United Kingdom House of Lords Decisions

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Cite as: [1909] UKHL 1043_1, 46 ScotLR 1043_1

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SCOTTISH_SLR_House_of_Lords

Page: 1043↓

House of Lords.

Monday, May 17 1909.

(Before the Lord Chancellor (Loreburn), Lords Ashbourne, Gorel, and Shaw.)

46 SLR 1043_1

(On Appeal from the Court of Appeal in England.)

Anslow

v.

Cannock Chase Colliery Company, Limited.

Subject_Master and Servant — Workmen's Compensation Act 1906. (6 Edw. VII, c. 58), Sched. I, secs. 1, 2 — Amount of Compensation — “Average Weekly Earnings” — Mode of Computation.
Facts:

A workman was totally incapacitated by accident. During all the preceding year he had been employed by respondent company in the same grade of work. During this time there were 16 weeks when work was impossible through public holidays or stoppage of work. Out of the 36 working weeks the workman had been off work for 3 from sickness and private holiday. His total wages for the year earned in the 33 remaining weeks were £68.

Held that stoppage of work and public holidays were normal incidents of the employment, and that therefore the workman's average weekly earnings, in terms of the Workmen's Compensation Act 1906 (6 Edw. VII, c. 58), Sched. I, secs. 1, 2, were 36/52nd parts of the workman's weekly earnings during the 33 weeks he had actually worked, i.e., 36/52nds of a 33rd part of £68.

Headnote:

The appellant claimed compensation for his total incapacity, caused by an accident sustained in the course of his employment by the respondent s. His statutory average weekly earnings, under the circumstances stated supra in rubric, were computed by the County Court Judge, whose finding was affirmed by the Court of Appeal ( Cozens-Hardy, M.R., Moulton And Farwell, L. JJ.), reported [1909] 1 KB 352.

The workman appealed.

At the conclusion of the argument for the appellant their Lordships gave judgment as follows:—

Judgment:

Lord Chancellor (Loreburn)—In this case I agree with the conclusion arrived at by the Court of Appeal and by the learned County Court Judge in his extremely careful and able judgment. The question is in regard to the way in which the average weekly earnings of a workman should be calculated in a case in which normally a recognised incident of his work was fourteen

Page: 1044↓

weeks' stoppage and two weeks' general holidays during the year. The object of the Act of Parliament was to compensate a workman for his incapacity to earn, which is to be measured by what he could earn under the conditions prevailing before and up to the time of the accident. If the workman takes a holiday and forfeits his wages, that does not interfere with what he can earn. It is only that for a month he did not choose to work. But if it is one of the incidents of his employment to stop for a month, then he cannot earn wages for that time in that employment, and his capacity of earning is less. I agree with the Master of the Rolls when he says—“In my opinion the true test is this, What were his earnings in a normal week, regard being had to the known and recognised incidents of the employment? If work is discontinuous, that is an element which cannot be overlooked.” I therefore move that the appeal be dismissed.

Lords Ashbourne, Gorell, and Shaw concurred.

Appeal dismissed.

Counsel:

Counsel for Appellant— Rufus Isaacs, K.C.— Hugo Young, K.C.— G. Milward. Agents— James Mitchell for R. A. Willcock & Taylor, Wolverhampton.

Counsel for Respondents— C. A. Russell, K.C.— E. W. Cave. Agents— Beale & Co., Solicitors.
1909

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