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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Price v. Guest, Keen, & Nettlefolds, Ltd [1918] UKHL 361 (17 June 1918)
URL: http://www.bailii.org/uk/cases/UKHL/1918/56SLR0361.html
Cite as: 56 ScotLR 361, [1918] UKHL 361
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SCOTTISH_SLR_House_of_Lords
Page: 361↓
House of Lords.
(On Appeal From The Court of Appeal in England.)
(Before the
v.
Subject_Master and Servant — Workmen's Compensation — Compensation — Computation — “Employment… during the Three Years next Preceding the Injury” — Onus of Proving Discontinuance of Employment — Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), Sched. I, secs. 1 and 2.
Facts:
On 10th March 1916 a workman who had been employed by the respondents for the preceding three years was killed by an accident in one of the respondents' collieries. The respondents disputed the method of computing the compensation due to his dependants. From 1st to 13th July 1915 the deceased workman worked “day by day.” From 14th to 21st July owing to a strike he did not work. At the end of the strike he returned to work at increased wages. The dependants claimed that during the period of strike the deceased was not employed by the respondents and the compensation fell to be computed on the basis of his subsequent earnings. The respondents contended that his employment had been continuous.
Held ( dis. L. C. Finlay) that the onus of proving the discontinuance of the employment was on the appellant, and there was no evidence to establish her contention.
Their Lordships' considered judgment (from which the Lord Chancellor dissented) sets out the facts.
The relevant enactments are found in the first schedule to the Workmen's Compensation Act 1906 (1) ( a) and (2) ( c). Clause 1 of that schedule deals with the amount of compensation payable under the Act, and under ( a) it provides what the compensation should be where death results from the injury. In cases in which the workman has left dependants wholly dependent upon his earnings, the compensation is to be “a sum equal to his earnings in the employment of the same employer during the three years next preceding the injury,” or £150, whichever of these sums is the larger, but in no case to exceed £300, “and if the period of the workman's employment by the said employer
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Clause 2 ( c) gives the following definition:—“Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the workman was employed at the time of the accident, uninterrupted by absence from work due to illness or any other unavoidable cause.”
The deceased was killed by accident in the course of his employment on the 10th March 1916, and his widow claimed compensation on the footing that the period of the deceased's employment by the same employer had been less than three years, in which case she would be entitled to the maximum compensation of £300. The employers contended that he had been in their employment during the three years next preceding the injury, so that the compensation was the amount of his earnings during the three years, namely, £259, 4s.
The case resolved itself into an inquiry whether there had been a break in the employment from the 14th to the 21st July 1915. If there had been such a break the employment would not have been continuous for the three years, and the larger amount of compensation would be payable.
The County Court Judge decided in favour of the claimant, giving her £300. His decision was overruled by the Court of Appeal, who held that there was in point of law no evidence on which the County Court Judge could find that there had been such a break in the employment, and reduced the amount of compensation to £259, 4s. Your Lordships are now asked to restore the award of the County Court Judge.
The deceased had been in the employment of the respondents as assistant repairer for three years continuously unless there was a break during the week the 14th to the 21st July 1915, as found by the County Court Judge. Up to the 30th June 1915 he was serving on the terms of the Conciliation Board agreement of the 8th April 1910, which by clause 26 was to continue until the 31st March 1915, and thenceforth until the expiration of three months' notice. On the 1st April 1915 the three months' notice was given to terminate this contract, and that notice expired on the 30th June 1915. The deceased, however, along with the other men, worked on “day by day” up to the 14th July. During the week the 14th to the 21st July there was what is called in the judge's notes a strike, and the deceased with most of the other men in the colliery did no work during that time. On the 22nd July they returned to work on a provisional agreement, and on the 2nd September 1915 a final agreement was arrived at regulating in a number of particulars the terms of employment. Its thirtieth clause provided that the agreement should continue in force from the 15th July till the expiration of six months after the expiration of the war, and thereafter until the expiry of three months' notice. The thirty-second clause provided for the signature of the contract by the owners and by each workman “as one of the terms of the engagement between the owners and the said workmen.” This agreement was signed by owners and workmen, including the deceased, the men returned to work, and the deceased continued at work until his death.
