Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) enacts—Section 8—“(1) Where (i) the certifying surgeon … certifies that the workman is suffering from a disease mentioned in the Third Schedule of this Act, and is thereby disabled from earning full wages at the work at which he was employed … and the disease is due to the nature of any employment in which the workman was employed at any time within twelve months previous to the date of the disablement … whether under one or more employers, he … shall be entitled to compensation under this Act as if the disease … were a personal injury by accident arising out of and in the course of the employment, subject to the following modifications:—( a) The disablement… shall be treated as the happening of the accident … ( c) The compensation shall be recoverable from the employer who last employed the workman during the said twelve months in the employment to the nature of which the disease was due; provided that (i) the workman or his dependants if so required shall furnish that employer with such information as to the names and addresses of all the other employers who employed him in the employment during the said twelve months as he or they may possess, and if such information is not furnished, or is not sufficient to enable that employer to take proceedings under the next following proviso, that employer, upon proving that the disease was not contracted whilst the workman was in his employment, shall not be liable to pay compensation; and (ii) if that employer alleges that the disease was in fact contracted whilst the workman was in the employment of some other employer and not whilst in his employment, he may join such other employer as a party to the arbitration, and if the allegation is proved, that other employer shall be the employer from whom the compensation is to be recoverable; and (iii) if the disease is of such a nature as to be contracted by a gradual process, any other employers who during the said twelve months employed the workman in the employment to the nature of which the disease was due shall be liable to make to the employer from whom compensation is recoverable such contributions as in default of agreement may be determined in the arbitration under this Act for settling the amount of the compensation.… (2) If the workman at or immediately before the date of the disablement … was employed in any process mentioned in the second column of the Third Schedule to this Act, and the disease contracted is the disease in the first column of that schedule set opposite the description of the process, the disease, except where the certifying surgeon certifies that in his opinion the disease was not due to the nature of the employment, shall be deemed to have been due to the nature of that employment, unless the employer proves the contrary.

The Third Schedule as amended by the Order of the Secretary of State dated July 30, 1913 (S.R. & O., 1913, No. 814) contains in correlated columns, “The disease known as miner's nystagmus” … and “Mining.”

Archibald Russell, Limited, appellants, being dissatisfied with an award of compensation under the Workmen's Compensation Act 1906 by the Sheriff-Substitute at Hamilton ( Shennan) in an arbitration

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between them and Edward Docherty, respondent, appealed by Stated Case.

The Case stated—“The following facts were admitted or proved:—1. On 4th December 1916 the respondent was certified by Dr Robert Clarke, a certifying surgeon, as disabled through miners' nystagmus from earning full wages as a miner, the date of the commencement of disablement being certified as 13th November 1916. 2. The respondent worked as a miner in the appellants' Loanend Colliery from 11th September 1916 to 11th November 1916, his average weekly earnings for that period being 57s. 2d. It was not suggested that this did not fairly represent his average weekly earnings, and I held that it did. 3. The respondent, who is fifty-six years of age, has worked as a miner for the greater part of his working life. There was no evidence that he had previously suffered from a disabling attack of miners' nystagmus, but he stated that he had ceased working underground in 1913 because he felt his eyes troubling him. Thereafter he worked mainly above ground until he entered the appellants' pit. 4. The respondent's existing tendency to suffer from miners' nystagmus was aggravated by his employment underground for the two months preceding 13th November 1916, the date of his disablement. 5. From and after 27th January 1917 the respondent was able to earn fair wages in an employment above ground. 6. On the respondent claiming compensation the appellants' agents requested the respondent to inform them where he had been employed during the year prior to 11th November 1916. On 26th January 1917 the respondent's agents wrote giving the following information With regard to your request for information as to where he was employed for the year prior to 11th November 1916, he informs us that he was working in Loanend Colliery up to 11th November, and prior thereto in Greenfield Colliery belonging to the same company. He cannot give us the exact dates of his employment in these collieries, but informs us that in Loanend Colliery he was working to a contractor named John Watson, and in Greenfield Colliery he was working direct to the company. He thinks that he was about three months between these two collieries. Prior to that time he informs us he was employed with the Lanarkshire Tramways on the permanent way. He thinks he would be four or five weeks there. Prior to that he states he was employed as a pithead labourer with the Alloa Coal Co. Ltd. in Carnock Colliery, and he thinks he was about a fortnight there. Prior to that he was employed by Mr Jones, contractor, Larbert. He thinks he would be employed by him four or five months. Prior to that he was employed by the Plean Colliery Co. Ltd. as a pithead labourer, and thinks he would be about a month with them. Prior to that he states he was working with the Manor Powis Colliery Co. for about a fortnight as a labourer at the pithead. Prior to that he was employed by Messrs Muir Patton & Co., coal merchants, at their depot in Stirling, and thinks he would be there for about three months.’ 7. On 16th February 1917 the appellants' agent wrote in reply—‘The delay in regard to writing you as to whether or not we are to admit liability in this case is due to the inaccurate information which your client has given us. On writing to the different parties with whom he states he was employed, I find that in three instances, viz., Messrs Archd. Russell, Ld., Greenfield Colliery, Lanarkshire Tramway Coy., and the Manor Powis Coal Coy., he was not employed with these companies, that he has only been employed 17 2 3rd weeks for the year preceding the date of his disablement, and of that period he only worked nine weeks altogether underground. You might see your client and ascertain whether my information is correct.’ 8. On 21st February 1917 the respondent's agents replied—‘We have to-day seen our client and read to him your letter of 16th inst. He is quite positive that he has been employed in Greenfield Colliery, also with the Lanarkshire Tramway Co., and also with the Manor Powis Coal Co. He cannot say how long preceding the date of disablement he was employed, nor can he say definitely whether he only worked nine weeks underground during that time. Our client has now given you all the information he can, and we must ask you to let us know definitely whether you are to admit or deny liability.’ 9. The only evidence adduced on the subject-matter of this correspondence was that of the respondent and that of the appellants' cashier at Greenfield Colliery, who stated that he could find no trace of the respondent being employed there in July or August 1916. His evidence did not exclude the possibility that the respondent had been so employed. 10. The respondent is not a well-educated man, and his recollection especially of dates was not clear or accurate. He supplied the appellants with all the information he possessed on the subject.

