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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thomson v. John Watson Ltd [1915] ScotLR 55 (28 October 1915)
URL: http://www.bailii.org/scot/cases/ScotCS/1915/53SLR0055.html
Cite as: [1915] SLR 55, [1915] ScotLR 55
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SCOTTISH_SLR_Court_of_Session
Page: 55↓
Court of Session Inner House First Division.
[Sheriff Court at Hamilton.
v.
Facts:
A workman and his employers agreed that partial compensation be paid in respect of an industrial disease, and a memorandum of agreementto that effect was recorded. The workman thereafter enlisted in the army. The employers applied for suspension of the weekly payments while the workman was in the army.
Held that the employers were not entitled to have the payment of compensation suspended, butthatthearbiter should assess compensation on the basis, not of the army, which was not “suitable employment” in the meaning of the Act, but of what suitable industrial employment the workman could have engaged in having regard to his state of health.
The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) enacts—Schedule I, section 3—“In fixing the amount of the weekly payment regard shall be had to any payment, allowance, or benefit which the workman may receive from the employer during the period of his incapacity, and 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.”
John Watson Limited, coalmasters, Earnock Colliery, Burn bank, Hamilton, respondents, applied in the Sheriff Court at Hamilton for review of the weekly payments of compensation made by them to James Thomson, formerly fireman, 12 Forrest Street, Low Blantyre, and then private, 7th Battalion Royal Scots Fusiliers, appellant. The Sheriff-Substitute (Shennan) as arbitrator suspended the payment of compensation. The workman appealed by Stated Case.
The Case stated—“The following facts were admitted:—1. The appellant was employed by the respondents as a colliery fireman in their Earnock Colliery. He was duly certified to be disabled in respect of miner's nystagmus from 15th April 1914. On 19th June 1914 the parties agreed that partial compensation be paid by the respondents to the appellant at the rate of 17s. 8d. per week, and thereafter a memorandum of agreement to this effect was recorded in
Page: 56↓
the Special Register of the Sheriff Court of Lanarkshire at Hamilton. 2. In September 1914 the appellant enlisted in the 7th Battalion Royal Scots Fusiliers, and he is still a private in that regiment and on duty with it. 3. On 6th October 1914 the weekly compensation was by agreement reduced to 10s. per week. Compensation at this rate has been paid down to 14th April 1915. The respondents lodged the minute which is the subject of the present arbitration on 3rd May 1915. All that they desire meantime is to have the weekly payment of compensation suspended.
I rejected the respondents' argument to the effect that the appellant was barred by section 9 of the Workmen's Compensation Act 1906 from claiming compensation under the Act— S.S. “Raphael” (Owners of) v. Brandy, [1911] AC 413, 4 B.W.C.C. 307. But I held that the respondents were entitled to temporary suspension of payment of weekly compensation, because the appellant by enlisting has made it impossible to apply the provisions of Schedule I par. 3, in assessing partial compensation with reference to ‘the average weekly amount which he is earning or is able to earn in some suitable employment or business after the accident.’ In my opinion such ‘suitable employment or business' means an industrial or commercial employment in which the workman may earn as much money as his physical condition permits, and does not mean naval or military service. The appellant did not enlist in order to earn wages. Accordingly, however creditable his action has been in enlisting, he has thereby made it impossible for the employers to assess the extent to which he is at present disabled in respect of miner's nystagmus from earning full wages at his work.
On 7th June 1915 I issued an award suspending the weekly payment of compensation to the appellant as at 14th April 1915.”
The question of law for the opinion of the Court was—“On the foregoing facts were the respondents entitled to an award suspending the weekly payments of compensation to the appellant?
The appellant argued—There was no impossibility in finding out what the workman could earn in a suitable employment, i.e., in a suitable civil employment. It was the arbitrator's duty to discover what the workman could earn in such an employment, and assess the compensation payable accordingly. [The argument was stopped.]
The respondents argued—The statute required compensation to be assessed on the basis of what the workman was able to earn in suitable employment. The appellant could not enter civil employment, and the calculation required by Schedule I, section 3, could not be made. It was idle for the arbitrator to imagine what the appellant might be able to earn in an impossible set of circumstances.
The respondents, who had been paying the appellant compensation under the Workmen's Compensation Act, applied to the arbitrator for a review of the weekly payments, but the arbitrator has refused to review, and has in hoc statu suspended, the weekly payments on the ground that the workman has joined the colours, and therefore is not at the present moment engaged in a suitable employment in the sense of the Workmen's Compensation Act. Accordingly in the arbitrator's opinion there are no data upon which he can proceed in reviewing the compensation.
In coming to that conclusion it seems to me that the arbitrator has overlooked the alternative in the Act which warrants him, if the workman is not actually engaged in some suitable employment, to consider what suitable employment he could engage in, and what he is capable of earning in that suitable employment.
I agree with the arbitrator that the workman's employment as a soldier is not the employment which is referred to in the Act, and that the standard would be some suitable industrial or commercial employment. But there appears to me to be no difficulty whatever in ascertaining from the man's physical condition what suitable employment in the industrial sphere he could engage in at the present moment, having regard to his state of health. That, then, would be the standard to apply, and from his conclusion upon that inquiry the arbitrator would be able to reach, I have no doubt, a sound conclusion as to what amount of compensation the workman is now entitled to have if any.
I therefore think that we ought to answer the question put to us in the negative and remit to the arbitrator to make the inquiry and to review, as he thinks proper, the amount of compensation originally awarded.
But then that does not by any means solve the problem to which the arbitrator must address himself, because under the statute his duty is to go on with the best materials he can get to consider the alternative question—what is the workman able to earn in an employment within the meaning of the Act, and when he has reached a conclusion upon that point then the compensation will be assessed accordingly.
Page: 57↓
The Court answered the question of law in the negative, and remitted the case to the arbitrator to proceed.
Counsel for Appellant— Moncrieff, K.C.— Burnet. Agents— Simpson & Marwick, W.S.
Counsel for Respondent— Horne, K.C.— Carmont. Agents— W. & J. Burness, W.S.