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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Neilson v. The Farme Coal Co. (1915), Ltd [1919] ScotLR 286 (08 March 1919)
URL: http://www.bailii.org/scot/cases/ScotCS/1919/56SLR0286.html
Cite as: [1919] SLR 286, [1919] ScotLR 286
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SCOTTISH_SLR_Court_of_Session
Page: 286↓
Court of Session Inner House First Division.
[Sheriff Court at Glasgow.
v.
Facts:
In an arbitration under the Workmen's Compensation Act 1906 the arbitrator, in respect that the appellant's incapacity, due to injuries resulting in the loss of his left eye, had ceased, terminated the compensation. In a stated case for appeal he stated that no evidence was led before him to the effect that the workman's wage-earning capacity in the open market would be prejudicially affected on account of the injury sustained by him, and that no motion was made for a suspensory order. At the hearing on the appeal the appellant moved the Court to remit the case to the arbitrator in order that he might submit to his consideration the propriety of pronouncing a suspensory order. The Court ( dub. Lord Cullen), on condition of the workman paying the expenses of the stated case within eight days, remitted the case to the arbitrator to consider whether in view of the fact that the workman was a one-eyed man, the compensation ought to be ended or suspended.
Mulligan v. Corporation of Glasgow, 1917 S.C. 450, 54 S.L.R. 352, followed.
Page: 287↓
James Neilson, appellant, being dissatisfied with a decision of the Sheriff-Substitute at Glasgow ( Craigie) in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) between the appellant and the Farme Coal Company (1915), Limited, respondents, appealed by Stated Case.
The Case stated—“The following facts were admitted:—1. That the appellant James Neilson, aged forty-eight, is a miner, and that he as such was prior to 22nd December 1917 in the service of the respondents, who are coalmasters and work the Farme Colliery, Rutherglen, his average weekly earnings being £3, 5s. 2. That on 22nd December 1917 the appellant sustained an injury to his left eye by accident arising out of and in the course of his employment with the respondents at said colliery. 3. That in respect of said injury the respondents paid the appellant compensation at the rate of £1 per week up to and including 7th May 1918, in respect of his total incapacity for work, and thereafter at the rate of 15s. per week up to and including 6th August 1918 in respect of partial incapacity, since which latter date the respondents have ceased to make any payment to him.
I further found it proved—4. That the appellant has excellent vision in his right eye, and although he is not altogether blind in his left eye, still he falls to be regarded as a one-eyed man, and as such fit for work below ground like any other one-eyed miner. 5. That the appellant resumed work as a miner in the end of July 1918, but worked at the coal face so irregularly that he gave himself no fair chance of getting rid of any inconvenience he might have had at first in working with one eye. 6. That the appellant does not suffer from nystagmus. 7. That there was no cause, physical or mental, attributable in any way to his injury, why the appellant should not have worked regularly underground after he resumed work in the end of July 1918, and that if he had done so he would have been able by 6th August 1918 to have done the full work of a miner, and his incapacity as the result of his injuries would have ceased not later than that date. 8. That no evidence was led before me to the effect that the wage-earning capacity of the appellant in the open market would be prejudicially affected on account of the injuries sustained by him on 22nd December 1917, and that no motion was made that in the event of my refusing to award compensation to the appellant I should pronounce a suspensory order.
I therefore refused the prayer of the petition and ended the compensation payable by the respondents to the appellant as at 6th August 1918.”
The question of law was—“Was there evidence upon which the arbitrator could competently end the compensation payable to the appellant as at 6th August 1918?”
Argued for the appellant—The case should be remitted back to the arbitrator to pronounce a suspensory order. The respondents had merely discharged the onus upon them to the extent of showing that no compensation should be paid now, but they had also to show that the cessation of compensation should be permanent. The arbitrator's decision was issued when the parties were not present, and accordingly they could not be held barred for failure to ask for a suspensory order. The cases of Dempsey v. Caldwell & Company, Limited, 1914 S.C. 28, 51 S.L.R. 16, and Mulligan v. Corporation of Glasgow, 1917 S.C. 450, 54 S.L.R. 352, were exactly in point and should be followed. The present question was one of procedure on which English authorities were no guide, but in any event they supported the appellant's motion— Wright v. Sneyd Collieries, Limited, 1915, 8 B.W.C.C. 537; Chapman v. Sage & Company, Limited, 1915, 8 B.W.C.C. 559.
Argued for the respondents—There was no general rule that a one-eyed miner was always entitled to a suspensory award; such a rule would be inconsistent with Hargreave v. Haughhead Coal Company, Limited, [1912] AC 319, 49 S.L.R. 474. The question of whether a suspensory order should be pronounced or not was one of circumstances for the arbitrator to decide. It was a question of fact, on which the arbitrator's decision was final— Jones v. Anderson, 1914, 8 B.W.C.C. 2; M'Ghee v. Summerlee Iron Company, Limited, 1911 S.C. 870, 48 S.L.R. 807. Evidence should have been given before him, and a motion such as the present made. If that was not done before the arbitrator, it was incompetent to raise the question in the Appeal Court— Harlock v. Owners of s.s. “ Coquet,” 1914, 7 B.W.C.C. 88; Henshaw v. Fielding, 1914, 7 B. W. C. C. 650. [ Lord Mackenzie referred to Jackson v. Hunslet Engine Company, Limited, 1915, 8 B.W.C.C. 584, 9 B.W.C.C. 269.]
