Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (b Edw. VII, cap. 58), section 1 (1), enacts—“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, section 1, enacts—“The amount of compensation under this Act shall be—… ( b) Where total or partial incapacity for work results from the injury, a weekly payment during the incapacity not exceeding fifty per cent. of his average weekly earnings during the previous twelve months, if he has been so long employed, but if not, then for any less period during which he has been in the employment of the same employer, such weekly payment not to exceed one pound.”

George M'Kinstrey, appellant, being dissatisfied with an award of the Sheriff-Substitute at Airdrie ( Lee) in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) brought by the Auchinlea Coal Company, Limited, respondents, against him, appealed by Stated Case.

The Case stated—“The case was heard before me … when the following facts were admitted (1) That on 13th August 1918 the claimant and appellant sustained an injury, resulting in the loss of his left foot, by accident arising out of and in the course of his employment with the respondents as a brusher, earning average wages of £4, 17s. 6d. weekly. (2) That as the result of said injury the claimant and appellant was totally incapacitated until 4th June 1919, and was paid compensation by the respondents in terms of the Workmen's Compensation Act 1906, at the maximum rate of £1 weekly. (3) That on said 4th June the claimant's and appellant's said total incapacity ceased, and he undertook employment with another employer at a weekly wage of £2, 4s. (4) That it was agreed by the claimant and appellant and the respondents that on 4th June 1919 the claimant and appellant was still partially incapacitated by the injury sustained on 13th August 1918, and that in respect of and during the continuance of said partial incapacity he should be paid compensation at the rate of £1 weekly by the respondents. (5) That said compensation was paid from 4th to 13th June 1919. (6) That on 13th June 1919 the claimant and appellant was totally incapacitated by an injury to his left hand. (7) That in respect of his total incapacity resulting from the said injury on 13th June 1919 the claimant and appellant has since said date received, and is presently receiving, from his last employer compensation under the Workmen's Compensation Act 1906, at the rate of £1 weekly, together with the increment of 5s. under the War Addition Act 1917; and (8) that it is not maintained by the respondents that the claimant's and appellant's partial incapacity arising from the injury of 13th August 1918 has ceased or been diminished since 4th June 1919.

“On these facts I found in law that as the claimant and appellant was presently receiving from another employer the maximum compensation provided by the Workmen's Compensation Act 1906 to be paid to a workman incapacitated for work by injury by accident, his claim under said Act to any payment of compensation by the respondents fell to be suspended. I therefore ended until further order the weekly payment by the respondents to the claimant and appellant as on 13th June 1919.”

The questions of law were—“(1) Was I right in holding that the weekly payments of compensation to the claimant and appellant by the respondents falls to be suspended in respect that he is presently receiving from another employer the maximum compensation provided by the Workmen's Compensation Act 1906? (2) Whether on the facts stated I was right in suspending the claimant's and appellant's compensation?”

Argued for the appellant—The statute gave a right to compensation for injury by

Page: 81↓

accident arising out of and in the course of the employment. This was not taken away by anything contained in the First Schedule. Every contract of employment entitled the workman to compensation whenever injury by accident arose. There was no limitation of the total compensation to the sum of one pound in respect of a succession of injuries in the same or different employment. This was the maximum fixed only in respect of each injury— Harwood v. Wyken Colliery Company, [1913] 2 KB 158; M'Nally v. Furness, Withy & Company, Limited, [19131 3 K.B. 605; Hodgson v. West Stanley Colliery, [1910] AC 229 per L.C. Loreburn at pp. 231, 233, 47 S.L.R. 881. Provision was made in the statute for the redemption of any weekly payment in the case of partial incapacity (Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58, Sched. I, section 17). But no provision was made for the repayment of redemption money paid under this section in the event of the workman becoming subsequently totally incapacitated by another accident. Nor was there any provision for the allocation of compensation among two or more employers. The statute thus contemplated concurrent awards. M'Callum v. Quinn, 1909 S.C. 227, 46 S.L.R. 141, was also referred to.

Argued for the respondents—The statute gave compensation not for the injury but for the consequences of the injury. The consequences were total or partial loss of wage-earning capacity, and this might be caused by a number of injuries— Harwood v. Wyken Colliery Company, Limited ( cit. sup.), per. J. Buckley, p. 164. The compensation payable in respect of loss of wage-earning capacity could never be assessed at more than £1 altogether. The statute gave no right not prescribed by the schedule. The arbitrator's award here was merely suspensory, and did hot preclude the workman from having recourse against the first employer in altered circumstances. But in the circumstances the workman must have recourse in the first place against his last employer— Noden v. Galloways Limited, [1912] 1 KB 46, per Cozens-Hardy, M.R., at p. 49, and Fletcher Moulton, L.J., at pp. 51 and 52. In the Sheriff Court the question here raised had been decided by the arbitrator adversely to the appellant in at least three previous cases. M'Neill v. Woodilee Coal and Coke Company, Limited, 1918 S.C. (H.L.) 1, 55 S.L.R. 15, was also referred to.