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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hutchison v. Cadzow Coal Co., Ltd [1924] ScotLR 345 (19 February 1924)
URL: http://www.bailii.org/scot/cases/ScotCS/1924/61SLR0345.html
Cite as: [1924] ScotLR 345, [1924] SLR 345
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SCOTTISH_SLR_Court_of_Session
Page: 345↓
Court of Session Inner House Second Division.
[Sheriff Court of Lanarkshire at Hamilton.
v.
Workmen's Compensation Act 1906 — Procedure — Application for Review — Preliminary Defences — relevancy.
Facts:
A miner sustained injuries owing to an accident in the course of his employment, and was awarded compensation in respect of partial incapacity. He subsequently obtained work with the same employers at an increased wage, and the payment of compensation was suspended. During the miners' strike his employers' colliery was not working, and consequently he was unemployed, while at the same time he remained partially incapacitated. In an application at his instance for review of the award suspending compensation in which he averred that be had been deprived of his employment, a plea to relevancy was sustained by the arbitrator on the ground that the application was lacking in precision, and disclosed no change of circumstances entitling him to review. Held, on appeal, that the claimant had sufficiently averred a change of circumstances entitling him to inquiry.
Observations per Curiam as to the circumstances in which discussions on relevancy should be allowed in applications under the Act.
James Hutchison, coal miner, 170 Low Waters, Hamilton, 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 the Cadzow Coal Company, Limited, coalmasters, Cadzow Colliery, Hamilton, respondents, appealed by way of Stated Case.
The Case stated—“This is an arbitration in an application presented on 26th September 1923 by the appellant for review of an award of compensation. On 28th May 1908 the appellant received injuries necessitating the amputation of his left leg by accident arising out of and in the course of his employment with the respondents. The respondents admitted liability and paid him compensation in respect of said injuries. On 30th December 1910, in proceedings initiated by the respondents, the rate of 16s. per week was fixed in respect of the appellant's partial incapacity. On 28th September 1917 the respondents again raised
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proceedings for review of compensation, and on 2nd November 1917 I issued my award diminishing the rate of compensation to 12s. per week from 5th June 1917 to 2nd November 1917, and ‘in respect of the employers’ offer to provide him with work at a wage exceeding his average weekly earnings prior to the accident,’ I suspend payment of compensation until further order. In a note to my award I stated—‘As long as the employers are prepared to employ Hutchison at the increased wage, and he is fit for the work, payment of compensation falls to be suspended.’ The appellant raised the present proceedings by lodging a minute on 26th September 1923. In that minute he craved the Court to award him ‘compensation during the period from 31st March 1921 to 30th June 1921 at the rate of 12s. per week, or at such other rate as to the Court may seem just, in respect that during said period defenders' colliery was not working and pursuer was unemployed while still being partially incapacitated for work.’ The respondents contended that the appellant's minute did not set forth a relevant case for review. I heard parties' agents on 16th October 1923, and on 27th October 1923 I issued an interlocutor allowing the appellant, if so advised, to amend his minute. In a note I stated that in my opinion the minute as it stood did not raise a case for review. The workman claims that he is entitled to payment for compensation during the period of the miners' strike (or lock-out) of 1921. I expressed the opinion that in order to make a relevant case for review the appellant must be able to state that during the period in question the respondents were not prepared to employ him at a wage greater than his average weekly earnings prior to the accident. On 5th November 1923 the appellant lodged a fresh minute, in which he substituted the following ground of review, viz.—‘In respect that during said period pursuer, while still being partially incapacitated for work, was deprived of the employment which he had previously obtained from the defenders and was unemployed during the said period.’ I heard parties' agents on this minute on 9th November 1923, and on 13th November 1923 I dismissed the appellant's crave for review under both minutes as irrelevant. I held that in order to warrant review the appellant must associate the respondents with the cause which deprived him of employment. I was of opinion that it is not enough for a workman (or an employer) simply to crave review in general terms, that he must give sufficient notice to the other party of the case which he must be prepared to meet, if proof is allowed. In the present case if the specific grounds of review had been set forth, it is possible that the matter might be disposed of without incurring the expense of a proof. I further pointed out that the dismissal of this application does not bar the appellant from still setting forth a relevant case.” The question of law for the opinion of the Court, as amended, was—“In the circumstances above set forth, was I right to dismiss the appellant's application for review?”
The arbitrator appended the following note to his award of 13th November 1923:—“I refer to my interlocutor and note of 27th October 1923. I expressed the opinion that the averments in the minute lacked specification and relevancy, and I indicated my reasons for so holding. In order to avoid expense I gave the workmen the opportunity of amending or lodging a new minute. He has lodged a new minute, which is more lacking in specification than its predecessor.
