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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Combe v. Bent Colliery Co., Ltd [1924] ScotLR 313 (01 March 1924) URL: http://www.bailii.org/scot/cases/ScotCS/1924/61SLR0313.html Cite as: [1924] SLR 313, [1924] ScotLR 313 |
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Page: 313↓
[Sheriff Court at Hamilton.
A pony driver in a pit, who had sustained an injury by accident, having become fit for light work and obtained employment with his old employers at the picking tables, was paid compensation for partial incapacity. Thereafter for a short period payment of the compensation was suspended in respect that the workman's wages exceeded those earned by him before his accident, but wages having fallen, the workman and his employers agreed that compensation was again payable, and fixed the rate of payment at 4s. 7d. per week. Thereafter owing to a general fall in wages the workman was able to earn only 13s. 4d. per week as a picker. Before the accident he was earning £2, 5s. per week. In an application by the workman for an increase of the compensation, held that the arbitrator was entitled to review the compensation and bound to determine to what extent the workman's diminished wage was due to his injury and to what extent to economic causes.
Fallens v. William Dixon, Limited, 1923 S.C. 951, 61 S.L.R. 8, and Quinn v. John Watson, Limited, 1923 S.C. (H.L.) 62, 60 S.L.R. 615, followed.
Black v. Merry & Cuninghame, Limited, 1909 S.C. 1150, 46 S.L.R. 812, and Quilter v. Kepplehill Coal Company, 1921 S.C. 905, 58 S.L.R. 588, distinguished.
James M'Combe, miner, Bothwellhaugh, appellant, being dissatisfied with a decision of the Sheriff-Substitute at Hamilton ( Shennan) in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) between him and Bent Colliery Company, Limited, coalmasters, Hamilton Palace Colliery, Bothwell, respondents, appealed by Stated Case.
The Case stated—“This is an arbitration in an application presented by the appellant on 18th April 1922, for an increase of the compensation payable to him in respect of partial incapacity. The case was called in Court on 2nd May 1922, when process was sisted of consent to await the issue of certain appeals taken in cognate cases. The sist having been recalled, I heard parties on 16th October 1923, when the following facts were admitted:—1. On 26th September 1916 the appellant, who is a pony driver, was seriously injured by accident arising out of and in the course of his employment with the respondents in their Hamilton Palace Colliery. He was totally incapacitated for work. The respondents admitted liability and paid him compensation in respect of total incapacity to 30th September 1917. 2. The appellant shortly thereafter commenced light work with the respondents at the picking tables and is still so employed, this being work suitable to his partially incapacitated condition. The appellant based his claim for review on the following averments:—‘Prior to pursuer's accident he was earning £2, 5s. per week. At the work at which he is presently employed he is being paid on an average about 13s. 4d. per week, which is, the sum he is able to earn in his injured condition. Pursuer was paid partial compensation at the rate of 13s. 9d. per week from the 30th day of September 1917 until May 1920 (except for a short period of total incapacity between said dates during which he was paid full compensation). His partial compensation was then reduced to 9s. 2d. per week until December 1920, when it was stopped in respect that the abnormal wages paid to workers in or about coal mines
Page: 314↓
which had been increased by various temporary additions to the day rates payable to such workers had resulted in his wages exceeding his pre-accident earnings. Partial compensation was again resumed on 28th February 1921, at the rate of 4s. 7d. per week on the withdrawal of certain of these temporary additions, which brought his earnings below his pre-accident earnings, said sum being then considered a reasonable proportion of the difference between the amount of his pre-accident earnings and wages which he was able to earn in his light occupation. Said difference amounted to 9s. 2d. per week. Since 18th October 1921 the difference between his pre-accident earnings and his earnings at light work has been largely increased by the withdrawal of all such temporary advances and greatly exceeded said sum of 9s. 2d. and at the date of the raising of this arbitration amounts to £1, 13s. 8d. per week. Said sum of 4s. 7d. is not a reasonable proportion of the difference between the pre-accident wages and the wages which he has since said 18th October 1921 been able to earn. On 18th October 1921 the pursuer called upon the defenders to agree with him on an increased partial compensation and based on the increased difference between pre-accident earnings and the sum which he was actually earning, but the defenders refuse to do so, and the present action has been rendered necessary. The defenders will be entitled to credit at the rate of 4s. 7d. per week from 18th October 1921.’ On 29th October 1923 I issued my award finding that the appellant was entitled to compensation of 4s. 7d. per week from 18th October 1921. I held that on the facts admitted and averred I had no power to review the agreed-on rate of 4s. 7d., being bound by the decisions of the Court of Session in Black v. Merry & Cuninghame, Limited, 1909 S.C. 1150, and Quilter v. Kepple-hill Coal Company, 1921 S.C. 905.”