I was of opinion (1) that as the respondent's disablement through miners' nystagmus was aggravated by the nature of his employment with the appellants immediately prior to the date of disablement he was entitled to recover compensation from them, (2) that as he was able for surface work after 27th January 1917 he was thereafter entitled only to compensation in respect of partial incapacity, (3) that as he had furnished the appellants with all the information he possessed as to his employment during the twelve months prior to the date of disablement he had fulfilled his obligation under section 8, sub-section 1 ( c), of the Act.

Accordingly on 24th May 1917 I issued my award, finding the respondent entitled to compensation of £1 per week from 13th November 1916 to 27th January 1917, and thereafter of 10s. per week.”

The question of law was—“On the foregoing facts was I entitled to award compensation to the respondent?”

To his award the Sheriff-Substitute appended the following Note:—“It is common ground that Docherty was working below ground in the respondents' Loanhead pit for some nine weeks immediately prior to the date at which his disablement is certified

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to have commenced. He is fifty-six years of age and has worked in pits for the greater part of his working life. There is no record of a previous disabling attack of miners' nystagmus, but he states that in 1913 he gave up working underground on account of his eyes, and did not resume until August 1916, working between these dates on the surface in various employments. The medical witnesses agree that if he had a tendency to miners' nystagmus it would be aggravated by nine weeks' work underground, and accordingly I reach the conclusion without difficulty that the disabling attack of 13th November 1916 was brought to a head by his work with the respondents during the preceding nine weeks.

But the respondents contend that even if this be so they are not liable, because Docherty has not furnished them with the information to which they are entitled by virtue of section 8, sub. 1 ( c), proviso (1), of the Act. Now I have no reason to believe that Docherty has not furnished the respondents with all the information that he possesses as to the names and addresses of his employers during the twelve months prior to 13th November 1916. But then it is argued that the information given is not sufficient to enable the employer to take proceedings under the next following proviso.’ The sufficient answer is that I have no evidence in support of that contention. The only evidence on the point relates to his allegation that he was employed by the respondents in another of their pits for three or four weeks immediately before he went to Loanend, and even this evidence is not conclusive against the truth of this statement. There is nothing except a complaint by the respondents' agents in their letter of 16th February 1917. But, for all I know, Docherty's account given in his agents' letter of 26th January 1917 may be correct. He is rather illiterate and does not appear to have a very good memory. Curiously enough, it may be incidentally observed, the words ‘the next following proviso,’ cannot apply to proviso (iii), which deals with diseases contracted by a gradual process.

Dr Wilson found Docherty fit for surface work on 27th January 1917, and I allow full compensation only down to that date. He has tested his earning capacity in the open market by engaging in work with Messrs Shanks & M'Ewan, with the result that in my opinion 10s. per week is an adequate award after 27th January 1917.”

On 23rd October 1917, after a hearing, the Court remitted “to the Sheriff-Substitute as arbitrator to report (1) whether the information furnished by the respondent to the appellants was sufficient to enable them to take proceedings under sec. 8 ( c) ( ii) of the statute, and if insufficient, whether the insufficiency was due to the fact that there were no employers who ‘employed him in the employment’ during the twelve months previous to the date of the respondent's disablement other than the appellants; and (2) whether the appellants proved that the nystagmus which disabled the respondent on 13th November 1916 was not contracted whilst the respondent was in the appellants' employment.”