As now stated, the ground of review is that ‘the pursuer while still being partially incapacitated for work was deprived of the employment which he had previously obtained from the defenders, and was unemployed during the said period.’ But it seems to me that before the workman can demand compensation from the employers he must in some way connect them with the cause which deprived him of his employment. On the above averment it still might be true that the colliery was working and the employers wished to employ the man. The cause of him being deprived of his work might be something totally unconnected with the employers.
I am not a stickler in those matters. I accept constantly very meagre minutes of review if only they disclose a clear ground, e.g., that the workman has partially recovered his capacity. But the objection here is one of substance. In Quilter v. Kepplehill Coal Company, Limited ( 1921 S.C. 905) the Lord Justice-Clerk says—‘It is clearly settled in our procedure under this Act that the arbitrator is not only entitled to determine a question of relevancy, but if the point is quite sharply raised ought to answer a question of relevancy so as to save needless expense which might result if proof were allowed.’
The workman's claim in the present case does not fall far short of the contention that I must grant a proof if he merely lodges a minute craving review in general terms. As I pointed out in my previous note, the employers here do not know what case they must be prepared to meet. If I sent this minute of review to proof, I do not see how I could resist a motion by the respondents for adjournment after the workman's proof was led if to any extent they were taken by surprise, and a defender is not bound to prepare against every possible ground of claim. He cannot be asked to prepare his case in the dark.
I cannot understand why the workman should not make a frank disclosure of the precise ground of his claim. If he did so it is possible that the matter might be decided without the expense of a proof at all.
As the workman has not taken advantage of the opportunity given to him to amend properly, the only course open to me now is to dismiss both minutes as irrelevant. But this course is no bar to him still lodging a relevant minute of review, and therefore I have the less hesitation in adopting it.”
Argued for the appellant—The arbitrator was in error in refusing inquiry here. The appellant was entitled to review on the
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ground that his incapacity still subsisted and that he had ceased to be employed— Cory Brothers v. Hughes, [1911] 2 KB 738, 4 B.W.C.C. 291; Murray v. Portland Colliery Company, Limited, 1923 S.C. 60, per Lord Justice-Clerk (Alness) at p. 641, and per Lord Constable at p. 67, 60 S.L.R. 56, and 1923 S.C. (H.L.) 62, 60 S.L.R. 615; Harwood v. Wyken Colliery Company, [1913] 2 KB 158, and 6 B.W.C.C. 225. These cases established the principle that where a workman became entitled to compensation under the Act in virtue of an accident arising out of and in the course of his employment, he did not lose that right merely for the reason that another cause of loss of earning capacity arose which was not due to the accident. Reference was also made to Gaffney v. Charley Colliery Company, Limited, 15 B.W.C.C. 158, per Sterndale, M.R, at p. 163, and to Rankine v. Alloa Coal Company, 5 F. 1164, 40 S.L.R. 828, where the Court did not favour a decision on relevancy alone. Inquiry should therefore be allowed. Argued for the respondents—This case fell to be distinguished from Murray's case, since in the latter the period of unemployment, which originated at the time of the miners’ strike, continued to subsist after its termination on account of the condition of the labour market. Here the claim for compensation was limited to the period of the miners’ strike. Bromley v. Staveley Coal and Iron Company, Limited, 1923, 16 B.W.C.C. 77, decided that no compensation was payable for loss of earning power due to the fact that a strike had been declared— cp. per Scrutton, L.J., at p. 86. That was precisely the position in the present case, and the rule laid down in Bromley should be followed. Counsel also referred to M'Nally v. Furness, Withy, & Company, Limited, [1913] 3 KB 605, and to Murray v. Portland Colliery Company, 1923 S.C. (H.L.) 62, 60 S.L.R. 615, where Lord Dunedin said at p. 65 that “to allow of application to review under paragraph (16) of the First Schedule a change of circumstances must be averred, and that a change of circumstances is not sufficiently averred by merely averring a change in the labour market.”
At advising—
I think, in the first place, that procedure under the statute is intended to be summary and informal. Indeed, it may be said that the Legislature contemplated that somewhat rough-and-ready methods might be used in working out the remedies which it provides. At any rate I am convinced that the same standard of relevancy cannot properly be exacted from a workman in a minute of review as is properly exacted from a litigant in the ordinary courts who adjusts his record at leisure. The rigidity which is applied in the latter circumstances would, I think, be out of place in the former circumstances. The Legislature contemplated that there should not be undue delay in the administration of the statute, and decisions of the kind now before us may unquestionably tend to that result. We have therefore to ask ourselves whether when regarded from that angle the minute or minutes in question sufficiently disclose a change of circumstances entitling the appellant to a review of the award. Now, compensation was suspended because employment was offered to the appellant at higher Wages than he had earned before the accident. It is therefore clear that the only relevant change of circumstances which the appellant need aver as entitling him to a review of the award is that the offer in respect of which his compensation was suspended is no longer available to him. The practical question we have to consider is whether that averment can be spelled with sufficient clearness out of the two minutes. In the first minute the appellant avers that the colliery was not working, and therefore he claimed review. In the second minute he goes a little further and avers he had been deprived of the employment which he had previously obtained from the respondents during the period in question. While this is not a wholly admirable statement, it seems to me to be a sufficient statement to entitle the appellant to the inquiry which he seeks.
