Scottish Court of Session Decisions

James Nimmo & Company, Limited, Auchengeich Colliery, Chryston, appellants, presented a Stated Case under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) against a decision of the Sheriff-Substitute ( Mackenzie) at Glasgow granting an application by Patrick C. M'Alinden, miner, 64 Annathill Terrace, Glenboig, respondent, for an increased rate of weekly payment as compensation for injuries sustained in an accident arising out of and in the course of his employment. The arbitrator had increased the weekly payment of compensation from 10s. 3d. to 15s.

The Case stated—“This is an arbitration under the Workmen's Compensation Act 1906 brought in the Sheriff Court of Lanarkshire at Glasgow, the circumstances of which are as follows:—Arbitration proceedings were brought in said Court by the respondent for the purpose of obtaining an award of compensation under said Act in respect of an accident to the fingers of his right hand. On 17th November 1916 the application was heard by me and proof was led before me along with the medical assessor, when I found the following facts to have been established:—(1) That the respondent is a miner and resides at 64 Annathill Terrace, Glenboig, and that the appellants are coalmasters carrying on business at 21 Bothwell Street, Glasgow, and owning and working Auchengeich Colliery, Chryston. (2) That the respondent on 24th June 1915, while in the employment of the appellants sustained injury by accident arising out of and in the course of his said employment by having three fingers of his right hand crushed between a hutch and the roof, by which accident he was incapacitated from work. (3) That the appellants admitted liability for said accident and paid to the respondent in respect thereof compensation under the Workmen's Compensation Act 1906 at the rate of 19s. per week up to 4th November 1915. (4) That at the last-mentioned date the respondent endeavoured to resume work of a lighter kind, and was put by the appellants to work in a timber yard, where he worked eight shifts, but that the appellants' foreman, on the allegation that he was not working sufficiently with his right hand, dismissed him from their employment; that he again in February 1916 tried to work in the bricklaying department, but found that he was unable to continue; that during this period the respondent would have been able to do work of a light kind not requiring grasping power in the right hand, but that such work was not offered him by the appellants, although it might have been obtained. (5) That the respondent was paid compensation at the rate of 10s. 3d. per week from 4th November 1915 till 29th January 1916, when the compensation was stopped. (6) That the respondent remained in practically the same condition

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until 24th June 1916, when he was examined by Dr M'Gregor, who recommended an operation on the injured fingers; that this operation was carried out on 1st September 1916, and that during that period the respondent was not in a condition to work and did not recover his capacity for light work until about the 15th of October 1916; that since then the respondent has been capable of light work or such as a one-armed man may perform. (7) That during the period from 29th January 1916 until 24th June 1916 the respondent was in the condition of being able for light work; that from 24th June 1916 until 15th October 1916 he was unfit for any kind of work; and that from 15th October 1916 he had been able for light work or such as a one-armed man might perform.

I found in law that compensation at the rate of 10s. 3d. per week was due by the appellants to the respondent from 29th January 1916 until 24th June 1916, and at the rate of 19s. per week from 24th June 1916 until 15th October 1916, and thereafter at the rate of 10s. 3d. per week.

I accordingly on 7th December 1916 awarded said compensation until the further orders of the Court, and found the appellants liable in expenses. …

On 14th February 1917 an application for review of said award of 7th December 1916, herein before narrated, was brought by respondent. Said application for review craved the Court—To review as at 5th January 1917, or such other date as to the Court might seem fit, the award of the arbitrator of date 7th December 1916, and to increase the compensation payable to respondent under and in terms of said award by such amount as to the Court might seem fit in respect that since said 5th January 1917 the appellants had refused or delayed to give the respondent suitable employment, and although he had endeavoured to obtain suitable employment in the district in which he was employed, had failed to find same owing to the condition of his right hand, and in particular that the respondent had applied for and failed to obtain suitable work in view of his said condition at the following places:—(1) Auchengeich Colliery, Chryston; (2) Bedlay Colliery, Glenboig; (3) Avenue Sand Works, Glenboig; (4) Glenboig Union Fireclay Works, Glenboig; and (5) Hurll's Garliston Works, Glenboig. The case was heard and proof led on this date May 9, 1917. At the close of the proof respondent's agent restricted respondent's claim to a claim for review as at the date of proof instead of as at 5th January 1917. I found, under reference to the findings herein before narrated in my said award of 7th December 1916, that there had been no change of the physical condition of the respondent (whose right thumb, ring and little fingers are normal), but that since the date of said award he had made various applications to the appellants and to other employers for work such as could be done by him in his then condition; that these applications were made on the following dates, viz.—At Auchengeich Colliery on 5th January, 16th February, and 20th April; at Bedlay Colliery on 9th February; and at Avenue Sand Works, Glenboig Union Fireclay Works, and Hurll's Garliston Works on 14th or 15th February 1917; that none of these applications had been successful, for the reasons either that there was no such vacancy open at the time, that the condition of his hand prevented him being employed at heavy work which he might have obtained at Avenue Sand Works, or that a preference would be given, in the case of injured men, to men who had been injured in the works to which application was made; that it was not proved that the respondent had completely exhausted his chances of employment, or that it was impossible for men in his physical condition to obtain employment; that an offer was made by the appellants on the day on which proof was led to employ the respondent, but that it was not proved that the work proposed, which was of a temporary kind, was such as the respondent could perform.

