Scottish Court of Session Decisions

The Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37) enacts:—Section 1 (1) “If in any employment to which this Act applies, 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 contains the following provision:—“(1) The amount of compensation under this Act shall be—( a) where death results from the injury—(i) if the workman leaves any dependants wholly dependent upon his earnings at the time of his death, 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 those sums is the larger, but not exceeding in any case £300, provided that the amount of any weekly payments made under this Act shall be deducted from such sum, and if the period of the workman's employment by the said employer has been less than the said three years, then the amount of his earnings during the said three years shall be deemed to be 156 times his average weekly earnings during the period of his actual employment under the said employer.”…

This was an appeal in an arbitration under the Workmen's Compensation Act 1897 before the Sheriff-Substitute at Hamilton ( Davidson), between William Baird & Company, Limited, coalmasters, Glasgow, appellants, and Mrs Urse Jakamawicus or Leonard, widow of Lenawarc Jakamawicus, commonly known as John Leonard, miner, Bellshill, claimant and respondent. The claimant claimed compensation in respect of injuries received by her husband on 21st November 1900 while in the employment of the appellants at Bothwell Park Colliery, which resulted in his death.

The facts admitted or proved as set forth in the stated case were as follows:—“That the deceased was employed by the appellants on 20th November 1900, and descended their pit to dig coal on the following day: That before commencing work on said last-mentioned date his lamp went out, and he took it and a lighted one, borrowed from a fellow-workman, to the lamp station: That while returning he was crushed by a rake of hutches, and subsequently died from his injuries: That he had earned no wages, and was entitled to none from the appellants.”

The Sheriff-Substitute found that the average weekly wage of the deceased was nil, and that his widow the claimant was entitled to the alternative sum of £150 under the first schedule of the Act.

The question of law for the determination of the Court was—“Whether the applicant is entitled to compensation under the first schedule of section 1, sub-section ( a) (i), of said Act, the accident which caused the death having befallen deceased after he had descended appellants' pit to work, but before he had actually commenced work and before he had earned anything?”

Argued for the appellants—No workman was entitled to any compensation under the Act unless he had earned some wages. If a workman was seriously injured, he was not entitled to any compensation unless he had earned something, and it would be anomalous that in the same circumstances, if he was killed, his representatives should be entitled to compensation. The case of Lysons v. Andrew Knowles & Sons, Limited [1901], A.C. 79, did not touch the point. That case decided that a generous construction must be placed on the statute, but the present case was a casus improvisus.

Argued for the claimant and respondent—The enacting clause of the statute founded on was section 1, and that section provided that compensation should be given in every case where the workman was employed in an employment to which the Act applied. What employment meant was not doubtful. Section 7 showed that employment was constituted by a contract of service, express or implied. There was no doubt in this case that there was between employer and employed that consensus which completed a contract of service. In Robert Forrester & Company v. M'Callum, March 12, 1901, 38 S.L.R. 448, it was decided that a workman did not require to have been three years in the employment in order to entitle his representatives to the minimum award of £150. If there had been employment, however short, the representatives of the workman were entitled to that sum.

At advising—