The question of law was—“On the foregoing admissions and averments was I entitled to proceed to review the appellant's existing rate of compensation?”
The arbitrator appended the following note to the Stated Case:—“The workman was injured on 26th September 1916. He was paid compensation in respect of total incapacity to 30th September 1917, and thereafter compensation in respect of partial incapacity till December 1920. Thereafter payment of compensation was suspended till 28th February 1921 because the workman was during that period earning more than his average weekly earnings prior to the accident. At 28th February 1921, wages having fallen, the parties agreed that payment of compensation in respect of partial incapacity should be resumed at the rate of 4s. 7d. per week, and compensation at that rate has been paid since. The workman now claims that the weekly amount should be increased from 18th October 1921 on the ground that owing to a general fall in the rate of wages the sum of 4s. 7d. is no longer a reasonable proportion of the difference between the pre-accident wages and the wages which he has been able to earn.
If one were approaching this matter of new, the claim would seem within the spirit of the Workmen's Compensation Act. But it seems to me that the cases of Black v. Merry & Cuninghame, Limited (1909 S.C. 1150) and Quilter v. Kepplehill Coal Company (1921 S.C. 905) conclude the question so far as Scotland is concerned. Here the only ground stated for review is that since parties agreed on a rate of compensation there has been a general fall of wages in the coal-mining industry. I concede that I cannot reconcile these decisions with the English decision in Cory Brothers & Company, Limited v. Tarr, [1917] 2 K.B. 774, 10 B.W.C.C. 590, but I must follow the Scots decisions. I find that that case was quoted to the Court in the case of Quilter, but it is not referred to in the opinions. In the recent case of Fallens v. William Dixon, Limited (1923 S.C. 951) I find that Lord Hunter accepts the decisions in Black and Quilter while the Lord Justice-Clerk quotes with approval a passage from the opinion of Lord Justice Swinfen Eady in the case of Cory Brothers, the decision in Fallens' case being that the rule of Black and Quilter only applies where the injured workman is being employed in the same occupation as that in which he was injured. Accordingly I cannot accept the case of Fallens as ruling the present case.
The agent for the workman relied on the case of Quinn v. John Watson, Limited, 1923 S.C. (H.L.) 62. In that case compensation had also been suspended owing to the high wages ruling, but the essential difference between it and the present case is that there had been no subsequent agreement fixing a partial rate. Indeed the employers in Quinn's case resisted all liability for payment of compensation. This is purely a claim to vary an agreed-on rate on the ground that wages have fallen, and on the Scots authorities I have no option but to hold that the claim is not well founded in law.
I have thought it a convenient course to make an award in terms of the agreement.”
The appellant argued that the question should be answered in the affirmative, and referred to the following authorities — Quinn v. John Watson, Limited, 1923 S.C. (H.L.) 62, 60 S.L.R. 615; Fallens v. William Dixon, Limited, 1923 S.C. 951, per Lord Justice-Clerk (Alness) at p. 953, 61 S.L.R. 8; Quilter v. Kepplehill Coal Company, 1921 S.C. 905, 58 S.L.R. 588; Tarr v. Cory Brothers & Company, [1917] 2 K.B. 774, per Bankes, L.J., at p. 780; Black v. Merry & Cuninghame, Limited, 1909 S.C. 1150, 46 S.L.R. 812.
The respondent argued that the question should be answered in the negative, and referred to the following authorities— Quinn v. John Watson, Limited ( cit.); Fallens v. William Dixon, Limited ( cit.); Quilter v. Kepplehill Coal Company ( cit.); M'Neill v. Woodilee Coal and Coke Company, 1918 S.C. (H.L.) 1, per Lord Dunedin at p. 3, 55 S.L.R. 16; Tarr v. Cory Brothers & Company ( cit.).
