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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Smith v. William Beardmore & Co., Ltd [1921] ScotLR 94 (10 December 1921)
URL: http://www.bailii.org/scot/cases/ScotCS/1921/59SLR0094.html
Cite as: [1921] ScotLR 94, [1921] SLR 94
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SCOTTISH_SLR_Court_of_Session
Page: 94↓
Court of Session Inner House Second Division.
v.
Master and Servant — Sunday Labour — Act 1579, cap. 70.
Facts:
Held that the Act 1579, cap. 70, prohibiting Sunday labour, did not apply to a watchman's job which involved Sunday work so as to render the job one which a partially disabled workman claiming compensation under the Workmen's Compensation Act 1906 was not bound to accept.
Question whether the Act 1579, cap. 70, is in desuetude.
Michael Smith, labourer, Baillieston, appellant, being dissatisfied with an award of the Sheriff-Substitute at Glasgow ( Blair) in an arbitration under the Workmen's Compensation Act 1906 (6 Edw.VII, cap. 58) between him and William Beardmore & Company, Limited, Parkhead, Glasgow, respondents, appealed by Stated Case.
The facts proved were as follows:—1. That Michael Smith, the workman in this case, aged (fifty-six, a labourer, was injured in the course of his employment with the respondents on 1st October 1918 by a howitzer wheel which he was rolling falling upon his left hand and crushing it so severely that the thumb and part of the first finger were amputated in the Royal Infirmary. 2. That his average weekly wages prior to the accident were £4, 12s. 3d. 3. That he received full compensation from date of accident (1st October 1918) till 19th February 1921, when it was stopped—a period of two years and four months. 4. That for some months previous to 19th February 1921 he had sufficiently recovered to be able to earn good wages at a light job. 5. That on several occasions prior to 19th February 1921 his employers offered him a light job as watchman with a weekly wage of £4, 3s. 10d., which he refused and still refuses to accept. 6. That he is and has been able to do such a job without any difficulty. 7. That his refusal is unreasonable in respect that his attitude all along and now is one of insisting upon his claim being settled for a lump sum out of all proportion to the injury received and his present capacity to earn good wages. 8. That if he had been able to resume full work as a labourer his present wage would not have amounted to more than £3, 13s. 1d. per week. 9. That the job offered to the appellant as watchman was a seven-shift job, which involved working on Sundays, that he stated that he was willing to accept the job if it was reduced to six shifts involving no Sunday work, that it was proved that he had worked overtime at his own job before the accident on week days and also on Sundays, that there are no watchman's jobs of six shifts to offer.
“Accordingly on 30th May 19211 issued an award reducing the compensation to appellant as and from 19th February 1921 till the further orders of Court to the sum of 4s. 3d. a-week, being 50 per cent. of the difference between his former wage and the wage he is now offered. I awarded said sum accordingly, and found it unnecessary to record the memorandum of agreement of date 17th June 1920.”
Note.—“I need not say very much about this case, which is one of the most unusual I have ever known. The claimant undoubtedly met with a severe accident, and his left hand is permanently maimed. He has drawn full compensation for two years and four months, has never looked for work, and has apparently little intention of doing so. He is quite able, and has been so for some time, to do a light job at pushing or pulling. A watchman's job is ideal. He is in robust health—nothing the matter with him except this injury to his hand, which has healed, and which admittedly can never be so useful at it was. He has been offered a watchman's job by the defenders repeatedly, but he will not accept it, holding out for a settlement in cash. He began by asking £700, the defenders offered £150, and there that matter rests in the meantime. They still offer that amount, and in addition are, I understand, willing to give him the watchman's job. I think his attitude is unreasonable. At £4, 3s. 10d. he is better off than if he had completely recovered and been able to go back to a labourer's job, whose wage is now £3, 13s. 1d. He says he has conscientious objections to a seven-shift job, but there are no watchman's jobs of six shifts. It is easy, light, and healthy work, no labour. When he was making his big wage before the accident he had no scruples about working overtime and on Sundays. In fact he worked on an average 95 hours a-week, all to his advantage, as it fixes a very high wage for him in this case. Now he will not work for more than 45 hours a-week. It is facts, not conscientious objections, that are applicable in Workmen's Compensation cases. In my opinion the employers are entitled to have this compensation reduced, and the sooner he accepts the offer of a good job like this the better.
“There is not a scrap of justification for Mr Leechman's suggestion that the defenders have been harsh to this man, and that
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their methods in bringing about this review are not straightforward. On the contrary, they have treated the claimant very generously, and the procedure of stopping payment when they thought he had been off work long enough, his presenting the memorandum for recording, their objections thereto, and alternative crave for review, is the ordinary and proper method of raising the issue between the parties.” The question of law was—“On the facts stated was the Sheriff-Substitute justified in assessing compensation at the rate of 4s. 3d. per week?”
