United Kingdom House of Lords Decisions

Lord Dunedin—These three appeals have one common feature. In each of them a workman was injured and after a period of total incapacity was awarded compensation fixed as for partial incapacity, he being able to earn, and de facto earning, a certain amount of wages less than the average pre-accident wage earned when he was an uninjured man. Then came a period of inflated wages due to the war, with the result that his de facto earnings for light work rose to a greater figure than his average pre-accident wage. In terms of section 3 of the First Schedule of the Act his right to compensation then became suspended. Wages having fallen his earnings no longer exceeded the average pre-accident wage. His physical condition remained the same, and the wages earned by him having fallen below the pre-accident rate, the question arises whether he is entitled to partial compensation. In each case the Court of Session has held that he is so entitled, and has either affirmed the judgment of the arbitrator awarding such compensation or has remitted the matter to the arbitrator to fix the amount. The appellant in each case has put forward the same argument. He argues that there being no change referable to the workman himself since his right to compensation was suspended, there is not such a change of circumstances as warrants an application to the Court to fix the compensation anew, and he cites, in respect of this contention, a number of cases where it has been held that to allow of application to revise under section 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.

It seems to me that the decisions here referred to are quite beside the point. The right of compensation rests not on the schedule but on the first section of the Act—“If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation in accordance with the First Schedule to this Act.” The First Schedule in section 1, sub-section ( b), deals with total and partial incapacity for work arising from the injury and prescribes the liability as follows:—“A weekly payment during the incapacity not exceeding 50 per cent. of his average weekly earnings during the previous 12 months … such weekly payment not to exceed one pound.” Section 3 of the same schedule deals with the fixing of the amount of the weekly payment and says—“In the case of partial incapacity the weekly payment shall in no case exceed the difference between the amount of the average weekly earnings of the workman before the accident and the average weekly amount which he is earning or is able to earn in some suitable employment or business after the accident. …” This settles the extreme limit of what is to be paid, but this is a rider on the computation of the amount; it is not a statutory termination or interruption of the state of incapacity. When the words can no longer be applied then there is no bar to the right which the injured man has to be compensated for partial incapacity. What compensation is then to be paid must obviously in the absence of agreement be determined by arbitration. The technical position at the moment may vary according to circumstances and is well illustrated by the differences of fact between the three cases which I have hitherto taken as one.

In the case of the Portland Colliery v. Murray the worker was so injured that he could no longer work as a collier, but was given light work on the surface and had in addition to his wages a compensation award. When by the rise of wages his earnings equalled his pre-accident wage the employer simply ceased to pay the compensation and the workman acquiesced without either having to go to the Court. The light work came to an end owing to the pit being flooded as the sequel of a strike. The workman then applied for compensation, but it does not appear that there was any standing decree on which he could have charged. The arbitrator took the peculiar and unwarranted course of making an award which should be unavailable so long as the man did nothing, but became available as soon as he was able to resume light work, which would be when the pit was free of water. The Second Division rightly recalled this finding and simply remitted the case to the arbitrator to find what compensation under the circumstances was due.

In John Watson, Limited v. Quinn there was an award dated January 1917 for 10s. 4d. per week in respect of partial incapacity. Payments were made under that down to May 1920. Thereafter the wages of the light employment he was engaged in rose to a level higher than the pre-accident wage and the employer ceased to pay compensation, in which the workman acquiesced. Wages having fallen to a level below the pre-accident wage the workman applied for payment of the old partial compensation, and that being refused he charged upon his subsisting decree. The charge was suspended and the application for review was made by the employers. The arbitrator inquired into the facts and made an award fixing partial compensation payable from the date when wages, had fallen so as to prevent the application of the limit fixed by article 3 of the schedule. His judgment was confirmed by the Court of Session.

In William Dixon, Limited v. Madden there being an award for partial compensation, and the workman maintaining that even after the rise of wages he was still entitled to the compensation, the arbitrator, on application by the employer, ended the compensation “until further order.” When the wages fell again the workman applied and was awarded partial compensation, and the judgment was confirmed by the Court of Session.

The variation of circumstances depending upon whether there was a standing decree on which a charge could be given really makes no difference. In each case the

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