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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> O'Neill v. Giffnock Collieries, Ltd [1924] ScotLR 283 (06 February 1924) URL: http://www.bailii.org/scot/cases/ScotCS/1924/61SLR0283.html Cite as: [1924] SLR 283, [1924] ScotLR 283 |
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Page: 283↓
[Sheriff Court at Hamilton.
The Workmen's Compensation Act 1906, Second Schedule (7) as applied to Scotland, enacts—“the costs of and incidental to the arbitration and proceedings connected therewith shall be in the discretion of the … arbitrator, or sheriff.”
In an arbitration under the Workmen's Compensation act 1906 the arbitrator, having found that the workman was partially incapacitated and that the incapacity was due in part to the workman's failure to exercise his back, made an award as for partial incapacity, but found no expenses due to or by either party. No reason was assigned for refusing the claimant his expenses.
Held that there were no materials to justify the arbitrator in exercising his discretion as he had done, and that the workman was entitled to his expenses.
In an arbitration under the Workmen's Compensation Act 1906, in the Sheriff Court at Hamilton, between Charles O'Neill, drawer, 134 King Street, Pollokshaws, appellant, and the Giffnock Collieries, Limited, coalmasters, Giffnock Collieries, Thornliebank, Glasgow, respondents, the Sheriff—Substitute ( Hamilton) found no expenses due to or by either party.
The appellant appealed by a Stated Case, which set forth—“This is an arbitration in which the appellant claims compensation as for partial incapacity from 7th April 1923, in respect of an accident for which compensation had for some time been paid to him by the respondents as for total incapacity without any agreement or award.
Proof was allowed and led before me on 17th October 1923, and I found that the following facts were admitted or proved:—1. That on 31st May 1922 the appellant, while in the employment of the respondents, received personal injury by an accident arising out of and in the course of his employment. 2. That the said injury consisted of his straining his back through falling while endeavouring to replace a hutch upon an underground set of rails. 3. That prior to his accident the appellant's average weekly wage was £3. 4. That the respondents paid compensation to the appellant as for total incapacity at the rate of £1, 15s. per week—the sum of 15s. being payable under the Workmen's Compensation (War Additions) Acts 1917 and 1919—up to 7th April 1923. 5. That at the lastmentioned date they refused to pay further compensation on the ground that the appellant had recovered from the said injury and was fit for his former employment. 6. That the appellant on 7th April 1923 had, and now has, partially recovered from the said injury, and that he then was, and now is, fit for light work. 7. That he has not yet fully recovered from the said injury and is not fit for his former employment. 8. That his present state of partial incapacity is due in part to the said injury and in part to his failure duly to exercise his back by light work or otherwise. 9. That the appellant is at present unemployed and earned nothing. 10. That it was not proved that there was any employment available to the appellant for which he was at the present time capable, and 11. That 10s. per week is, in the circumstances, a reasonable amount of compensation to be paid by the respondents to the appellant.
I therefore awarded to the appellant the sum of 10s. weekly in name of compensation for partial incapacity for the period from 7th April 1923 until the further orders of Court, and found no expenses due to or by either party.”
The question of law for the opinion of the Court was—“On the foregoing facts was I bound to award expenses to the pursuer?”
The Sheriff-Substitute appended the following note to the Stated Case:—“After considering this case along with the medical assessor I have come to the conclusion that the claimant's condition is, and has since at least 7th April last been, one of partial disability due in part to the accident and in part to lack of proper treatment. I think that for some time past regular exercise for
Page: 284↓
his back would have been beneficial to the claimant, but I cannot say that but for his neglect of such exercise his incapacity due to the accident would have ceased. I therefore think that he is entitled to compensation for partial incapacity— Devlin v. Chapel Coal Company, Limited, 1915 S.C. 71, 52 S.L.R. 83. Argued for the appellant—The arbitrator was bound to award expenses to the appellant. The general rule that expenses followed success applied in the present case, and the Stated Case disclosed no materials which entitled the arbitrator to depart from the general rule. The appellant's neglect to take exercise was not a relevant ground for varying the general rule. In any event the arbitrator had already taken into account the appellant's self-neglect by awarding the appellant a reduced amount of compensation, and to refuse expenses in addition to making a reduced award of compensation amounted to the imposition of a double penalty on the appellant. Since the arbitrator had not stated in the Case any material which warranted him in refusing expenses to the appellant, the Court must assume that none existed— Murphy v. William Baird & Company, 1921 S.C. 891, 58 S.L.R. 611; Murphy v. Farme Coal Company, 1918 S.C. 659, 55 S.L.R. 557, per Lord Justice-Clerk (Scott Dickson) at 1918 S.C. 661, 55 S.L.R. 559; Feeney v. Fife Coal Company, 1918 S.C. 197, 55 S.L.R. 223, per Lord Justice-Clerk (Scott Dickson) at 1918 S.C. 200, 55 S.L.R. 255; Finlayson v. s.s. “Clinton” (Owners of), 1914, 7 B.W.C.C. 710; Adshead Elliott, Workmen's Compensation Act (7th ed.), pp. 433, 434, and 435. The case of Breslin v. Barr,& Thornton, 1923 S.C. 90, 60 S.L.R. 66, was also referred to.
