Scottish Court of Session Decisions

Edward Fallens, miner, 237 Glasgow Road, Blantyre, appellant, being dissatisfied with a decision of the Sheriff-Substitute at Hamilton ( Hay Shennan) in an arbitration under the Workmen's Compensation Act 1906 between him and William Dixon, Limited, respondents, appealed by way of Stated Case.

The Case stated, inter alia—“This is an arbitration on an application by the appellant presented on 4th December 1922 asking for an increase in the weekly rate of compepsation payable to him.… I heard parties

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on 19th December 1922, when the following facts were admitted 1. On 19th May 1920 the appellant sustained injuries by accident arising out of and in the course of his employment as a miner in the respondents' No. 4 Dixon's Colliery. The respondents admitted liability and satisfied his claim for compensation to 15th August 1921. 2. Thereafter the parties disagreed on the question whether in the circumstances the appellant was for the time being entitled to any compensation in respect of partial incapacity, and on 30th March 1922 arbitration proceedings were initiated before me. The appellant besides working as a miner had acted as part-time deputy check-weigher. I held that these were concurrent contracts of service, and on 29th May 1922 I issued my award finding the appellant entitled to compensation of 2s. per week in respect of partial incapacity. I found (1) that his average weekly earnings prior to the accident were £3, 10s. 4d.; (2) that if he had completely recovered from his accident on 15th August 1921 he could have earned at his two former occupations about £2, 12s. during the period between August 1921 and May 1922, although in May 1922 the amount would have been slightly smaller; and (3) that during that period he was actually earning £2, 8s. per week as clerk under the Blantyre School Management Committee of the Education Authority for the County of Lanark. 3. On 16th June 1922 there came into force a general reduction in the rate of wages paid by the said Education Authority to officials such as the appellant, and his weekly remuneration was reduced to £2, 3s., and has since remained at that figure. From June 1922 to December 1922 there was no change in the rate of wages payable to a man who worked as the appellant had done before his accident, viz., as miner and part-time deputy check-weigher, the rate being between £2, 10s. and £2, 12s. per week. 4. The only change in circumstances since the award of 29th May 1922 has been the lowering of the appellant's weekly income through the reduction of wages which affected generally the officials of the Lanarkshire Education Authority. The reduction in the appellant's earnings as an official of the Education Authority was not due to any cause personal to himself. His efficiency remained the same as before.”

The Case further stated—“The appellant claimed that he was entitled to an increase in the weekly rate of his compensation because of his decreased remuneration as clerk to the Education Authority. He argued that this was a special form of employment, and that his compensation should be assessed on the footing that he was fit only for light surface work at a mine, the rate for which is about 25s. per week. On 27th December 1922 I issued my award dismissing the application for review on the ground that the appellant had not set forth relevant grounds for asking that the rate of his weekly compensation should be reviewed. I found that the work at which he is engaged is the ‘suitable employment or business’ with reference to which the rate of compensation in respect of his partial incapacity falls to be assessed, aud that the general fall of wages in that employment is not in itself a good ground for demanding review of compensation, there having been no change of circumstances personal to him.”

The question of law for the opinion of the Court was—“On the foregoing averments and admissions was the appellant entitled to ask for review of the weekly rate of compensation payable to him?”

The arbitrator appended the following note to his award:—“… The only change in circumstances that is averred is that his [the applicant's] salary as clerk has been reduced to £2, 3s. per week. It was admitted at the debate that this reduction was one which affected him in common with all the similar officials of the County Education Authority. His wage was not reduced because of anything personal to himself.

The argument was that I ought to assess the workman's compensation on the footing that if he had remained in work connected with a mine he would have been able to earn only £1, 5s. per week, that it was a merely adventitious circumstance that he had secured the position of clerk to the Blantyre Management Committee, and that as soon as his wages as clerk were reduced he was entitled to be treated as if he were a miner fit for light work. But the statute does not warrant this argument. What it refers to is ‘some suitable employment or business.’ It contemplates that a man may change his employment, and in fact cases have occurred in which an injured man was able to earn in a new occupation much higher wages than before the accident. Fallens is a man of more than usual intelligence and capacity, as was indicated by the fact that when he was a miner he also acted as deputy check-weigher. His qualifications fitted him for a better-paid job than surface labouring, and thus his suitable employment’ provided him with a better wage. If he was thrown out of this job and could not secure one as well paid, the opinion of the Judges in the House of Lords in M'Alinden v. James Nimmo & Company, Limited (1919 S.C. (H.L.) 84) would have effect. It would be a case where more light had been thrown on his capacity to obtain suitable employment. But here the occupation remains the same. The only change is that there has been a general reduction in the rate of wages paid to such officials as Fallens.

