Scottish Court of Session Decisions

That it was not intended to treat this matter as having no relation to what went before is quite manifest when one reads section 8 (1) ( c) (ii), which says “if that employer”—that is, the employer who is charged with being liable to pay compensation—“alleges that the disease was in fact contracted whilst the workman was in the employment of some other employer,” he is entitled to prove the allegation and to escape paying compensation. That provision plainly implies that the matter is not to be settled merely by the accident of a certificate of disablement having been given upon a certain date. It entitles the employer who is being charged to say that the disease which led to there being a claim for compensation as if an accident had happened at the date of the certificate was previously contracted while the workman was in the employment of another employer and not in his employment.

The question whether or not you are to cut a sharp line and treat the disease as an accident which is to be held to have taken place on the date upon which the certificate was granted seems to me to admit of only one answer. There was no accident. It is only for the purpose of assessing the compensation that the idea of an accident comes in at all. There was a disease contracted—a disease which, after a certain time of development, led to disablement being certified—and the workman is entitled to compensation against the employer in whose service the disease was contracted, subject to this proviso, that there should be no compensation payable except from the date of its being certified that he is disabled, the date of the certificate being treated as if it were the date of an accident falling within the provisions of the Act.

On the whole matter I have no doubt whatever that the decision of the Sheriff-Substitute was right, and that we should answer the questions accordingly.

Lord Guthrie—I am of the same opinion. The Sheriff's first finding is not disputed, namely, that the respondent had proved that the miners' nystagmus from which he suffered was due to the nature of his employment with the appellants between 2nd October 1913 and 2nd September 1914. But the second finding, leading to the result at which the Sheriff arrived, is questioned, namely, that section 8 of the Act does not require the date of disablement through miners' nystagmus to be a date during the currency of the employment to the nature of which the disease is due.

The statute clearly distinguishes between actual accidents dealt with in section 1 and cases of industrial disease dealt with in section 8, in conjunction with the Third Schedule, which it was explained has, subsequent to the date of the Act, been enlarged so as to include the disease with which we are here dealing.

In this case the workman was unemployed at the date when he got the certificate, 8th October, and on the date which the surgeon certified as the date of disablement, 2nd October, because he had been discharged from the army on 29th September 1914. Mr Horne admits that if the surgeon when he granted the certificate on 8th October had dated the disablement back to 1st September when the workman was still in employment there would have been no case at all. But his view comes to this, that unless the workman at the date fixed as the date of disablement is actually in employment he has no claim whatever. I agree with your Lordship in thinking that if that is the result of the Act it would lead to the most gross injustice, and is a result that we could never reach unless the statute was absolutely clear and unambiguous.

It seems to me that the statute does not intend to make such a distinction between the case of an actual accident and what has been called a statutory or fictional accident. It certainly lays down in section 8 three conditions under which a workman shall be entitled to claim—first, that he cannot get anything for any period before the date of disablement; second, that he can only go back twelve months in his inquiry as to who is bound to pay; and third, that there are provisions for dividing the amount of compensation among the employers by whom he has been employed during these twelve months in which the disease ran its course. I agree with the Sheriff and also with your Lordship in holding that there is nothing in the Act to lead to the result which the appellants here contend for—a result leading to most anomalous effects which the statute never contemplated.

Lord Hunter—I am of the same opinion. The reasoning of the appellant appears to me both unsound and artificial. Section 8 of the Workmen's Compensation Act extends the provisions of that Act to industrial diseases. In order to entitle a workman claiming under that section to recover he must have a certificate certifying that he is suffering from an industrial disease, and he must show that the disease is due to the nature of the employment in which he was employed within the preceding twelve months. These, I take it, are the only two conditions that require to be satisfied in order to the recovery of compensation under this section. To hold that because of the terms of head ( a) of section 8 (1) disablement or suspension is to be treated as the happening of an accident so as to bar the workman from recovering in the event of his having left the employment at the time the certificate is given or at the time the disablement started seems to me to be a wholly unnatural construction of the words. It is quite inconsistent with other provisions of the section, to which your Lordships have already referred.

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