Argued for the appellant, inter alia—The job offered to the appellant was not one which he could be expected or was bound to accept—Act 1579, cap. 70. The Act was not in desuetude and it was immaterial whether or not prosecutions could be brought under it— Middleton v. Paterson, (1904) 6 F. (J.) 27, 41 S.L.R. 256; Macrorie v. Forman, (1905) 8 F. (J.) 23, 43 S.L.R. 63, were referred to.
Argued for the respondents, inter alia—The Act did not strike at the Sunday work of a watchman. Such work was a “work of necessity,” since it was for the preservation of property.
[ His Lordship dealt with a matter of procedure.]
One special point was raised by the appellant in argument, founded on the old Scots Acts as to Sabbath observance, and indeed this was the only point argued on what I may call the merits of the case. It seems still unsettled whether these old statutes are not in desuetude, but I do not think they would apply to such employment as that of a watchman. To hold otherwise would seem to imply that modern legislation as to factories was in several respects unnecessary so far as Scotland is concerned, e.g., The Factory and Workshop Act 1901 (1 Edw. VII, c. 22), sec. 34.
In my opinion the question put to us should be answered in the affirmative.
The main facts, which are narrated under nine separate heads, are—that the appellant met with an accident which resulted in the thumb and part of the first finger of his left hand requiring to be amputated; that for several months prior to 19th February 1921 he had sufficiently recovered to be able to earn good wages at a light job and had been offered employment as a watchman with a weekly wage of £4, 3s. 10d., and that he was quite fit to do such a job without any difficulty. If there were nothing else in the findings, it appears to me perfectly plain that the workman was no longer entitled to receive compensation as for complete incapacity, and that as he was being offered a wage within 8s. 6d. weekly of the average wages which he received before the accident, the arbitrator was entitled to award compensation at a weekly rate within that figure, and unless he acted entirely unreasonably that his award on the subject Was final.
The appellant, however, maintained that as it appears from the subsequent findings that the job he was offered involved working on Sundays, he was not bound to accept a job of that kind on the ground that there are still on the statute book certain old Acts of Parliament which make Sunday work illegal. It is true that these Acts have been held for some purposes not to be in desuetude, but it is certain that they have been to a large extent disregarded in actual practice, and there are many forms of occupation to which they never had any application, as, for instance, domestic service, and also such work on a farm as is required in the care of animals. We know also that in other forms of service, such as railway and tramway services, the Acts are not capable of being enforced, as it would be against the public interest to do so. And I think that the same may be said of such occupations as that of a watchman, for it is part of the arbitrator's finding that there are no watchmen's jobs which do not involve Sunday labour. In this particular case the arbitrator has found that the appellant used to work overtime at his own job before the accident on Sundays, and, further, that his refusal to accept a watchman's job is unreasonable in respect that his attitude has all along been one of insisting upon his claim being settled for a lump sum out of all proportion to the injury received. In these circumstances I think the arbitrator was well warranted in coming to the conclusion which he did, although our primary function is not to consider whether we should have reached the same conclusion, but only whether there were facts before him on which he could reasonably reach it. Incidentally I may say that I should be very
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On the whole matter I am satisfied that the appellant has no valid ground to complain of what has been done by the arbitrator, and that we ought to answer the only question of law that is formally presented for our opinion in the affirmative.
The matters I have referred to are not mentioned in the Stated Case as matter of appeal, the only question submitted for our opinion being—“On the facts stated was the Sheriff-Substitute justified in assessing compensation at the rate of 4s. 3d. per week?” The facts stated amply warrant an answer in the affirmative. I refer to only one of the points made for the appellant. The job offered to the workman is that of a watchman. The job is a seven-shift job and involves working on Sundays. Founding on the old Scots Acts as to Sunday observance it was maintained that such a job was not one which a workman could be expected or was at any rate bound to accept. Assuming that these ancient statutes are not in desuetude I agree with your Lordship that whatever of vital and operative force may be left in them has no application to work of the nature offered to the appellant.
The Court answered the question in the affirmative.
Counsel for the Appellant— Mackay, K.C.— Gentles, K.C.— Aitchison. Agents— W. G. Leechman & Company, Solicitors.
Counsel for the Respondents—Dean of Faculty ( Constable, K.C.)— Graham Robertson. Agents— Morton, Smart, Macdonald, & Prosser, W.S.