Page: 315↓
At advising—
The learned arbitrator says in his note—and I agree with him—that “the claim would seem to be within the spirit of the Workmen's Compensation Act.” He, however, considered that he was disabled from giving effect to that view by reason of the decisions in Black (1909 S.C. 1150) and Quilter (1921 S.C. 905), and he accordingly found the appellant entitled only to compensation at the agreed-on rate of 4s. 7d. a-week from 18th October 1921. It appears to me, with all respect to the learned arbitrator, that he has misconceived the application of these decisions to the present case. In Black it is clear from Lord Low's opinion that the Court proceeded on the view that the post-accident earnings of the workman in normal times were the same as his pre-accident earnings, and that the sole operating cause of the diminished earnings which formed the basis of his claim was a general fall in wages. To that state of affairs the workman's accident and resulting incapacity had no relevancy, and accordingly his claim to review was refused. Again, in Quilter's case the sole foundation of the claim of the workman to review was a general fall in the rate of wages. There was no other relevant consideration. There was no avermerit to the effect that in consequence of the fall in wages the workman had suffered an increased loss which was at anyrate partially attributable to his accident. The Court accordingly held that his claim was irrelevant and negatived it.
In sharp contrast to these two cases stands the case of Fallens, 1923 S.C. 951. There the workman, who had been a miner, was constrained by reason of his accident to accept employment as a clerk to an education authority at a lesser wage, and a reduction having been made in the wages of the officials of that authority, while no change had been made in the rate of wages which he would have been able to earn as a miner had he been uninjured, he was held entitled to have his weekly payment of compensation reviewed. The case of Quinn ( 1923 S.C. 6, aff. 1923 S.C. (H.L.) 62) is to the same effect. There a miner, who was disabled by accident from following his vocation as a miner, obtained employment at a lesser wage as a surface worker. Wages having fallen and his incapacity having remained the same, he sought for review and was held entitled to obtain it.
The question in this case is, Does the appellant fall within the ambit of Black and Quilter or within the ambit of Fallens and Quinn? That question appears to me to admit of but one answer, viz., that it falls within the ambit of the latter two cases. Here the wages of the appellant before and after the accident were different, and the difference arises from the accident. Before the accident he was a pony driver earning high wages. After the accident he was a picker earning low wages. Had he not been injured the appellant might obviously not have been affected to the same extent by the slump in wages, for the datum line of his previous and his subsequent occupation is different. Non constat that to-day despite the fall in wages the appellant would not have been earning higher wages as an uninjured pony driver than he is now able to earn as a maimed picker. It is true that the appellant's avocation before the accident in this case was not different from his avocation after the accident, as it was in Fallens' case, for here both before and after his accident the appellant was employed in a mine. The learned arbitrator from what he says in his note seems to think that conclusive. I do not agree. In this case the appellant's grade of employment before the accident was different from his grade of employment after the accident and his wages were higher, and these considerations with the consequences which follow in their train seem to me to equiparate this case in principle to the cases of Fallens and Quinn, and to exclude it from the ratio decidendi of Black and Quilter. In Fallens' case it was not the difference in avocation which availed the workman in claiming review, but the higher wages which his former avocation involved. If the wages of a workman before and after accident remain the same, the mere fact that a fall in wages has occurred during the latter period will not entitle him to review. But if on the other hand his wages after the accident
Page: 316↓
The facts are substantially as follows:—[ His Lordship narrated the facts of the case and the averments of the appellant, and continued]—Both of the cases referred to by the arbitrator appear to me distinguishable from the present. In Black the workman was no doubt employed prior to the accident as a waggon-shifter and, on resuming work after the accident, as a haulage engineman, but his wages before and after the accident were the same, and the ground of the decision of the Court was that his earning capacity was in no way affected either by his injury or by the fall in wages on which he founded. Lord Low says—“The respondent [ i.e., the workman] is in no worse a position than he would have been in if he had never been injured but had continued throughout to be employed as a shifter.” In Black there had been an inquiry into the facts. Quilter was a decision on relevancy, and the case was thrown out because the only averment made by the workman was the bald and bare statement that there had been a general reduction in wages. Whatever he may have intended to imply he said nothing to indicate that this fall in wages in any way affected his wage-earning capacity, not even that the difference between his pre-accident wages and his present earnings was increased thereby, or that the loss attributable to his accident had in any other way been enhanced. I think therefore that the arbitrator was in error in holding that he was barred from entertaining the present application by the decision in Quilter's case.