The authorities lay down, and I think rightly, that a workman is not in the employment of the same owner for the three years within the meaning of the provisions of the schedule which I have quoted unless his employment is continuous. It need not be under the same contract of service. So long as there is no interval of time between the end of one contract of service and the beginning of another there would be continuous employment. Indeed, I think it follows from the authorities that if a dock labourer, who is engaged day by day, whose wages are paid at the close of each day, and who has no right to be employed on the following day, had been in fact employed on every working day of the three years by the same employer there would have been continuous service, and therefore he would have been in the employment of the same employer for the three years, so as to render applicable to his case the first scale mentioned in clause 1 ( a) of the first schedule.
If there is continuous employment it is not necessary that there should be continuous work. If the contract or contracts subsist throughout the three years there may be intervals in the work. The man may be employed to work only for, say, two or three days a week. He may stop away from work with or without leave, and even unlawful absence would not interrupt the continuity of the employment unless the employer dismissed the workman for it.
As the absence of the deceased from work during the week the 14th to the 21st July 1915 was wilful and not due to illness or any other unavoidable cause, it is unnecessary for the purpose of the present case to consider the meaning of the words at the end of clause 2 ( c) of the schedule—“interrupted by absence from work due to illness or any other unavoidable cause”—which have given rise to so much doubt and difficulty.
That the deceased was not working during the week the 14th to the 21st July 1915 is clear. The question on which the County Court Judge and the Court of Appeal differed was whether during that week there was a break in his employment as well as in his work. The question is one purely of fact, and the decision of the County Court Judge is conclusive on questions of fact, provided there was any evidence in point of law on which his conclusion of fact could be arrived at. The only ground on which the decision of the County Court Judge can be reversed is that there was no evidence on which, if the case had been tried by a jury, the Judge would have been justified in leaving the question to them.
At the conclusion of the hearing I was
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It was of course for the appellant as claimant to establish the proposition on which her claim to compensation on the scale which happened in the present case to be more beneficial to her must depend. The burden of proof was upon her, and if she failed to adduce any evidence in support of it the Court of Appeal were justified in setting the award aside. The award could not be interfered with merely on the ground that upon the balance of evidence a different conclusion ought to have been arrived at.
The contract on which the deceased had for a long time worked came to an end on the 30th June 1915, but he and the other workmen worked “day by day” up to the 14th July. Working “day by day” in my opinion denotes prima facie that there was no engagement of any sort beyond the day. It was not suggested that there was any usage requiring notice to determine such an employment, and indeed on what I think is the prima facie meaning of the term there is nothing on which notice could operate. If a man work merely “day by day” he is not bound to return to work on the morrow. We have no information as to whether the wages are under such a system paid each day or at the end of the week, and it does not appear to me that in either case such a circumstance can be decisive. No point appears to have been taken in the County Court as to the necessity of notice in order to terminate a “day to day” employment, and I think that Mr Tindal Atkinson was entitled to observe on behalf of the appellant that if this point had been raised it might have been met by evidence.
The County Court Judge found that there was a complete break in the employment from the 14th to the 21st July, and further on in his judgment he explains his meaning thus—“In further reply to the contention made on behalf of the respondents I say that during the seven days the men were away there was no engagement at all. The relationship of master and servant did not exist. It was open for the deceased and any other workman to enter into any employment they liked without any liability for breach of service, and the employers could decline to re-engage them without any corresponding liability. It did not matter what had taken place between the masters and the representatives of the workmen. Nothing was binding on this man until he signed the agreement on his return. When he returned to work the contract set forth the terms (which differed materially from the old contract) and the man signed it. From that time there was a new contract. I hold therefore that the period to be taken into consideration to be calculated begins from the date of the second engagement. I think the figures in that event have been agreed upon, and the award will be for £300.”
