Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) First Schedule (3), enacts—“In fixing the amount of the weekly payment regard shall be had to any payment, allowance, or benefit which the workman may receive from the employer during the period of his incapacity, and in the case of partial incapacity the weekly payment shall in no case exceed the difference between the amount of the average weekly earnings of the workman before the accident and the average weekly amount which he is earning or is able to earn in some suitable employment or business after the accident, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper.”

An arbitration was held in the Sheriff Court of Lanarkshire at Hamilton between William Quilter, miner, 118 Main Street, Shotts, appellant, and the Kepplehill Coal Company, Limited, respondents, to determine the rate of compensation payable to the appellant in respect of partial incapacity due to injuries by accident arising out of and in the course of his employment with the respondents. The appellant being dissatisfied with the decision of the Sheriff-Substitute ( Shennan) appealed by Stated Case.

The facts as stated in the Case were as follows—“(1) That on 26th May 1920 the appellant was engaged in the respondents' employment as a coal miner at Stane Pit, Shotts; (2) that on said date he sustained injuries to his right hand by accident arising out of and in the course of said employment, whereby he was for a time totally incapacitated and is at present partially incapacitated; (3) that the respondents paid the appellant full compensation during the period of his total incapacity, and thereafter 15s. per week in respect of partial incapacity down to 5th February 1921; (4) that the respondents were and are willing to continue payment of compensation at the rate of 15s. per week from said 5th February, but the appellant claims that he is entitled to a higher rate of compensation.”

The Case further stated—“The sole ground on which the appellant claims an increase in the rate of his compensation is that since 5th February 1921 the respondents ‘refuse to make payment of compensation reasonable and adequate in the circumstances having in view the fact that since 31st January 1921 there has been a general reduction of wages to the extent of at least 2s. per shift.’

I heard parties' agents on 10th May 1921, and on 16th May 1921 I issued an opinion in which I found that the appellant had not set forth relevant grounds for asking review of compensation. On 27th May 1921 I dismissed the appellant's application.

I was of opinion that a general fall in the rate of wages did not in itself constitute a change of circumstances which justified the appellant in demanding that his rate of compensation should be increased. I held that the requisite change of circumstances must be one personal to the workman, and not merely a general economic change affecting him in common with uninjured workmen.”

The questions of law for the opinion of the Court included the following—“2. Was I right in holding that the appellant had not set forth relevant grounds for asking review of compensation?”

The arbitrator appended the following note to his award Although in form an original application, this is really a case in which the workman seeks review of the weekly compensation payable to him. He

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was injured on 26th May 1920, and the employers paid him first full compensation in respect of total incapacity, and then compensation of 15s. per week in respect of partial incapacity. No payment has been made since 5th February 1921, but the employers have offered and are willing to continue payment of 15s. per week since the date of last payment. The workman, however, claims increase of the compensation to £1 per week. The sole ground on which he basis this claim is ‘the fact that since 31st January 1921 there has been a general reduction of wages to the extent of at least 2s. per shift.’ There is no other averment of change of circumstances. He does not say that on account of his incapacity he personally is affected by that reduction more than his uninjured fellow-workers.

In my opinion this averment does not narrate a change of circumstances such as to justify an application for review of compensation. The key to the decision is found in a passage in Lord Shaw's opinion in Ball v. William Hunt & Sons, Limited, [1912] AC 496 (reported also in 1912 S.C. (H.L.) 77—‘It is necessary to keep clearly in view in such cases the distinction between inability to obtain work arising as the result of the injured or disfigured condition of the workman, and inability to obtain work arising from the state of the labour market. It does notappear to me to be any part of the scheme of the statute to make the employer liable for a non—employment which is owing to general economic causes. The non-employment, as I say, must be connected with the injury which has been received and with the incapacity for work which has been thereby produced. Even treating that incapacity as inclusive of the case of the impossibility or improbability of obtaining work, as well as of doing it, that impossibility or improbability must be traceable to the thing which has differentiated this workman from his other able-bodied comrades, namely, the injury received.’ For ‘work’ in this passage substitute ‘wages,’ and the irrelevancy of the present claim becomes clear. The statute does not contemplate that all existing rates of compensation in respect of partial incapacity shall be reviewed at the instance of either party on every occasion of a rise or a fall in the rate of wages. But that would be the effect if the workman's contention in this arbitration received effect.

Of course, if the workman once gets into a review, a rise or a fall in the rate of wages is one of the circumstances which fall to be considered. But before he can get so far he must aver some relevant change in his circumstances since the existing rate was fixed, and not merely a general economic change which does not affect him personally in any other way than it affects his uninjured fellow-workman. Carried to its logical issue, the workman's argument would entitle him to full compensation in respect of partial incapacity during the present stoppage of the coal industry.

As the parties may wish to take advantage of this application in order to obtain an award, I have sent the case to the roll before disposing of it finally.”

The appellant cited the following cases in argument— M'Neill v. Woodilee Coal and Coke Company, 1917 S.C. 260, 54 S.L.R. 208, affd. 1918 S.C. (H.L.) 1, 55 S.L.R. 15, per Lord Justice-Clerk (Scott Dickson) at 1917 S.C. 262, 55 S.L.R. 210; Tarr v. Cory Brothers & Company, [1917] 2 K.B. 774, per Swinfen Eady, L.J., at 776; Ball v. William Hunt & Sons, Limited, [1912] AC 496, 1912 S.C. (H.L) 77, 49 S.L. R. 711; Colquhoun v. Woolfe, 1912 S.C. 1190, 49 S.L.R. 911; Bevan v. Energlyn Colliery Company, [1912] 1 KB 63.

The following authorities were cited by the respondents— Kear v. Shelton Iron, Steel, and Coal Company, 1921, 14 B.W.C.C. 123, per Lord Sterndale, M.R., at p. 125; Malcolm v. Thomas Spowart & Company, Limited, 1913 S.C. 1024, 50 S.L.R. 823, per Lord Kinnear at 1913 S.C. 1032, 50 S.L.R. 827, and Lord Mackenzie at 1913 S.C. 1034, 50 S.L.R. 828; Ball v. Hunt, cit., per Lord Macnaghten at 1912 A.C. 501, 1912 S.C. (H.L.) 78, and 49 S.L.R. 711, Lord Atkinson at 1912 A.C. 504, 1912 S.C. (H.L.) 80, 49 S.L.R. 713, and Lord Shaw at 1912 A.C. 506 and 509, 1912 S.C. (H.L.) 82 and 84, 49 S.L.R. 713 and 715; Cardiff Corporation v. Hall, [1911] 1 KB 1009, per Moulton, L. J., at 1017, and Buckley, L.J., at 1026; Radcliffe v. Pacific Steam Navigation Company, [1910] 1 KB 685, per Cozens-Hardy M.R. at 688–9.