, 48 S.L.R. 862. Esto, however, that it was competent for the workman to tender evidence that his wageearning capacity was less— Rosie v. Mackay, 1910 S.C. 714, 47 S.L.R. 654—the onus of proving that it was so lay upon him— M'Ghie v. Summerlee Iron Company, Limited, 1911 S.C. 870, 48 S.L.R. 807. This onus he had failed to discharge, and the arbiter therefore was in error in dismissing the application to vary. The amount a workman was earning after an accident was not conclusive as to his wage-earning capacity— Clelland v. Singer Manufacturing Company, July 18, 1905, 7 F. 975, 42 S.L.R. 757. Nor was an unsuccessful application for work a criterion of total incapacity— Boag v. Lochwood Collieries, Limited, 1910 S.C. 51, 47 S.L.R. 47; Cardiff Corporation v. Hall, [1911] 1 KB 1009 (per Fletcher Moulton, L.J., at p. 1020). The question was really one of onus. The workman had not discharged it, and therefore the compensation should be ended. Alternatively, a remit should be made to ascertain whether there had been any diminution of the claimant's wage-earning capacity.

Argued for respondent—Incapacity for work was not limited to cases of diminished “physical” capacity; it included cases of diminished “wage-earning” capacity— Ball v. William Hunt & Sons, Limited, [1911] 1 KB 1048 ( per Fletcher Moulton, L.J., at p. 1054). Where, as here, the employers had not proved the kind of work the claimant could do, and that he had a chance of obtaining that particular kind of work, the application should be refused— Proctor & Sons v. Robinson, [1911] 1 K.B. 1004; Cardiff Corporation ( cit.), at p. 1013. Wage-earning capacity and not physical capacity was the true test— Clelland ( cit. sup.). The appellants' contention that the onus lay on the workman to show that his wage-earning capacity had diminished rested on a fallacy, for there was no finding of complete recovery. The report of the medical referee was that the claimant was as fit “as any other one-eyed man.” That meant less fit than a two-eyed man. The onus therefore lay on the appellants.

At advising—