Scottish Court of Session Decisions

This was a stated case on appeal from a decision of the Sheriff-Substitute ( Guy) at Edinburgh under the Workmen's Compensation Act 1906, between Colin Macandrew, builder, 13 Lauriston Gardens, Edinburgh, appellant, and Patrick Gilhooley, labourer, residing at 168 Lauriston Place, Edinburgh, respondent.

The Case stated, inter alia—“This is an arbitration under the Workmen's Compensation Act 1906, arising out of applications by the appellant and respondent respectively to have memoranda of agreement alleged to have been entered into between them recorded in the special register kept for the purpose under the Act by the Sheriff-Clerk of Midlothian.

The memorandum of agreement alleged and founded on by the appellant was lodged with the Sheriff-Clerk of Midlothian on 3rd March 1910, and that by the respondent on 12th April 1910. Both were duly intimated in terms of the statute, and objections to the genuineness of each were thereafter lodged by the parties respectively.

The appellant's memorandum set forth that the respondent ‘claimed compensation from the’ appellant ‘in respect of personal injury, viz., injury to skull and shoulder caused by accident in the employment of the’ appellant at New Geographical Institute, Duncan Street, Edinburgh, on 3rd November 1909. The question in dispute, which was as to the amount and duration of compensation, was determined by agreement. The agreement was made on 28th February 1910, and was as follows, viz.—‘That the’ respondent ‘having been paid the sum of Ten pounds, two shillings and sixpence sterling, in name of compensation, accepted same in full satisfaction and final discharge of compensation payable, or to become payable, and of all claims competent,

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or which might become competent, to him in respect of said personal injury and accident, and a discharge was granted by him accordingly.’ …

The respondent's memorandum, after narrating the accident referred to, stated that an agreement was come to by the parties on 23rd December 1909 as follows—‘That the’ appellant ‘should pay to the’ respondent ‘the sum of 11s. 3d. weekly during incapacity.’ …

I allowed a proof in each of the applications.…

The following are the facts admitted or proved—… The respondent while in the employment of the appellant at New Geographical Institute, Duncan Street, Edinburgh, on 3rd November 1909, received personal injury by accident arising out of and in the course of his said employment, viz., injury to skull and shoulder. By said injury the respondent was totally incapacitated for work, the injury necessitating the operation of trephyning the skull, the result of the operation being that the bone removed has not been replaced, and the respondent has now a part of his brain that is not protected by bone. The appellant admitted his liability for a weekly payment to the respondent under the Workmen's Compensation Act 1906, and agreed to pay him the sum of 11s. 3d. per week, being 50 per cent. of his average weekly earnings before the accident, and that weekly sum was paid by the appellant to the respondent for the period from the date of the accident down till 9th March 1910. The first date on which the appellant actually made payment of compensation to the respondent was on 23rd December 1909, when he took from him a receipt for arrears of compensation due up till 22nd December. On more than one occasion thereafter the appellant paid to the respondent more than one week's compensation at a time. On 28th February 1910 the respondent waited on the appellant's cashier, and asked for payment of his compensation for the week then nearly expired, and also for payment of another week's compensation in advance. The respondent then received from the appellant's cashier two weeks' compensation, amounting to £1, 2s. 6d., and the appellant's cashier took from him two separate receipts therefor and that as for compensation, as will appear from the document after quoted, viz.—for the two weeks ending on 2nd March and 9th March respectively. At the same time the appellant's cashier took from the respondent the cumulative receipt, headed ‘Final Discharge,’ which also appears in the document after quoted. Said document is as follows:—‘[ quoted supra in rubric].’

No agreement between the parties other than is represented by the before-mentioned receipt was either averred or proved.

