Scottish Court of Session Decisions

Now I agree that that is a question which, when it does arise, may be fixed by agreement or by arbitration, because, if the parties agree about it there is no dispute; if there is any dispute, then the statute says any dispute in the course of the proceedings shall go to arbitration.

There is an additional contingency which does not involve any alteration of the amount of the compensation, but which affects the amount payable, because there is also a provision that the compensation may be redeemed by a single payment in certain circumstances; and therefore the Act says the compensation is to continue during incapacity and until it is ended, diminished, redeemed, or suspended. All these things appear to me to be clearly implied in an agreement that the compensation is to be a weekly compensation, payable under the Act and in terms of the Act.

That an agreement to that effect does not fix duration is perfectly clear; but no agreement fixing a definite duration would be in terms of the Act at all. The employer is not bound to undertake to pay for a fixed time, nor is the workman bound to accept a payment for a fixed time; but the amount of the compensation being fixed, the Act determines that it shall last until some change in the man's condition makes it right and proper that it should be altered. An agreement to that effect, therefore, appears to me to be clearly other than the terms of the receipt tendered by the employer; and if the receipt meant anything else, I think the case of Freeland v. Summerlee Iron Co. is an authoritative decision that the workman would not have been bound to accept it. He is not bound to accept a tender which gives him a sum of money for a particular time. If the employer does not give him voluntarily the full benefit of the Act in accordance with its conditions he is entitled to an arbitration.

It appears to me, therefore, that the Sheriff's first question must be answered in the affirmative, because there was evidence before him on which he could come to that conclusion; and, if that be so, the second question appears to me to be of no importance whatever. If the memorandum of agreement which the Sheriff was asked to record had omitted the words between “beginning the first payment” and the words “the above-mentioned Act,” I think it would have had exactly the same effect as it has in the terms which are actually expressed. I see no difference between saying that the respondents have agreed to pay a certain weekly compensation, beginning the first payment on the 6th March, “in terms of the above-mentioned Act,” and saying that they have agreed to pay that amount, beginning at that date, and continuing the payment thereof until the same is ended, diminished, redeemed, or suspended, because the additional words simply express what is clearly implied in the words which are admittedly proper, namely, “in terms of the Act.” I therefore agree with your Lordship.

Lord Johnston—I cannot decide this question without paying some regard to the real question behind the technical question. There is no doubt that employers have felt it a very great hardship that they should under certain circumstances have to go on paying at the full rate after the workman has either entirely or partially recovered, and after, therefore, he should be getting only a modified amount of compensation. I sympathise entirely with that feeling, and I cannot help feeling that there is a certain defect in the Act as regards this point. But we have got to administer the Act as it stands.

Now what these employers want to ascertain is whether they can, out of their agreement made with their workman, deduce the conclusion that at their own will they can say “This agreement is now at an end in respect that there has been recovery.” Because if one looks at the statement at the bottom of page 2 of the case it becomes apparent their contention is that no agreement was made for payment of compensation except an agreement to make the weekly payments which the claimant actually received, and in particular no agreement to continue payment of compensation until the same should be ended or diminished under the Act.

Now if one looks at the form of receipt granted by the workman it is hardly possible to square that statement with its terms. Because it would lead to this, that there was no agreement whatever to pay compensation, but merely the act of payment, which only involves an agreement ad hoc or to make that particular payment. Thus on 29th July 1912 they would maintain—“There is no obligation on us to pay anything though we did pay on 18th June. Each payment constitutes a new agreement.” It is in accordance with this contention that with their last payment on 20th January they intimate that compensation is to be stopped, that is to say, there is no agreement for the future.

Now I do not think it is possible to maintain that such an agreement would be an agreement for compensation under the statute. The whole error on the part of the appellants appears to me to be in attempting to maintain that, ab initio, there can, and must be if the agreement is to be an agreement under the statute, a determination of all the three points of liability, of amount, and of duration. There must be an agreement or a determination ab initio of liability, but it is always of liability under this Act. In the same way ab initio there must and can be a determination of amount under this Act. These things are matters which must ab initio be fixed. But you cannot fix the duration of the compensation . That must always be determined according to the event. The question of duration can only be determined when there is a call for review as provided for in the 16th section of the Act.

Now if that be the case, in order to make any particular agreement an agreement under the statute it is only necessary that it contains the terms which the Sheriff has used. For it is perfectly indifferent whether the memorandum of agreement says that the appellants “agreed to pay compensation under the Act at the rate of,” &c., or adds “during total disablement,” or adds “continuing the payment thereof until the same is ended,” &c. These three forms are precisely the same in result, and no agreement is an agreement under the statute which does not in one form or another provide for liability and amount and leave duration to be determined at the proper time and from time to time.

I therefore think that though the Sheriff has sanctioned the recording an agreement which includes the latter expression the words are innocuous, because if they were not there they must be implied. Accordingly I agree with your Lordship in the way in which you propose to answer the questions.

Lord Mackenzie—I am of the same opinion. I think that the conclusive answer to the first question that is put is to be found in the terms of the receipt which is quoted in the case, because that bears that the workman received from the employers a sum of money, “being weekly compensation to date under the Workmen's Compensation Act 1906, under which Act I elect to claim for personal injury by accident.” He made the claim under the Act. The payment was made to him in satisfaction of that claim, and the employer was content to accept a receipt which expressly bore that it was received “under the Workmen's Compensation Act 1906.”

Now, under these circumstances the Sheriff had ample justification for finding in fact that the agreement was made in terms of the Workmen's Compensation Act 1906. I am unable to see as regards the second question which is put, how, when that conclusion is reached, it is possible to say that the true construction of the agreement is not just that it is in terms of the Workmen's Compensation Act 1906, which is scheduled as part of the agreement. If that conclusion is reached, then all that the Sheriff has done in granting warrant for the memorandum being recorded in the terms which are complained of here is merely to write at a greater length what is contained in the finding of fact that he sets forth in the latter part of the case.