Scottish Court of Session Decisions

In an arbitration under the Workmen's Compensation Act 1906, in the Sheriff Court at Hamilton, between Charles O'Neill, drawer, 134 King Street, Pollokshaws, appellant, and the Giffnock Collieries, Limited, coalmasters, Giffnock Collieries, Thornliebank, Glasgow, respondents, the Sheriff—Substitute ( Hamilton) found no expenses due to or by either party.

The appellant appealed by a Stated Case, which set forth—“This is an arbitration in which the appellant claims compensation as for partial incapacity from 7th April 1923, in respect of an accident for which compensation had for some time been paid to him by the respondents as for total incapacity without any agreement or award.

Proof was allowed and led before me on 17th October 1923, and I found that the following facts were admitted or proved:—1. That on 31st May 1922 the appellant, while in the employment of the respondents, received personal injury by an accident arising out of and in the course of his employment. 2. That the said injury consisted of his straining his back through falling while endeavouring to replace a hutch upon an underground set of rails. 3. That prior to his accident the appellant's average weekly wage was £3. 4. That the respondents paid compensation to the appellant as for total incapacity at the rate of £1, 15s. per week—the sum of 15s. being payable under the Workmen's Compensation (War Additions) Acts 1917 and 1919—up to 7th April 1923. 5. That at the lastmentioned date they refused to pay further compensation on the ground that the appellant had recovered from the said injury and was fit for his former employment. 6. That the appellant on 7th April 1923 had, and now has, partially recovered from the said injury, and that he then was, and now is, fit for light work. 7. That he has not yet fully recovered from the said injury and is not fit for his former employment. 8. That his present state of partial incapacity is due in part to the said injury and in part to his failure duly to exercise his back by light work or otherwise. 9. That the appellant is at present unemployed and earned nothing. 10. That it was not proved that there was any employment available to the appellant for which he was at the present time capable, and 11. That 10s. per week is, in the circumstances, a reasonable amount of compensation to be paid by the respondents to the appellant.

I therefore awarded to the appellant the sum of 10s. weekly in name of compensation for partial incapacity for the period from 7th April 1923 until the further orders of Court, and found no expenses due to or by either party.”

The question of law for the opinion of the Court was—“On the foregoing facts was I bound to award expenses to the pursuer?”

The Sheriff-Substitute appended the following note to the Stated Case:—“After considering this case along with the medical assessor I have come to the conclusion that the claimant's condition is, and has since at least 7th April last been, one of partial disability due in part to the accident and in part to lack of proper treatment. I think that for some time past regular exercise for

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his back would have been beneficial to the claimant, but I cannot say that but for his neglect of such exercise his incapacity due to the accident would have ceased. I therefore think that he is entitled to compensation for partial incapacity— Devlin v. Chapel Coal Company, Limited, 1915 S.C. 71, 52 S.L.R. 83.

Argued for the appellant—The arbitrator was bound to award expenses to the appellant. The general rule that expenses followed success applied in the present case, and the Stated Case disclosed no materials which entitled the arbitrator to depart from the general rule. The appellant's neglect to take exercise was not a relevant ground for varying the general rule. In any event the arbitrator had already taken into account the appellant's self-neglect by awarding the appellant a reduced amount of compensation, and to refuse expenses in addition to making a reduced award of compensation amounted to the imposition of a double penalty on the appellant. Since the arbitrator had not stated in the Case any material which warranted him in refusing expenses to the appellant, the Court must assume that none existed— Murphy v. William Baird & Company, 1921 S.C. 891, 58 S.L.R. 611; Murphy v. Farme Coal Company, 1918 S.C. 659, 55 S.L.R. 557, per Lord Justice-Clerk (Scott Dickson) at 1918 S.C. 661, 55 S.L.R. 559; Feeney v. Fife Coal Company, 1918 S.C. 197, 55 S.L.R. 223, per Lord Justice-Clerk (Scott Dickson) at 1918 S.C. 200, 55 S.L.R. 255; Finlayson v. s.s. “Clinton” (Owners of), 1914, 7 B.W.C.C. 710; Adshead Elliott, Workmen's Compensation Act (7th ed.), pp. 433, 434, and 435. The case of Breslin v. Barr,& Thornton, 1923 S.C. 90, 60 S.L.R. 66, was also referred to.

Argued for the respondents—The rule that expenses followed success was not an absolute rule. The arbitrator was entitled to take into consideration any material fact. The personal relationship of the appellant to the circumstances at issue was the true ground on which to determine the question of expenses, and as the appellant had been in fault he was not entitled to his expenses — Cant v. Fife Coal Company, Limited, 1921 S.C. (H.L.) 15, 58 S.L.R. 74; Feeney v. Fife Coal Company ( cit)., per Lord Salvesen at 1918 S.C. 201, 55 S.L.R. 225.