At advising—
It appears that the effect of the accident was to deprive the appellant entirely of the sight of his left eye, so that he is now a one-eyed miner. And accordingly it was competent to him, had he been so minded, to submit to the arbitrator the question whether the compensation, instead of being permanently ended, ought not to have been temporarily ended. In other words, he might have, had he chosen, submitted to the arbitrator's consideration the propriety of pronouncing what has been called a suspensory order. But it was explained to us that owing to an oversight he omitted to submit that question, and we were moved to give him now an opportunity of doing so. It is very late in the day to make this motion, but I think it may be granted. The case of Mulligan,
Page: 288↓
It was apparent from the argument addressed to us on behalf of the workman that there had been an omission before the arbitrator, and in that view it is evident that unless the course which your Lordship proposes is adopted the workman here will be prejudiced. It appears to me, on the statement of the case to us, that those representing the workman were themselves entirely to blame for the omission to take the point, which they now desire the arbitrator to consider, at the proper stage. But on condition that the workman pays the whole expenses down to date I think that an order similar to that pronounced in the cases of Dempsey, 1914 S.C. 28, 51 S.L.R. 16, and of Mulligan, 1917 S.C. 450, 54 S.L.R. 352, may be made.
It is evident that if the findings had concluded with the 7th article in the case the answer to the question could only be one way. My difficulty has arisen because there is this difference between the case of Mulligan and the present—in Mulligan's case we proceeded upon the view that the arbitrator had before him only two alternatives, viz., to grant the application or dismiss it, and that he did not have in view at all the via media of the suspensory order. The learned arbitrator in this case, in the 8th article, has plainly shown that the via media was not absent from his consideration, because he specially adverts to it for the purpose of stating that there was no evidence and no motion made before him in order to get his judgment upon the question whether there should be a suspensory order. The question whether or not there should be a suspensory order is a question of fact for the arbitrator. But I think that in all cases where there is, as here, a one-eyed man it is highly desirable that there should always be an express finding, yes or no, whether in the opinion of the arbitrator, in consequence of his physical injury, the man's earning capacity in the open market has been affected or not.
The appellant, however, moves that the Court should avoid or suspend its statutory function of adjudicating on this question duly presented, and instead thereof should remit the matter back to the arbitrator in order that the appellant may supplement the case he formerly made by presenting for the arbitrator's determination a question which he did not formerly raise, namely, whether it is not suitable to the circumstances, when more fully ascertained, that there should be a suspensory order instead of a final determination of his right to compensation. In the proceedings before the arbitrator, out of which the Stated Case arises, the appellant, in opposition to the employer's claim that the compensation should be finally determined, confined himself to maintaining that it should be continued. He did not lead evidence which he might have led, and now considers he should have led, directed to the particular question of the propriety of a suspensory order being made in the event of the arbitrator negativing his claim for a continuation of compensation, nor did he raise at all the topic of such an order. He pleads no mistake or excuse for his omission. He desires, however, an opportunity of correcting that omission, including the leading of new evidence before the arbitrator directed to found his hitherto unstated contention, which evidence his counsel stated he would offer in the event of a remit being made.
If it is proper to make the remit which the appellant asks, it seems difficult to avoid the conclusion that in every case where a party to a duly presented Stated Case under the statute, which is accurate and complete in its findings of fact and affords no ground for saying that the arbitrator has erred in refusing or wrongly omitting to deal with any question presented for his determination, finds himself out of Court because he has not presented some possible head of his case, in evidence or contention, before the arbitrator, it is proper to repone him by a remit which will afford him an opportunity of making good his omission, somewhat on the analogy drawn from ordinary actions of allowing amendments of the record and such new procedure as the amendments may lead to.
I am unable to avoid a doubt whether under the jurisdiction given to the Court to determine questions of law duly presented in stated cases, it is competent to the Court, instead of determining a question which has been duly presented, thus to
Page: 289↓
The appellant, however, founds on the case of Mulligan v. Corporation of Glasgow, 1917 S.C. 450, 54 S.L.R. 352, which followed the case of Dempsey v. Caldwell & Company, 1914 S.C. 28, 51 S.L.R. 16. I am unable to find any material distinction between the case of Mulligan and this one with reference to the present question. Accordingly, subject to the doubt which I have ventured to express, I recognise that the case of Mulligan forms a precedent for making the remit which your Lordships propose.
The Court pronounced this interlocutor—
“On consideration that the appellant intimates to the respondents within eight days that the whole expenses of the Stated Case on appeal will be paid by him, hoc statu recal the determination of the Sheriff-Substitute as arbitrator appealed against, and remit to him, in view of the finding that the claimant ‘although he is not altogether blind in his left eye, still he falls to be regarded as a one-eyed miner, and as such fit for work below ground like any other one-eyed miner,’ to consider and decide whether the ending of the payments should be permanent or temporary. …”
Counsel for the Appellant— Chisholm, K.C.— Gentles. Agent— E. Rolland M'Nab, S.S.C.
Counsel for the Respondents— Sandeman, K.C.— Carmont. Agents— W. & J. Burness, W.S.