United Kingdom House of Lords Decisions

Lord Justice-Clerk—The Sheriff here has found certain facts, and we must assume—we are bound to assume—that he found those facts as basing his judgment upon the evidence which was before him. If there was a deficiency of evidence we have nothing to do with that. We must assume that he had evidence before him which justified him in coming to the conclusion upon the facts at which he arrived. I leave out of view altogether the question about the cataract, because it does not interfere with the appellant's work at present, and it is not an injury which necessarily involves the ultimate loss of his second eye. It is not suggested, and I understand cannot be suggested, that the cataract has anything to do with the accident which happened and whereby he lost the first one.

Now the appellant resumed his work as a miner, and the finding in fact of the Sheriff-Substitute is that his wage-earning capacity is not dimished by the loss of his right eye. That is a finding in fact. Mr Constable contended that that finding was unreasonable, and that we were entitled to say that we must find otherwise. I am not of that opinion. I think if the Sheriff had evidence before him which satisfied him of the fact that the man's earning capacity was not diminished by the loss of his right eye he was quite entitled so to find; and that can be decided not by theory at all but by the fact that for a considerable period of time the man with his one eye was doing his work in the mine and earning the same wages that he used to earn before, the same wages in fact as other miners were earning with the same output.

If that is so, it seems to me that the case of Rosie, as Lord Salvesen has said, is conclusive against the pursuer. In that case the question was one of rupture, and the possibility was stated there that the man could do a good deal of labour and the rupture might not affect him so far as his capacity to do his work was concerned. Nevertheless the question being whether at that time and with reasonable prospects for the immediate future he was able to do the work which he undertook to do and proved it by doing it without any appearance of injury caused by the doing of it, the Court of Seven Judges held by a majority of five to two that he was not entitled to any further compensation, and that the Sheriff had been wrong in allowing him compensation of 9s. 2d. a-week upon the footing that something would happen in the future of which there was no certainty whatever as to when it would occur or whether it would actually occur.

On these grounds I think there is no reason for interfering with the judgment at which the Sheriff-Substitute has arrived.

Lord Dundas—I am of the same opinion. I confess that when the learned counsel for the appellant was reading the Stated Case over to us and came to the tenth finding in fact, I wondered what his argument was going to be, because it seemed to me upon the facts that it was very difficult to see what was to be said to us to raise a question of law upon which the appellant could succeed. The point turned out to be that finding ten was an unreasonable finding. It was said to be unreasonable because it was alleged that it was logically inconsistent with the second finding. I do not think that is the case at all. The whole findings must be read and considered together. The tenth finding is, like the others, a pure question of fact upon which the Sheriff-Substitute has found. He may be right or he may be wrong upon it—I do not see any reason to suppose that he was wrong—but he arrived at it upon a consideration of the facts. I think it is final, and see no reason for our interference in the matter.

Lord Salvesen—I agree.

Hargreave, the appellant, appealed to the House of Lords, and in a supplementary statement set forth as the question which it was desired to have settled—“Whether the practice, which at one time was followed in both countries, of keeping the arbitration open by making an order for a nominal payment of compensation or by some other device, is competent in circumstances where the immediate effects of the accident are spent but where there is a prospect that incapacity may again develop at a later date?” Reference was made to Nicolson v. Piper, [1907] AC 215; Irons v. Davies & Timmons, [1899] 2 QB 330; Chandler v. Smith, [1899] 2 QB 506; Rosie v. Mackay, 1910 S.C. 714, 46 S.L.R. 999; Clelland v. Singer Manufacturing Company, July 18, 1905, 7 F. 975, 42 S.L.R. 757; Freeland v. Macfarlane, Lang, & Company, March 20, 1900, 2 F. 832, 37 S.L.R. 599; Ferrier v. Gourlay Bros. & Company, March 18, 1902, 4 F. 711, 39 S.L.R. 453; Anderson v. William Baird & Company, January 15, 1903, 5 F. 373, 40 S.L.R. 263; Owners of the “ Tynron” v. Morgan, [1909] 2 KB 66. The following reasons for reversal were, inter alia, set forth:—“2. Because supervening incapacity due to the said accident is in the circumstances reasonably to be apprehended by the appellant. 4. Because in the circumstances disclosed by the stated case the arbiter should have kept the arbitration

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