Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw VII, cap. 58), Schedule I (3), enacts—“… In the case of partial incapacity the weekly payment shall in no case exceed the difference between the amount of the average weekly earnings of the workman before the accident and the average weekly amount which he is earning or is able to earn in some suitable employment or business after the accident, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper.”

Robert Burt, miner, Kelty, appellant, claimed and received compensation for a certain period under the Workmen's Compensation Act 1906 from the Fife Coal Company, Limited, respondents, in respect of injuries which he had sustained while at work in the respondents' employment. The Sheriff-Substitute ( Umpherston) having by interlocutor dated 20th May 1913 ended the appellant's right to compensation in the meantime, the appellant subsequently presented this application to the Sheriff-Substitute craving review of the said interlocutor, and to award him partial compensation on the basis of the difference between his average weekly earnings before the accident as a miner at the face and his average weekly earnings as a repairer or roadsman since he resumed work.

On 26th February 1914 proof was led before the Sheriff-Substitute, who awarded partial compensation in respect of the appellant's diminished earning capacity as a miner at the face and found the respondents liable to the appellant in expenses.

On 13th July 1914 he stated the following Case for appeal—I found the following facts admitted or proved:—1. That the injury in respect of which the appellant had been paid and again claimed compensation resulted in such loss of vision in the left eye as to render him practically a one-eyed worker underground. 2. That in June 1913 the appellant, who at the date of the injury above-mentioned was a miner working at the face, accepted work as a repairer, and since then had continued to work in that capacity or as a roadsman. 3. That in August 1913 he applied for work at the face. This he did, not because he wanted to return to the face, but solely in order to test his earning capacity at the work in which he was engaged at the time of the accident. The appellant had then been working at the Glasses or Lockie seam, which is a hard coal, at which eye injuries from bursts of coal or sparks from the pick are more liable to occur than at a softer coal. 4. That the under manager offered Burt a place at the main seam, which is a much softer and thicker seam than the Lockie, and I was satisfied he did this out of consideration for Burt, recognising the very serious effect to him if he received a similar injury to his right eye. This, however, was not explained to the appellant, who refused to go to the face unless he got the same work as that at which he was injured. 5. That as the appellant's purpose in going to the face was to test his earning capacity at his old work, his refusal to go to the main seam was not unreasonable. 6. That the appellant is now unwilling to return to the face, that he is fifty-eight years of age, that he has been able to adjust himself fairly well to his altered conditions and to do the work at which he is engaged, but that he finds difficulty in judging distances, particularly in low places, and has not the same confidence in moving about or the same readiness in his work as formerly; that he is not so observant as formerly of the many things about a pit, such as bars on the roof and wire ropes along the roads which may, and often do, cause injury if not noticed in time. 7. That in consequence of this he has received a good many knocks which he might otherwise have escaped—two in particular which kept him from work for one and three days respectively. 8. That his main reason for declining to return to the face is that injuries to the eye are more liable to occur there than at his present work, which is the case, and if he received an injury to his right eye such as he sustained to his left, he would be practically blind for life. 9. That injuries to the eyes, more or less severe, are peculiarly characteristic incidents of work at the face, and are of more frequent occurrence there than in other employments. 10. That the appellant is able to work as a miner at the face, but on account of his injury his earning capacity there is about 1s. 6d. per shift less than before he was injured, and that he is able to earn £1, 11s. 4d. per week as a miner at the face.

“Considering myself bound by the decision in Law v. William Baird & Company, Limited, 1914, S.C. 423, 51 S.L.R. 388, to find that work as a miner at the face was suitable employment for the appellant, I awarded compensation at the rate of 3s. 9d. per week, being 50 per cent. of the difference between his former earnings (£1, 18s. 10d.), and what I held he is now able to earn (£1, 11s. 4d.) as a miner at the face, and found the respondents liable to the appellant in expenses.”

The question of law for the opinion of the Court was:—“Was I bound to hold that employment as a miner at the face is suitable employment for the appellant?”

Argued for appellant—The question of law should be answered in the negative. By the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), Schedule I (3), where there is partial incapacity the arbitrator must inquire whether the employment offered is suitable. He had not done so here. The case of Law v. William Baird & Company, Limited, 1914 S.C. 423, 51 S.L.R. 388, was different from the present case, for in the former the arbitrator found as a fact that there was full capacity. Findings (6) and (7) in this case were the

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very opposite of finding (9) in Law's case. The question of suitability of employment was one of fact, or at least of mixed fact and law— Eyre v. Houghton Main Colliery Company, Limited, [1910] 1 KB 695; Buckley, L.J., at p. 701; Law ( supra), Lord Johnston at p. 429—and the arbitrator must come to a conclusion upon it.

Argued for respondents—On the facts found the arbitrator, applying the principles laid down in Law ( supra), was entitled and bound to come to the conclusion to which he had come. The arbitrator had considered here all the factors which determined the question of suitability of employment. Findings (6) and (7) in the present case were not the opposite of finding (9) in Law ( supra). Under (6) and (7) the arbitrator failed to find that at work on the face there would have been an increased chance of accident referable to the appellant's condition. The fact that because of the appellant's condition the consequences of an accident incident to a certain employment might be more serious was not a ground for holding that the employment was unsuitable— Eyre ( supra), Buckley, L. J., at p. 701; Law ( supra), the Lord President at p. 427.