His decision was reversed in the Court of Appeal, the Master of the Rolls observing—“We are left in the dark as to the conditions of the ‘day to day’ working. I think it is fair to assume that some reasonable notice on one side or the other was necessary to terminate the engagement, probably a day's notice. There is no evidence that any such notice was given.” Surely if reasonable notice was necessary it was for the respondents to give some evidence of this, but there is none, and in my opinion the nature of the engagement “day by day” renders it prima facie improbable that any such notice could be necessary.
Warrington, L.J., says—“There was no evidence of any stipulation or of any custom dispensing with notice to terminate the contract involved in the ‘day to day’ working, and the Court in such a case is not entitled to assume that the contract is terminable without the reasonable notice which the general law requires. What would be reasonable notice is not for us to determine. It may be that in the case of ‘day to day’ contracts notice given on one day of the intention to determine the contract as from that day might be sufficient, but in this case there was no evidence of any notice at all having been given either by Price or by his employers.”
Work “day by day,” unexplained by any evidence as to usage, seems to me to import that there was a fresh engagement every day, and the general law as to reasonable notice cannot be treated as applicable to such a case.
The evidence is extremely meagre. The only witness was Mr John Davies, the miners' agent for Dowlais district. He said—“David Price was out of work from the 15th to the 21st July inclusive. He returned to work on a provisional agreement that was made between the coalowners and the representatives of the workmen.” This statement appears to me to be consistent with the view that the deceased was out of employment from the 15th to the 21st and resumed it on the provisional agreement. The phrase “out of work,” in the ordinary use of words, is more naturally used to denote a case in which a man is out of employment than the case of a man whose employment continues although he chooses to abstain from actually working under it; and the phrase “he returned to work on a provisional agreement” is apt to denote resumption of employment. There was no cross-examination of this witness, and there was no evidence to rebut the inference which might be drawn from the evidence that there was a break in the employment. If the witness had meant merely that the deceased struck work, and in fact did not work, he would, I think, have said so.
It is very difficult to see how the employers could have maintained any claim against the workman working “day by day” for absenting himself from work after the 14th July, and on the materials before us I
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It was not contended for the employers that any wages had been either earned or paid for the week the 14th to the 21st July, and on the evidence the natural inference is that they were not. Some reliance was placed by the respondents on the provision in clause 30 of the agreement of the 2nd September 1915, that the agreement should continue in force from the 15th July 1915 until the expiration of six months after the termination of the war, and thereafter until the expiration of three months' notice. But this agreement is really not a contract of service but a statement of the terms which were to attach to service while it was in force. The deceased was not working during the week under question, and the terms could not apply to him in respect of that week.
There were two circumstances on which the respondents relied in argument at the bar of your Lordships' House.
The first was that the men left their tools in the mine during the week the 14th to the 21st July, and this, it was urged, showed that they considered their employment had not terminated. All that it shows is that the men thought it very possible or probable that they would resume their employment. Negotiations were, as Mr Davies proves, going on between the representatives of the owners and those of the men, and the “strike” was no doubt a move in the game in the hope of bringing the masters to terms. The men hoped and believed that terms would be arrived at, and in this hope, in which they were not disappointed, they left their tools in the collieries to be used when their employment should begin anew. Leaving the tools is just as consistent with this view as with the view that the men considered their employment as still subsisting.
The other point relied on by the respondents was that in the particulars of claims under head 6 the claimant put her claim as “over £2 per week from the 15th July 1915.” This, of course, does not amount to an estoppel. It was a matter fit to be considered by the Judge in favour of the respondents' view, but it is not conclusive. Indeed, it seems to me to be very far from conclusive, and to have really no bearing on the question whether there was any evidence in point of law to support the claimant's contention.
Upon the whole, in my opinion this appeal ought to succeed and the decision of the County Court Judge should be restored.