I appreciate his grievance. Through no fault of his own his weekly income is reduced by 5s. If his earnings in May bad been £2, 3s. he would have received a substantially larger award of compensation then. But in my opinion the Act does not contemplate review of compensation in every case where the workman's position is worsened by a general fall in wages. If review is competent in this case the consequences are far-reaching. Suppose the rate of miner plus check-weigher's wages fell to £2, 3s., would the employers be entitled to ask that the workman's compensation be suspended? Suppose Fallens’ wage had

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been increased, would the employers be entitled to ask for review. An endless vista of litigation seems to be opened up if the claimant is right. After all it is impossible to be meticulously accurate in assessing compensation. All that can be done is to make a fair estimate according to the circumstances of the moment, and I think the trend of judicial opinion is towards holding that an award can be reviewed only where there is some change of circumstances personal to the workman.”

Argued for the appellant—The arbitrator was in error in failing to keep in view the fact that the appellant was a clerk only because he was an injured man. The comparison fell to be made, not between the appellant's wages as a clerk and those earned by other clerks, but between what he was actually earning as a clerk and what he might have earned but for the accident as a miner. The workman's title to compensation was found in section 1 of the Workmen's Compensation Act 1906, and the amount of that compensation was determined by reference to the provisions contained in the First Schedule to that Act. The schedule provided that a weekly payment not exceeding 50 per cent of the average weekly earnings, nor £1 in all, might be awarded. The amount, however, could not exceed the difference between the pre-accident and the post-accident earnings. Counsel referred to Ball v. Hunt, 1912 S.C. (H.L.) 77, 49 S.L.R. 711; Duris v. Wilsons and Clyde Coal Company, Limited, 1912 S.C. (H.L.) 74, 49 S.L.R. 708; M'Neill v. Woodilee Coal and Coke Company, 1918 S.C. (H.L.) 1, 55 S.L.R. 15; Bevan v. Energlyn Colliery Company, [1912] 1 KB 63. The case of Tarr v. Cory Brothers & Company, [1917] 2 K.B. 774, established the proposition that where there was a change, whether increase or decrease, in the wages the workman was earning after the accident, that change in circumstances entitled either party to ask for a review—see judgment of Swinfen Eady, L.J., at p. 777. Here there had been such a change since the date when the weekly payment was fixed, and accordingly the appellant was entitled to a review— Radcliffe v. Pacific Steam Navigation Company, [1910] 1 KB 685, per Fletcher Moulton, L.J., at p. 690; Murray v. Portland Colliery Company, Limited, 60 S.L R. 56; John Watson, Limited v. Quinn, 1922, 60 S.L.R. 1; Quilter v. Kepplehill Coal Company, 1921 S.C. 905, 58 S.L.R. 588; M'Alinden v. James Nimmo & Company, 1919 S.C. (H.L.) 84, 56 S.L.R. 522.

Argued for the respondents—The arbitrator had found that the appellant's total loss of wages (9s.) was due partly to his injury (this he assessed at 4s., of which he awarded him 2s.) and partly to economic circumstances with which he as arbitrator was not concerned. Consequently the appellant must lose the 5s. attributable to the latter— Murray v. Forfar Coal Company, 1922 S.L.T. 620; Gaffney v. Chorley Colliery Company, [1922] 15 Butterworth 158, per Sterndale, M.R., at p. 163. These cases recognised that a workman's incapacity might be due to two different causes, and the arbitrator was perfectly justified in splitting up the total loss of 9s., and taking into account only that part which was due to the accident. It was not relevant in asking for a review of weekly payments to aver a change of economic circumstances— Quilter v. Kepplehill Coal Company (cit. sup.). Accordingly the appellant had failed to state a relevant case, and the question of law should be answered in the negative.

At advising—