The respondent is a man of ‘very low mental type’ as deponed to by the medical witness adduced by the appellant. He can neither read nor write nor sign his name. The whole of said receipts for weekly payments and the said cumulative receipt headed ‘Final Discharge’ are only signed by the respondent by his mark. The said cumulative receipt was read over to the respondent before he adhibited his mark to it. The appellant's cashier did not himself understand or explain to the respondent what was meant by ‘all claims whatsoever which the respondent might have against the appellant, but he did explain to him that ‘if he signed that receipt he was signing off and was not entitled to any more compensation.’ There is no evidence in the case indicating that the appellant at any time made any misrepresentations to the respondent to induce him to sign the said receipt. At the time when the said cumulative receipt was signed the respondent expressed to the appellant's cashier the anticipation that he would be fit for work in another week, and the cashier deponed that he thought he was foolish in anticipating this, as he took it that if he was not in a week's time able to resume his occupation he could not come back for any more compensation, but the respondent said that he would take the risk of that upon himself. The respondent was on said 28th February 1910, and still is, totally incapacitated for work as the result of said accident, or, at all events, he has not recovered his capacity for work to such an extent as would entitle the appellant to have his compensation diminished. The said cumulative receipt is not and does not bear to be a discharge of the respondent's rights under the Act on the footing that his incapacity for work had ceased, and is not and does not bear to be an agreement under the Act for the redemption of a weekly payment by a lump sum the memorandum of which might have been laid before the arbitrator by the Sheriff-Clerk under paragraph 9 ( d) of the Second Schedule annexed to the Act, the whole money payment made to the respondent having been so made in payment of weekly compensation only. All that was paid to the respondent on 28th February that was not then due as compensation was one week's compensation, 11s. 3d., for which the appellant took a receipt as for compensation paid in advance. No adequate sum, in fact no sum at all, was paid to the respondent as the consideration for redemption of the weekly payment. The said cumulative receipt does not bear to be a discharge of any right to compensation beyond 9th March 1910 or of any other future claim of the respondent. It is not stamped as a discharge but only as a receipt.

I accordingly held that the memorandum of agreement sought to be recorded by the respondent was genuine, but that the memorandum of agreement sought to be recorded by the appellant was not genuine, in respect (1) that said memorandum bears to be a memorandum of an agreement to redeem a weekly payment for a lump sum of £10, 2s. 6d., no such agreement having been made and no such payment, in fact no payment at all, having been made, in redemption of the weekly payment; (2) that said memorandum bears that the respondent had accepted said sum in full

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satisfaction and final discharge, not only of compensation payable, but of compensation to become payable to him, and of all claims, not only then competent, but which might become competent to the respondent, no such discharge of future compensation or claims having been expressly or impliedly granted by the respondent; (3) that the said cumulative receipt was not a valid discharge of the respondent's right to compensation subsequent to 9th March 1910. I therefore granted warrant to record the memorandum lodged by the respondent, and refused warrant to record that lodged by the appellant. …”

The following question was stated, inter alia, for the opinion of the Court—“5. Standing the said cumulative receipt, was I entitled to grant warrant to record the memorandum of agreement presented by the respondent?”

Argued for the appellant—The questions raised by the Sheriff as to the statutory termination of compensation in respect either of recovered capacity or redemption of weekly payments were not here in point. The respondent had granted the appellant a total discharge. The Sheriff had forgotten that this was a discharge at common law, and barred any claim on the respondent's part. It was unimpugnable in respect that on the facts neither misrepresentation by the appellant inducing the discharge was proved nor essential error— Dornan v. Allan & Son, November 22, 1900, 3 F. 112, 38 S.L.R. 70; Hanley v. Niddrie and Benhar Coal Company, Limited, 1910 S.C. 875 (Lord Kinnear at 880, and Lord Salvesen at 885), 47 S.L.R. 726; Ellis v. Lochgelly Iron and Coal Company, Limited, 1909 S.C. 1278 (Lord President at 1282), 46 S.L.R. 960; Wood v. North British Railway Company, July 2, 1891, 18 R. (H.L.) 27, 28 S.L.R. 921. There was clearly no essential error here. What happened was that the respondent had made a wrong estimate as to the time it would take him to recover. Nor was the discharge entirely gratuitous. On 28th February 1910 he got compensation up to 9th March, which was not then due. Lord Ardwall referred to the case of Dickson v. Halbert, February 17, 1854, 16 D. 586.

The respondent was not called upon.