Scottish Court of Session Decisions

In an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), in the Sheriff Court at Glasgow, between Andrew Crone, fireman, Glasgow, appellant, and Donaldson Line, Limited, respondents, the Sheriff-Substitute ( David J. Mackenzie) dismissed the case as incompetent and stated a Case for appeal.

The Case stated—“In the petition the appellant averred that he was a marine fireman in the employment of the respondents on board the s. s. Cabotia; that on 30th September 1915 he met with an accident at sea on board said ship, arising out of and in the course of his said employment; that said ship arrived in Glasgow on 2nd November 1915, when he was discharged; that he has been incapacitated as the result of said accident; that his wages were at the rate of £6, 10s. per month, together with board valued at 11s. 8d. weekly; and that he had been paid wages by the respondents up till 2nd November 1915.

The last article of the condescendence in said petition is as follows:—‘7. The defenders, although called upon to do so, refuse or delay to pay compensation to the pursuer, and this action has been rendered necessary.’

The first deliverance on said petition is dated 22nd November 1915.

The case called in Court on 30th November 1915, when the respondents, while admitting liability to pay compensation to the appellant under said Act, pleaded in defence that the proceedings were premature. They lodged in process the following letters, which were admitted, at the Bar:—

1. Letter from appellant's agent to respondents, dated 4th November 1915, which is as follows:—

‘Dear Sir,—I have been consulted by Andrew Crone, fireman, 44 Richard Street, Anderston, Glasgow, with regard to an accident which occurred to him, as already reported, while in your employment on board the s.s. “Cabotia” on 15th September last, whereby he sustained injuries to his right foot through same being scalded by steam. He is incapacitated for work, and it is not known when he may recover. For the injuries sustained he holds you liable, and has instructed me to make a claim against you (1) under the Workmen's Compensation Act 1906, and (2) at common law. I shall be glad to hear within the next three days whether you admit liability.—Yours faithfully, John M. Crosthwaite.’

2. Copy letter by the Shipping Federation, Limited, on behalf of the respondents, to the appellant's agent, dated 6th November 1915, which is as follows:—

“‘ A. Crone ex s.s. “ Cabotia.”

‘Dear Sir,—Your letter of the 3rd inst., addressed to the owners of this vessel, has been handed to me. You might be good enough to ask your client to call at our office in James Watt Street, when he will be medically examined, and will then be in a position to deal with his claim.—Yours faithfully, Walter Patterson, Secretary.’

3. Letter by the appellant's agent to said Shipping Federation, Limited, dated 8th November 1915, which is as follows:—

“‘ A. Crone— s.s. “Cabotia.”

Dear Sir,—I have yours of 6th inst., and will ask my client to call as desired.—Yours faithfully, John M. Crosthwaite.’

I thereupon heard parties, and in the course of the debate it was admitted at the Bar that the appellant had presented himself for medical examination on 9th November 1915; that the appellant received or made no further communication from or to the respondents, and thereupon instituted these proceedings, in which the first deliverance was granted on 22nd November 1915.

On 16th December 1915 I issued an award finding that in respect that it had not been shown that any question had arisen as to the respondents' liability to pay compensation to the appellant, the petition was incompetent. I therefore dismissed the same, and found no expenses due to or by either party.”

The questions of law for the opinion of the Court were—“1. Whether the arbitrator was, in the circumstances above set forth, entitled to find that the petition was incompetent, and to dismiss the same? 2. Whether the arbitrator, in the circumstances above set forth, was entitled to find no expenses due to or by either party?”

The Sheriff-Substitute appended the following note to his award:—

Note.—“In this case the pursuer is said to have been premature in raising his action, as no question had arisen between the parties, which is a necessary preliminary to arbitration. A claim was made on 4th November last in respect of an accident which is said to have happened at sea on 30th September, the ship having reached Glasgow on 2nd November. I understand it to be admitted that there was no denial of liability by the defenders, but that the pursuer was asked to present himself for medical examination. This he did on 9th November, and nothing further was said or done by the defenders. On the 22nd November this action was raised.

In view of the case of Kennedy v. The Caledon Shipbuilding Company, (1906) 8 F. 960, 43 S. L. R. 687, and Lord Pearson's opinion therein, which is often quoted, and is to the effect that arbitration is to be ‘the last resort of persons who find themselves unable to agree,’ I cannot find that there was here a question in dispute. There may have been some delay, and I think, on the mere statement of dates, that there was some delay in not at once answering the claim either one way or another from the 9th to the 22nd November. But there was no dispute as to liability or any other matter.

I therefore think the petition must be dismissed, but in the whole circumstances I do not award expenses to either party.

Page: 542↓

(See the case of M'Donald v. Rowan & Company, 23rd November 1914, in this Court.)”

Argued for the appellant—Liability to pay compensation was never admitted, and the Court was therefore bound to infer the existence of a dispute—Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), section 1 (3). Caledon Shipbuilding and Engineering Company, Limited v. Kennedy, 1906, 8 F. 960, 43 S.L.R. 687, was not in point, for in it the application for arbitration was presented before the compensation, if the employers were liable for it, became due. Further, it followed Field v. Longden & Sons, [1902] 1 KB 47, which did not apply, as in it the full rate of compensation under the Act was being paid when the application was brought.

Counsel for the respondents were not called upon.