I found in law that the respondent was not entitled to the full measure of compensation as for total incapacity, but that in view of the difficulty of his finding employment, which is attributable to the nature of his personal injury, he was entitled to an increase in the rate of compensation for partial incapacity formerly allowed. I therefore on 6th June 1917 increased the said weekly payment of compensation as from said date to the sum of 15s., and found the appellants liable to the respondent in the expenses of process subject to modification.”

The arbitrator appended the following note to his award of 6th June 1917:—“This application is somewhat difficult to deal with in view of the fact that a comparatively short time has elapsed since the last finding of the Court, and there has been no change of the pursuer's (respondent's) physical condition. It is, however, competent to take into account facts which may be proved in the way of showing that that physical condition is such that after repeated and genuine efforts to obtain employment the pursuer (respondent) has been unsuccessful. There is more here than the condition of the labour market, which, indeed, at the present time may be said to be favourable to his chances. His injury is undoubtedly in some cases directly the cause of his nonsuccess, and in the same cases indirectly through restricting the kind of jobs which he could undertake. That such employment may possibly be found is, I think, quite clear, but no vacancy has occurred, except, apparently, the somewhat belated offer made on the day of the proof, and the suitability of which is an open question. I do not think the pursuer (respondent) has yet exhausted all his chances, but I am satisfied that the difficulties in his case have proved exceptional, and that these are attributable to his injury. I therefore think an increase may be allowed in the circumstances.”

The question of law was—“Whether there was evidence upon which the arbitrator could competently increase respondent's

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compensation from 10s. 3d. per week to 15s. per week as from 6th June 1917?”

Argued for the appellants—The question of law ought to be answered in the negative. The import of the Sheriff-Substitute's findings was that, there being no change in the respondent's physical condition, it was clear to the arbitrator that the respondent had not, in the limited course of his inquiries, exhausted all the possibilities for obtaining employment that were open to him. He had only made inquiries for work at five places, and these were places at which he was least likely to find employment suitable to his physical capacity. To “get work” meant to get “suitable work” for a man according to the extent of his injuries or the degree of his incapacity. There was a great difference between a mere difficulty in finding work and an absolute inability to do so. It was a question of degree. The arbitrator was not justified in making the increased award. The onus was laid upon the respondent of proving his inability to obtain work and this onus had not been discharged. The arbitrator had stated no finding to this effect or that such inability was due to the respondent's physical incapacity. In the case of Duris v. Wilsons and Clyde Coal Company, Limited, 1912, S.C. (H.L.) 74, 49 S.L.R. 708, the workman could, in consequence of his injuries, get no work at all. Counsel also referred to Sharman v. Holliday, [1904] 1 KB 235; Ball v. Hunt, [1912] AC 496, 1912 S.C. (H.L.) 77, 49 S.L.R. 711; and Crossfield & Sons v. Tanian, [1900] 2 QB 629.

Argued for the respondent—The question of law ought to be answered in the affirmative. The arbitrator had, after proof, been satisfied that the respondent had made genuine efforts to obtain suitable employment without success. If a workman's earning capacity had been diminished he had a relevant ground for obtaining compensation, and the Sheriff-Substitute had in the present case found such a relevant change of circumstances. Counsel cited the cases of Sharman v. Holliday ( cit.); Ball v. Hunt ( cit.); and Dyer v. Wilsons & Clyde Coal Company, 1915 S.C. 199, 52 S.L.R. 114.

At advising—