Argued for the respondents—The rule that expenses followed success was not an absolute rule. The arbitrator was entitled to take into consideration any material fact. The personal relationship of the appellant to the circumstances at issue was the true ground on which to determine the question of expenses, and as the appellant had been in fault he was not entitled to his expenses — Cant v. Fife Coal Company, Limited, 1921 S.C. (H.L.) 15, 58 S.L.R. 74; Feeney v. Fife Coal Company ( cit)., per Lord Salvesen at 1918 S.C. 201, 55 S.L.R. 225.
Are there any materials in the case before us upon which the arbitrator was entitled to exercise a judicial discretion as he did, i.e., by refusing expenses to the appellant? I am of opinion that there are not. The only reason suggested which can be found, and that only by groping through the case, is in statement 8, where it is stated that the condition of the appellant was partly due to his failure to exercise his back and partly to the accident which he sustained. That does not prima facie appear to me to be a good reason for refusing him his expenses. am far from laying down, or suggesting that the Court should lay down, any general rule with regard to expenses, but treating this case in the light of the specific facts found by the arbitrator, I am of opinion that he has set forth no facts upon which he was entitled to pronounce the award as to expenses which he did. My only doubt in the matter is due to the fact that in all the cases cited to us the ground upon which the learned arbitrator had proceeded in refusing or granting expenses, as the case may be, was plainly before the Court of Appeal. In this case the ground upon which the learned arbitrator proceeded can only at the best be conjectured. But in view of two considerations—(first) that the learned arbitrator has not thought it worth while to set forth clearly and distinctly the ground upon which he proceeded in this case in disposing of expenses, and (second) that neither party has asked for a remit to clear up that matter in what after all is a very small case—I suggest to your Lordships that the case may be disposed of on the present findings, and that we should hold that the arbitrator was not entitled to take the course he did.
I therefore propose to your Lordships that the question put to us, varied in the manner I ventured to suggest in the course of the discussion so as to run—“Whether on the foregoing facts I was entitled to find no expenses due to or by either party?”—should be answered in the negative.
Miss Kidd, in the excellent argument which she submitted, contended that the arbitrator was justified in dealing with expenses as he did because there was divided success. I am quite unable to hold that there was divided success. It cannot be said that there was divided success merely because the workman got 10s., having asked £1. It was urged, however, that there was divided success in this sense, that incapacity was proved to be due in part to the
Page: 285↓
We are not told by the arbitrator why he has refused expenses. We must assume that he has stated all the material facts upon which he reached his conclusion. On the facts so stated I am of opinion that there are no materials to justify the arbitrator in exercising his discretion as he did, and that therefore the workman having been successful in the lis is entitled to his costs.
The Court pronounced this interlocutor—
“… Answer the question of law stated in the Case by finding that on the facts as stated the arbitrator was not entitled to find no expenses due to or by either party: Therefore sustain the appeal, reverse the determination of the Sheriff-Substitute as arbitrator on the matter of expenses, and remit to him to award expenses to the applicant and to proceed as accords; and decern.…”
Counsel for the Appellant— Fenton, K.C.— Keith. Agents— Simpson & Marwick, W.S.
Counsel for the Respondents—Dean of Faculty ( Sandeman, K.C.)— Kidd. Agents— W. & J. Burness, W.S.