Reference was made to the case of Quilter v. Kepplehill Coal Company, 1921 S.C. 905. That was a decision on relevancy in quite different circumstances from those which we have here, and I cannot hold that one decision upon relevancy rules another case where the facts are different. For my own part I do not desire to cast the slightest doubt upon the soundness of the decision reached in the case of Quilter. The circumstances seem to be entirely different from those with which we are here concerned, and the decision does not seem to me to bind us in disposing of the present application.
I will only add that it goes without saying that the defences of the respondents remain entire and unaffected by the decision which I suggest to your Lordships. They may in the course of the inquiry, which I propose we should allow, be able to prove that this was a strike and not a
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Having regard to the fact that the statute contemplates summary and informal procedure, that it is therefore reasonable to view more leniently the averments in a minute of review than those in a Court of Session record, I suggest to your Lordships that the averments made by the appellant are sufficient to entitle him to the inquiry he seeks, and that the respondents will not be prejudiced thereby. If I am right so far, the question put by the learned arbitrator, altered as I think Mr Fenton properly suggested, namely, In the circumstances set forth, was I right in dismissing the appellant's application for review? should be answered in the negative.
I agree with your Lordship in regard to the case of Quilter (1921 S.C. 905), to the decision in which I was a party. I see no reason whatever, as at present advised, to think that that case was wrongly decided. In that case the question of relevancy in the circumstances disclosed in the pleadings was very sharply raised, and I do not think any member of the Court had any doubt as to the relevancy of what was said by the appellant. We are coming to a different conclusion here on a different question of relevancy, and in doing so I do not see that we are either helped or impeded by what was said in Quilter's case.
Accordingly on the whole matter I am prepared to agree with your Lordship in thinking that the question should be answered as your Lordship suggested.
The case of Quilter (1921 S.C. 905) has been referred to, and undoubtedly it is an authority for the proposition that you may have an application thrown out as irrelevant. For my own part, without expressing any concluded opinion, I am not prepared to say that I agree with the result in Quilter's case. Moreover, I am not certain that it does not afford an unfortunate example of a too precipitate course being followed. At any rate it is a decision that has to be taken along with the very strong expressions of opinion in the earlier case of Rankine v. Alloa Coal Company, 5 F. 1164. There Lord Adam, Lord M'Laren, and Lord Kinnear all declared very strongly that in arbitrations under the Workmen's Compensation Act the averments made by a workman should not be strictly scrutinised in order to see whether the case might not fail because of some inaccuracy or imperfection of expression.
Where a workman applies for a review of an award it is enough perhaps that he should indicate that there is some alteration in the situation then as compared with the situation when the award was made. When I turn to the first application made here I confess that I see a distinct trace of an alteration. I do not say for a moment that it was an alteration entitling the workman to get the reward he was asking. That would depend on the facts as they were brought out, but it entitled him at all events to have the case determined by the arbitrator upon the facts. If the employers were dissatisfied with the result reached by the arbitrator after such inquiry they might come before us, and upon the full facts of the case have the matter, which may be of considerable importance, determined. The loss of which complaint is made and which justifies an award must be a loss traceable to the injury and not a loss that arises solely and entirely from an economic cause, or it may be solely from the conduct of the workman. But upon the case before us I am quite at a loss to understand what the exact circumstances were. At the time when the application was made previously the arbitrator found that owing to incapacity for work the workman was entitled to an award of 12s. But he added—“He is not to get that meantime because his employers are offering him a weekly wage that is in excess of his pre-accident wage.” The man was an incapacitated man because he had lost a leg, but owing, I suppose, to the rate of wages the employers were able to offer him although incapacitated such a wage as, in accordance with the rules in the schedule for determining the rate of compensation, disentitled
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I think therefore that the case should go back to the learned arbitrator in order that if it is to come before us at all it may come before us in proper form.
The Court answered the question of law, as amended, in the negative.
Counsel for the Appellant—The Solicitor General ( Fenton, K.C.)— Thomson. Agents— Simpson & Marwick, W.S.
Counsel for the Respondents— Graham Robertson, K.C.— Marshall. Agents— W. & J. Burness, W.S.