The report of the Sheriff-Substitute was—“1. The information furnished by the respondent to the appellants was not sufficient to enable them to take proceedings under sec. 8 ( c) ( ii) of the statute in respect that it did not give full and specific details as to the employers who employed him during the twelve months previous to the date of his disablement. There was no evidence that during the said twelve months he had been employed in mining underground by any employer except the appellants. The only evidence as to the nature of his employment prior to August 1916 was that of the respondent himself to the effect that from 1913 to August 1916 he worked above ground.

2. It was proved that the respondent must have been affected by miners' nystagmus when he entered the appellants' employment, but he was not at that date disabled by it from working underground. The onset of this disease is so gradual (it being a disease contracted by a gradual process) that it is hardly possible to fix a definite date at which it can be said to have been contracted. In a man of the respondent's age who has worked below ground for the greater part of his life, the ‘gradual process’ may have begun years ago. The eye weakness which caused him to cease working underground in 1913 is evidence that by that year the disease had been contracted, and the short period during which he was able to work underground immediately before the date of disablement proves, in light of the medical evidence, that he had not completely recovered from that attack.”

Argued for the appellants—The respondent was disabled by miners' nystagmus; the certifying surgeon had not certified that that disease was not due to mining; and it had not been proved that the nystagmus was not due to mining; consequently the appeal proceeded on the footing that the nystagmus was due to mining—Workmen's Compensation Act 1907 (6 Edw. VII, cap. 58), section 8 (2), Third Schedule, and the Order of 30th July 1913. The only question was as to the employer who was liable to pay compensation. Prima facie the liability to pay compensation rested on the appellants, for they last employed the respondent in mining in the twelve months before his disablement—section 8 (1) ( c). But the nystagmus had not been contracted in the employment with the appellants, and the respondent had not furnished the appellants with information sufficient to enable them to take proceedings under section 8 (1) ( c) (i). The appellants were therefore free from liability to pay compensation—Section 8 (1) ( c) (i). The general policy of the Act was to assimilate industrial diseases to accidents; disablement due to an industrial disease was treated as a personal injury by accident—section 8 (1). As at the date of disablement a right to compensation emerged, and from that date the period of a year was calculated, within which any of the employers of the workman in the

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trade to which the nature of his disease was due might be found liable in compensation. But the question as to which of the employers was liable depended upon the contraction of the disease, not necessarily upon disablement. If the appellants had not been mine owners, though disablement took place while the respondent was in their employment, liability to pay compensation would not have rested on them, but prima facie would have rested on the last employer of the workman as a miner. It so happened that the appellants were mine owners, but they were entitled to be relieved of liability if they proved that the nystagmus had not been contracted in their employment. They had in fact so proved, and therefore the disease must have been contracted with another employer. That being so, the respondent had failed to furnish the appellants with sufficient information to enable them to take proceedings under section 8 (1) ( c) ( ii), and accordingly the appellants were not liable—section 8 (1) ( c) (i). The limitation as to a year before the date of disablement was not to be read into section 8 (1) ( c) ( ii), and under that proviso the employer would go back and throw the liability to pay compensation on persons who employed the workman more than a year before the date of disablement. Further, that proviso applied to all the diseases in the Third Schedule as amended, whether contracted by a gradual process or not— Mallinder v. Moons & Sons, Limited, [1912] 2 KB 124. Proviso (iii) further differed from proviso (ii) in respect that if one employer was found liable in compensation he could sue in a separate process the other employers in the year, and get relief from them.

Argued for the respondents—The question of law should be answered in the affirmative. The case fell only under proviso (i), and under that proviso the appellants were liable. They were the last employers of the respondent in mining, and they could only escape liability if the respondent failed to give them the names and addresses of all the other employers who had employed him in “the employment” during the twelve months before disablement, or if the information given was not sufficient to enable the appellants to take proceedings under proviso (ii). The employment was mining, and accordingly the only obligation on the respondent was to give information as to the names and addresses of those who employed him in mining during the year. Further, the object of that proviso was to penalise a workman who withheld information he possessed, which if disclosed would be sufficient to enable the employers to get rid of the liability to pay compensation. But here the workman had given all the information he possessed; in actual fact that was not sufficient to enable the respondents to free themselves, but there was no obligation on the respondent to provide a substitute employer, but only to give such information as he had— M'Taggart v. William Barr & Sons, Limited, 1915 S.C. 224, 52 S.L.R. 125. The twelve months' limitation was necessarily carried into proviso (ii), for the leading provision of section 8 (1) was to fix the liability to pay compensation on one or other of the employers in the trade in question within twelve months of the date of disablement, and “proceedings under the next following proviso” could only be against one or other of the employers within the year. Further, the liability to give information was expressly limited to the employers within the twelve months.

At advising—