Scottish Court of Session Decisions

This was an appeal from an award by the Sheriff-Substitute of Lanarkshire at Glasgow (Spens) in an arbitration under the Workmen's Compensation Act 1897 between Mary Waterson or Small and M'Cormick & Ewing, licensed general weighers and samplers, Glasgow. The claim of the former was for 300 in respect of her husband's death from injuries accidentally sustained while in the employment of the latter.

The following facts were set forth by the Sheriff-Substitute in the stated case as having been established by the proof:—“(1) That the deceased Thomas Small was employed by the defenders as a dock labourer on 4th November 1898, and was on that date killed at Princes Dock, in consequence of the handle of a certain hand-crane which he was using in connection with the lowering of bales of esparto grass revolving from some unexplained cause too rapidly, and thus striking him on the head; (2) that the deceased had been employed by the defenders from October 1896 onwards to the date of his death at irregular intervals for a period amounting in all to 77 days, and was paid in all the sum of £21, 15s. 9d. for the work performed by him, as follows:—[ Here followed a detailed statement of the days and hours worked by the deceased for M'Cormick & Ewing and of the amount earned by him.] (3) That deceased was employed by the hour, could leave or be dismissed from his employment at the end of any hour, but his wages for convenience were paid to him at the end of each day for the number of hours he had worked during that day. ‘On these facts,’ continued the Sheriff,’ I found that the sum which fell to be divided between the widow and children was £261, 5s., made up as follows:—I divided the 77 days during which deceased worked with appellants by 6, being the lawful working days of a week, I then divided the £21, 15s. 4d. by the number of weeks so ascertained, and brought out the sum of £1, 13s. 6d. as the average weekly earnings of deceased, and multiplying this by 156 brought out the total sum of £261, 5s.”

The following questions of law were submitted by the appellants M'Cormick & Ewing for the opinion of the Court:—“1. Are the dependents of the deceased Thomas Small, looking to the nature of his employment, entitled on his death to compensation under the Workmen's Compensation Act 1897? 2. On the assumption that this first question is answered in the affirmative, is the amount of compensation awarded in accordance with the provisions of the Workmen's Compensation Act and relative schedules?”

The Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37), Schedule 1, sec. 1 ( b), enacts that “where total or partial incapacity for work results from the injury,” the amount of compensation under the Act shall be “a weekly payment during the incapacity not exceeding 50 per cent. of his average weekly earnings during the previous twelve months.”

Argued for the appellants—The Workmen's Compensation Act 1897 made the “average weekly earnings” the unit of calculation in determining the amount of compensation. The Sheriff's method of arriving at the result was quite erroneous. The true method was to take the period of employment as fixed by the Sheriff-viz., from 29th October 1896 to 4th November 1898—to ascertain the number of weeks in that period; to divide the total amount of wages by that amount, and then to multiply the quotient by 156, the number of weeks in three years. This process ( £21 15s. 9d. 105 × 156) gave as a result £36, 9s. 2d. in place of the total of £261, 5s. awarded by the Sheriff. The principle of the Act of 1897 was to regard the workman's actual and not his potential earnings. This method of calculation had been followed in Keast v. Barrow Hematite Steel Co., 15 T.R. 141, and in Price v. Marsden & Sons, L.R. [1899], 1 Q.B. 493.

[Counsel in opening for the reclaimers also submitted an argument that piece-labourers, or any labourers engaged for less than a week, did not fall within the scope of the Act of 1897, but the point was not argued by senior counsel.]

The respondent argued—Granted that the Sheriff's method of calculation could not be defended, that of the appellants was equally erroneous. The reasonable method was to take the number of weeks during the whole or any portion of which the deceased was employed by the appellants, and to divide the total by that. The result was a weekly average of 18s. 1d. per week, in place of 4s. 2d., and a total sum of £141. This result of the appellants' mode of calculation would be that a man regularly employed for a week would be in a better position than a man who had been employed for several years though his work had been intermittent. The Sheriff's statement showed that in the employment of the deceased by the appellants there had been a gap of five months, from July to December 1897. That period, at all events, should be excluded from the reckoning in endeavouring to ascertain and fix the average weekly earnings.