On the other hand I think that the cases of Fallens v. William Dixon, Limited (1923 S.C. 951) and Quinn v. John Watson, Limited (1922 S.C. 6, 1923 S.C. (H.L.) 60), in both of which in this Court Quilter was distinguished, are authorities which support the appellant's contention. I refer particularly to Quinn's case in which the judgment of this Court was affirmed by the House of Lords because the facts, save in one matter, are very similar to the facts in the present case. The injured workman had, owing to accident, become disabled for the ordinary work of a miner and fitted only to undertake light labouring work at wages considerably less than his pre-accident wages. He was awarded partial compensation, Thereafter, owing to an abnormal rise in wages his earnings for light work came to exceed his pre-accident wages as a miner and his right to compensation became suspended. A general fall in wages having taken place his actual earnings came again to be less than his pre-accident wages, and he applied for payment of the compensation formerly awarded him. His claim was held to be well founded. Now, the only difference between the facts in the present case and Quinn appears to be that in the present case there is a standing award made subsequently to the date when the appellant's earnings had again fallen below his pre-accident wages, and it is said in effect that apart from some increase in the appellant's physical incapacity that award must fix for all time the maximum, though not the minimum, partial compensation to which he can be found entitled. The difference between the cases appears to me to be one of circumstance rather than of principle.
In determining the amount of compensation to which a particular incapacitated workman is entitled regard must be had not only to the actual wage he is capable of earning but to the amount of that wage in relation to his pre-accident wages. The Workmen's Compensation Act 1906, Schedule I (3), provides that “in the case of partial incapacity the weekly payment shall in no case exceed the difference between the amount of the average weekly earnings of the workman before the accident and the average weekly amount which he is earning … after the accident, but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper.”
It seems to me that when owing to a fall from whatever cause the amount a workman partially incapacitated is competent to earn has become substantially less than it has hitherto been, thereby increasing the difference between it and the wage which he would have been able to earn but for his injury, there has been such a change of circumstances as to entitle him, if he can, to prove that a part, if not the whole, of this increased difference is due to his partial incapacity. The difference, when 4s. 7d. of compensation was awarded, was 9s. 2d. and it is now £1, 13s. 8d. In my opinion he
Page: 317↓
In coming to this conclusion I have not omitted to note the distinction referred to by Lord Dunedin towards the conclusion of his judgment in Quinn between that case and cases where there is a standing award, but a consideration of the opinions expressed in M'Alinden v. James Nimmo & Company (1019 S.C. (H.L.) 84, [1920] A.C. 39) to which his Lordship also draws attention, appears to me to warrant the result I have reached. The circumstances which existed at the date of the standing award are not the circumstances which exist now. There is some additional and different matter which ought now to be taken account of. Accordingly I agree that the question should be answered in the affirmative and a remit made to the arbitrator to review.
When the averments made by the appellant in his application, which has been held to be irrelevant, are examined it appears that the great drop in his wages, shown by contrasting his wages at 18th April 1922 with those earned when the compensation was agreed at 4s. 7d., arose from the withdrawal of certain temporary advances that had been made owing to war conditions. If, however, these averments are further examined it also appears that as those temporary advances were put on to wages, the amount payable to the appellant as compensation was reduced. There would appear, therefore, to be something anomalous in allowing temporary advances to reduce the amount of compensation but refusing any restoration of compensation on the withdrawal of such advances. Do the decisions referred to by the learned arbitrator justify such a result? If they do, are they not inconsistent with the decisions of the House of Lords, i.e., Murray, &c., to which I have already referred, and M'Alinden, 1919 S.C. (H.L.) 84, subsequently dealt with?
In Black's case a workman who had lost a hand by an accident received compensation under the Workmen's Compensation Act 1897 from his employers until he was again taken into their employment at a wage of 18s. 6d. per week, the wage he had received before the accident. Subsequently, owing to a general fall in wages, he received only 16s. 7d. It was held that he was not entitled to compensation in respect of the diminution in his earnings. The ratio of that decision is that the workman was not receiving less wages because of any incapacity brought about by the accident but solely on account of economic causes. As was explained by Lord Low, the respondent was in no worse a position than he would have been in if he had never been injured but had continued throughout in his employment. The decision appears to me to afford no authority for the course taken by the arbitrator in dismissing the appellant's application as irrelevant. The case of Quilter causes more difficulty. According to the rubric in that case a miner who was in receipt of compensation in respect of partial incapacity at a rate which his employers were willing to continue claimed an increase of the rate, stating as the sole basis of his claim that there had been a general reduction in wages to the extent of at least 2s. per shift. In giving his decision the Lord ustice-Clerk said (at p. 907)—“It is clearly settled in our procedure under this Act that the arbitrator is not only entitled