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Again, if a workman should contract with his employer to perform certain services he will continue to be in the employment of his employer though he may not actually perform those services. Physical conditions may render the performance of them impossible, as, for instance, if a ploughman be hired to plough land, and snow falls and frost intervenes which renders ploughing impossible. The servant discharges his duty while his contract lasts if he is ready and willing to do that which his contract of service binds him to do. If he refuses to render these services, or is unable to render them, that may, and under most circumstances would, furnish just cause for his dismissal, but does not by itself terminate his contract of service. Illness, for instance, might be of such a temporary character that, though disabling the workman from performing his service while it lasted, would not justify his dismissal, or it might be of such a permanent character that it would justify it.
Paragraph 2 of the above-mentioned rules purports to give a definition of employment by the same employer. As it stands it is rather absurd. It leaves untouched the case of voluntary absence. The employment may be interrupted by that kind of absence, either by the permission of the master, as, for instance, if the servant gets a holiday, or against the will of the master, and the employment would be continuous as long as the master does not in the latter case dismiss the servant. I cannot but think that some slip has occurred in the drafting of this rule. I think the intention must have been to provide that the employment should be taken to be continuous notwithstanding that it was in fact interrupted by absence due to illness or some other unavoidable cause. It seems to me absurd to provide that if a master should keep a servant in his house during his illness, continue to pay him his wages, and then dismiss him from his service, that illness is to be treated as an interruption of his employment, while, though disabled from performing his duty, he might be willing to perform his duty if he was able. Fortunately, however, we have not to construe this paragraph of the rule in the present case. One of the many strange things about this strange case is that in the particulars which the claimant is bound to deliver the earnings of the deceased in the employment of the employer by whom he was immediately employed are stated to be £2 per week from the 15th July 1915, thus covering the seven days when he did not work. I do not think the claimant is estopped by this statement, but it gives some clue to the view which the parties took of the result of the arrangements which had been made. In my opinion the claimant, upon whom is the burden of proof, has failed to discharge this burden and show that there was such an interruption in the employment of her husband during the three years preceding his death as enables her to bring her claim under the second part of paragraph 1 ( a) (i.).
For these reasons I therefore think that the judgment appealed from was right and should be affirmed and this appeal be dismissed with costs here and below.
The Act of 1897 in Sched. 1, art. 1 ( a) (i), had provided compensation in case of death, and had provided means of fixing its amount in each of two alternatives, or what were no doubt meant to be alternatives. They were not true alternatives. The first is expressed thus—“A sum equal to his earnings in the employment of the same employer during the three years next preceding the injury, or the sum of £150, whichever of these sums is the larger, but not exceeding in any case £300,” with a certain deduction. The second is—“If the period of the workman's employment by the said employer has been less than the said three years.” The former seems to contemplate continuous earning during the three years, while the latter is satisfied by a continuous contract of employment during the three years. As matter of construction these ought to be read if possible as true alternatives. To achieve that result I will read each as contemplating a continuous contract of employment at a continuous wage. The idea underlying the provisions seems to be this. If a man has been earning without interruption during three years his compensation is to be equal to the aggregate sum earned. But if for six weeks or six months during the time he has not earned wages the aggregate sum would be so much the smaller. He is not to suffer for this. If the aggregate is less than a three years' aggregate he comes under the second alternative, and gets 156 times his average weekly earnings during the period of his actual employment.
If the employment be (say) such as that of a miner who is paid once a week for such number of hours, or shifts, or days, or for such amount of piecework as he
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The clause, it is true, does not speak of continuous earning or of continuous employment, but in fact and as matter of decision the true construction involves continuity. Continuity, however, does not necessarily involve the absence of intervals. A man who during three years is employed for an eight-hour day, or for five days in each week, or for a less number of days in each week, is continuously employed for three years if his employment for those respective periodic times continues without interruption for three years. Hathaway v. Argus Company ( 1901, 1 Q.B. 96) was a case of that kind.
