Scottish Court of Session Decisions

James Nimmo & Company, Limited, coal masters, Redding, Polmont, pursuers, presented a note of suspension in the Sheriff Court at Falkirk in which they sought to suspend a charge at the instance of Matthew Myles, miner, Reddingmuir, Polmont, defender, upon a recorded memorandum under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), for payment of fifteen shillings, being compensation for one week.

The facts of the case were as follows:—“(Cond. 2) It is explained and averred that defender's average weekly earnings prior to his accident were 36s.; that he was paid compensation to 3rd February 1917, the payment for the week ending on that date being 15s.; that for the week ending on 10th February 1917 defender earned 23s. 4d. and was offered but refused 12s. 8d. as compensation for that week; that in charging pursuers to pay him 15s. as compensation for the week ending 10th February 1917 defender has charged for 2s. 4d. more than the full difference between his earnings for that week and his average weekly earnings prior to his accident, and that said charge is therefore inept and incompetent. ( Ans. 2) With reference to the amended statement No. 2 for pursuers, it is admitted that defender's average weekly earnings prior to the accident were 36s., and that he was paid compensation to 3rd February 1917, the payment for the week ending on that date being 15s. It is further admitted that for the single week ending on 10th

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February 1917 defender earned 23s. 4d., and was offered but refused 12s. 8d. as compensation for that week. It is further explained and averred, however, that for the immediately succeeding week defender only earned 14s., being three days' earnings, to which limited period of employment he was restricted as a result of his incapacity for work caused by his accident; that he has been similarly restricted on many occasions since the date of the arbiter's award of compensation in December 1915, and that the total of the average weekly amount which the defender has earned since that date, and the weekly payment of 15s. made under that award, is considerably less than the average weekly earnings prior to the accident. In these circumstances the charge given by the defender for payment of the sum of 15s. for the week referred to was regularly proceeded and was in order. The defender holds an award by the arbiter of 15s. per week in unqualified terms, which in the circumstances gives him right to charge the pursuers for payment of that amount until the payment is reviewed under the appropriate procedure laid down in terms of the Workmen's Compensation Act 1907, and no hardship whatever will result to the pursuers if the suspension is refused.”

The pursuers pleaded—“The charge being inept and incompetent as condescended on, suspension should be granted as craved, with expenses to pursuers.”

The defender pleaded—“(2) In respect the total of the average weekly earnings of defender and the 15s. weekly compensation is considerably less than the average weekly earnings at the time of the accident, the charge given is regularly proceeded and in order, and the suspension thereof should be refused, with expenses to the defender. (3) The defender, holding as he does an award of 15s. weekly compensation in unqualified terms, is entitled to charge for payment of that amount in the circumstances until the same is reviewed by a competent order of the arbiter. (4) The question at issue between the parties being virtually one of review of the amount of compensation payable to the defender, should not in the circumstances be determined in proceedings by way of suspension, and the suspension now brought should accordingly be refused, with expenses.”

On 13th April 1917 the Sheriff-Substitute ( Moffatt) sustained the third and fourth pleas-in-law for the defender.

Note.—“I have come to the conclusion that this suspension ought to be refused. I do not think the pursuers have set forth sufficient grounds for its being sustained. No doubt suspensions of a charge on a registered memorandum of agreement in workmen's compensation cases have been granted by the Supreme Court in circumstances where there was manifest injustice. In the first of that class of case— Beath & Keay v. Ness, 1903, 6 F. 168—the suspension was granted on the ground that the pursuers' claim was unconscionable. In the case of Fife Coal Company v. Lindsay, 1908 S.C. 431, Lord Ardwall said—‘… A suspension ought not readily to be entertained, and to justify its being granted it ought to be shown that without such suspension the complainer would suffer some manifest injustice, and further that the end to be attained by such suspension could not be attained by proceedings under the Act’ (p. 438).

It does not appear here that the pursuers have suffered manifest injustice. It seems to me that it would be an abuse of the forms of process to allow this action to proceed. The pursuers seek only to suspend a charge of payment of compensation for one week, and they do not set forth that the defender's ‘average’ weekly earnings are so great as to make his combined wages and compensation higher than permitted by the statute. It is not for me to say how many weeks would require to be condescended upon so as to arrive at an average, but I am quite clear that the average is the point and that one week cannot make an average. This case is entirely different from Beath & Keay ( cit.), Nimmo v. Fisher, 1903 S.C. 890, and Baird v. M'Whinnie, 1908 S.C. 440. In all these cases there was an unconscionable demand or a manifest injustice.”

The pursuers having appealed, the Sheriff ( Lees) on 2nd May 1917 recalled the judgment of the Sheriff-Substitute and granted the suspension.

Note.—“It is quite plain on the authorities that suspension is not the form to obtain review of an arbiter's award under the Workmen's Compensation Act.

But no such review is sought here. The pursuers do not impugn the award, but they say that, standing the award, they are entitled to protection by the Court against compulsion to pay more than they are legally liable for.

The parties are agreed as to the facts. The average weekly earnings of the defender were 36s. prior to his accident, the award is for compensation at 15s. per week, up to 3rd February he has been paid in full, in the succeeding week he earned 23s. 4d., he demanded 15s. a week under the award, and as he was offered only 12s. 8d. he has charged the pursuers for payment of 15s.

Now it is clear on the authorities that if a workman charges his employer to pay more than he is entitled to ask, the employer is entitled to protect himself by suspension—see Nimmo & Company v. Fisher, 1907 S.C. 890; Beath v. Ness, 6 F. 168; and Baird & Company v. M' Whinnie, 1908 S.C. 440.

It is indisputable that if the pursuers are made to pay 15s. of compensation for this week the defender will be getting 2s. 4d. more than the agreed-on average of his earnings prior to his accident. To that he is not entitled.

No doubt if in the succeeding week he earned only 18s. 8d. he would be entitled to charge, if necessary, for payment of 15s. a week for each of the two weeks, because then his average wage for the two weeks would be 21s., and 15s. added to this would bring the total payments made to him up to 36s., the average of his wages before his accident.

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It is said a single week will not give an average. But it is the act of the defender himself in electing to charge in regard to the single week that compels that week's earnings to be accepted as an average, instead of taking the average of two or more weeks. The Supreme Court have steadily declined to allow the Act to be so worked as to allow a workman to demand more than he is legally entitled to, and I must therefore grant suspension of the charge.”

The defender appealed, and argued—The cases cited by the Sheriffs were distinguished, because here the workman had returned to his former employment. One week's earnings could never be taken to constitute an average. The workman could not be considered to be earning more on an average than his average weekly wages prior to his accident. This proceeding did usurp statutory proceedings, and was not auxiliary.

The pursuers argued—A workman was not entitled to receive more compensation than what would bring his weekly earnings up to the amount of his weekly wages prior to the accident. When he charged for a greater amount suspension ought to be granted— Beath & Keay v. Ness, 1903, 6 F. 168, 41 S.L.R. 113; James Nimmo & Company, Limited, v. Fisher, 1907 S.C. 890, 44 S.L.R. 641; Baird & Company v. M'Whinnie, 1908 S.C. 440, per the Lord Justice-Clerk at 443, 45 S.L.R. 338; Gibson & Company v. Wishart, 1914 S.C. (H.L.) 53, 51 S.L.R. 516.