to determine a question of relevancy but, if the point is quite sharply raised, ought to answer a question of relevancy so as to save needless expense which might result if proof were allowed.” So far as I can see from the report the earlier case of Bankine v. Alloa Coal Company (5 F. 1164) was not referred to in the discussion. In that case the Judges of the First Division of the Court (Lord Adam, Lord M'Laren, and Lord Kinnear) expressed the opinion that as proceedings under the Workmen's Compensation Act were intended to be of a summary character it was inadvisable to have separate discussions and decisions upon preliminary pleas. For my own part I think the cases in which it is expedient to have applications either for awards or alteration of awards determined upon a plea of relevancy must be extremely rare. What, however, is the effect of the decision in Quilter's case? If it means that under no circumstances can a general fall in wages justify any alteration upon an award made in favour of a partially incapacitated workman, the decision is in direct conflict with the decision pronounced by the English Court of Appeal in Tarr v. Cory Brothers & Company, [1917] 2 K.B. 774. According to the headnote in that case, upon an application to review a weekly payment in a case of partial incapacity, the fact that since the last award there has been a substantial alteration in the rate of wages common to the trade in which the workman is employed is one which the arbitrator is not only entitled but bound to take into consideration. Such an alteration is a change of circumstances which gives jurisdiction to entertain an application to review. Assuming such a discrepancy between a Scots and an English case and no indication of opinion by the House of Lords I should be bound to follow the decision of the Scots
Page: 318↓
In M'Alinden v. James Nimmo & Company a miner who was partially incapacitated owing to an injury to three of his fingers was awarded compensation. Ten weeks later he applied for review of the weekly payment. It was proved that the applicant was able for light work only, that there had been no change in his physical condition since the date of the former award, but that he had on several occasions applied for work without success, either, because there was no vacancy in the works at which he made application or because employers gave a preference to those injured in their own employment. The House of Lords, reversing the decision of the Second Division of the Court, held that there was evidence upon which the compensation could competently be increased by the arbitrator. Viscount Finlay said (at p. 85)—“It appears to me that the amount of an award may be reviewed, either if there has been a change of circumstances or if further events have put a different complexion on the case.” He then proceeds to point out that one of these events may be the state of the labour market. In the case of Murray it was held that where payment of compensation to a partially disabled workman has been discontinued because of the fact that owing to a general rise in wages he earns more than his average earnings before his accident, and where subsequently owing to a general fall in wages the wages earned by him again fall below the average wages he earned before the accident, his right to receive compensation in respect of his partial incapacity revives. Between those cases and the present there is undoubtedly the distinction that here there is a standing award which it is sought to alter simply upon the ground that the wages in respect of partial employment have fallen. The principle upon which the decision is based, however, appears to me to be ample to cover the present case.
The statute itself gives the workman his right to compensation, and the rules under which the amount is to be calculated are set forth in the First Schedule to the Act. They are referred to in detail in Lord Dunedin's opinion in the case of Murray to which I have referred. It is sufficient to say that, in the case of partial incapacity, a discretion is given to the arbitrator limited in two respects, first, that the amount shall not exceed the difference between the workman's average pre-accident wage and the amount which he is earning or is able to earn in some suitable employment; second, that it shall not exceed £1. Between the case of a man earning £1, 6s. 10d. per week and one earning 13s. per week, even though the drop is caused by the condition of the labour market and not by increased physical incapacity, there is surely such a change of circumstances as would or might justify an arbitrator in increasing an award of 4s. 7d. per week. Some part, at all events, of the workman's diminished earnings is or may be ascribed to his incapacity and not to economic causes. I do not think that the arbitrator was justified in dismissing the application without inquiry.
The question put ought, in my opinion, to be answered in the affirmative, and the case remitted to the arbitrator to take a proof and to allow such increased compensation, if any, as he considers the circumstances justify.
Page: 319↓
The statement of Lord Dunedin in Quinn (at p. 67) appears to be exactly in point and to negative the views expressed by the arbitrator in his note. Lord Dunedin says—“The features are (first) partial incapacity found and compensation awarded; (second) suspension of the payment of compensation owing to the wages actually earned exceeding the pre-accident wage; and (third) wages actually earned falling below the pre-accident wage. The right to receive compensation for partial incapacity then revives, and the amount due in respect thereof necessarily involves inquiry as to what the man is competent to earn.”
I am therefore of opinion that the question of law in this and the other stated cases which it rules should be answered in the affirmative.
The Court answered the question of law in the affirmative.
Counsel for the Appellant— Fenton, K.C.— Keith. Agents— Simpson & Marwick, W.S.
Counsel for the Respondents—Dean of Faculty ( Sandeman, K.C.)— Marshall. Agents— W. & J. Burness, W.S.