It was found, no doubt, that the provisions above described left something to be desired in the matter of certainty, and presumably the new provisions in the Act of 1906 were intended to assist the matter. That Act introduced the clause No. 2 which is found in Schedule 1 of that Act. This starts away with the word “earnings” and “average weekly earnings,” emphasising what I think had appeared already, that continuous earnings and not subsisting contract of employment was the dominant idea, and was the thing which the new provision was going to explain. Of the many difficulties which this clause (2) created the only one that has any bearing upon the present case is ( c). It purports to define the meaning of employment by the same employer. It says nothing about earnings, and is addressed exclusively, it would seem, to the existence of a contract of service. Its concluding words seem to say that if continuity is interrupted by absence from work due to illness or any other unavoidable cause there is not continuous employment, and the first alternative is excluded. The language is satisfied even if the man's wages were paid in full during his absence from work. Inferentially, if continuity is interrupted by another cause, say voluntary absence from work, there is continuous employment, and the first alternative is not excluded. Neither of these will work with the intention above suggested, viz., that the first alternative is to apply if there are continuous wages during the three years. But, happily for the decision of the present case it is not necessary to ascertain what the last words of clause ( c) mean. Upon the best consideration I can give to the statute it seems to me that if for three years there has been a continuing contract of employment under which the workman had the opportunity of continuously earning wages when and as his services were required or were given, the first alternative applies.
Taking this view of the meaning of the statute I turn to the facts of this case.
The widow here applies for compensation. The onus is on her to prove the facts establishing her right to compensation under such alternative as she asserts to be applicable. She delivered particulars, and by the sixth particular she claimed that the period of employment had been less than three years, and that the earnings had been over £2 a-week from the 15th July 1915. The employer in answer to that particular asserted that the employment had been for three years. He did not traverse the widow's statement as to earnings from the 15th July if the widow was right that the employment had been for less than three years. The County Court Judge found as a fact that for the period beginning with the 30th June 1915 there was a contract, and further found that it “came to an end” on the 14th July. He further found as a fact that “during the seven days the men were away” (namely, from the 15th July to the 22nd July) “there was no engagement at all.” There was, I think, no evidence to support these findings. The evidence is exceedingly meagre. To avoid sending the matter back to the County Court Judge to arrive at a better finding of the facts the parties agreed upon certain facts before the Court of Appeal. It was agreed that no notice was given by the workman on the 14th July, that the men simply refrained from going to work on the 15th July, and that they did not even take their tools from the pit, and that at the end of the week they resumed work. It had been proved that Price returned to work on the provisional agreement, and it was agreed that the conditional agreement contained terms which were subsequently confirmed and put into writing in the agreement of the 2nd September. That agreement provided (art. 30) that—“This agreement shall continue in force from the 15th July 1915 until,” &c. Article 32 provided that a copy of the agreement should be placed in a contract book at the colliery, which should be signed by each workman as one of the terms of his engagement. Price signed that book. There is evidence therefore of continuous employment, and there is no evidence to support a finding that there was a breach of continuity of employment. The widow by the particulars asserted that there was employment “from the 15th July,” the date of the suggested discontinuance, and the other facts establish a continuous state of things under which the workman had his employment open to him if he chose to avail himself of it, and would have been entitled to his wage if he had worked. It is, then, not material that he did not work. There was interruption of work, but no interruption of employment.
It was for the workman to prove that there had not been continuous employment for three years. The County Court Judge found that he had proved it. But there was no evidence to support his finding. The decision of the Court of Appeal in my judgment was right, and this appeal must be dismissed, with costs.
Their Lordships dismissed the appeal, with expenses.
Counsel for the Appellant (the claimant)— Tindal Atkinson, K.C.— Llewelyn
Page: 367↓
Counsel for the Respondents— Compston, K.C.— D. R. Thomas. Agents— Ullithorne, Currey, & Company, for D. W. Jones & Company, Merthyr Tydfil, Solicitors.