Scottish Court of Session Decisions

By the Workmen's Compensation Act 1897 it is provided in respect to a claim for compensation (Schedule I (1) ( b)—“When total or, partial incapacity for work results from the injury, a weekly payment during the incapacity after the second week not exceeding fifty per cent. of his average weekly earnings during the previous twelve months … such weekly payment not to exceed one pound. (2) In fixing the amount of the weekly payment, regard shall be had to the difference between the amount of the average weekly earnings of the workman before the accident and the average amount which he is able to earn after the accident, and to any payment not being wages which he may receive from the employer in respect of his injury during the period of his incapacity.”

By clause 12 of the same schedule (I) it is provided—“Any weekly payment may be reviewed at the request either of the employer or of the workman, and on such review may be ended, diminished, or increased.”

In a case stated for appeal at the instance of Robert Freeland junior in an action at his instance against his employers, Messrs Macfarlane, Lang, & Company, bakers, Glasgow, for compensation under the Workmen's Compensation Act 1897, the Sheriff-Substitute ( Fyfe), found the following facts admitted or proved:—(1) That appellant, a boy of about fourteen years of age, had been for about three months prior to 12th November 1898 in the employment of respondents at their bakery in Wesleyan Street, Glasgow; (2) that his duties were general, but he was chiefly engaged preparing fruit for baking; (3) that on 12th November 1898, in the course of his employment, and upon instructions from respondent's foreman, appellant proceeded to dust the rollers of a machine used for crushing almonds (4) that whilst so engaged, his right hand was drawn between the revolving cylinders and injured; (5) that in consequence portions of his thumb and of three fingers had to be amputated, occasioning permanent partial disablement; (6) that said accident arose out of and in consequence of appellant's employment within the meaning of the Act; (7) that prior to the accident the wage earned by appellant was 5s. per week; (8) that whilst he was off duty respondents continued to pay appellant 5s. per week (9) that when he was able appellant returned to the factory, and the respondents employed him at nondescript work at the same wage of 5s. per week, which has recently been increased to 6s.; (10) that in respondents' factory the ordinary course of employment as regards boys is, that after some months' nondescript service a boy is employed as a packer (on piece work),

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which is work done by boys of a similar age and capacity to the appellant; (11) that boys employed as packers work on piecework, and earn an average wage of 8s. per week; (12) that at the time of his accident the appellant had reached such an age and acquired such experience as made him suitable as a packer; (13) that the injury to his hand precludes him from obtaining employment as a packer, and he is still engaged at nondescript work, but he earns as high a weekly wage as he did before the accident.”

On these facts the Sheriff found in law— “(1) That in respect the Workmen's Compensation Act does not take any cognisance of what may be the effect upon his future career of a workman's permanent disablement, but deals only with its present effect as regards earning of wages, and the only basis of compensation recognised by the Act being that expressed in section 2 of the first schedule, the Act does not apply where present reduction of wage is not one of the results of the accident; and (2) that in respect the appellant at the date of his application to the Court was able to earn, and in point of fact was earning, a weekly wage not less than he earned before the accident, there arose no ‘difference’ in the sense of section 2 of the first schedule of the Act, and therefore that the appellant was not entitled to an award of compensation under the Act.”

He accordingly dismissed the application.

The following questions of law were stated—“(1) Whether, having regard to the fact that the weekly wage which the appellant is presently able to earn is not less than the weekly wage which he earned before the accident, any claim for compensation arises under the Act? and (2) Whether the appellant's application for an award of compensation was properly dismissed? “

After counsel had been partly heard on the appeal the Court remitted the case to the Sheriff, with the following interlocutor—“Remit to the arbitrator, with instructions to state whether the appellant was employed after the accident at the same kind of work as that at which he was employed before the accident, and if there was any difference in that work, what was that difference.”

The Sheriff submitted the following report—“(1) That during the period ‘before the accident’—that is, from the time of his entering the factory in August 1898 till the occurrence of the accident on 12th November 1898—the petitioner was one of a large number of boys stationed in the fruit room, and the kind of work these boys do is cleaning fruit. (2) That during the period ‘after the accident’—that is, from his return to the factory early in January 1899 down to the presenting of the petition to the Court on 20th March 1899, petitioner was one of two boys stationed in the timekeeper's office at the factory gatehouse, and the kind of work these boys do is acting as messengers.”

Argued for the appellant—The appellant was entitled to compensation, because although he actually earned the same wages as before, there was no doubt his earning capacity was diminished, and it was clear that but for the accident he would now have been earning more. The amount of wages earned after the accident as compared with that before it was only one element in fixing compensation. The whole injuries inflicted and the suffering endured should be taken into account— Geary v. William, Dixon, Limited, May 12, 1899, 36 S.L.R. 640. If the English cases— Irons v. Davis & Timmins (1899), 2 Q.B. 330, and Chandler v. Smith (1899), 2 Q.B. 506, were inconsistent with this, the Scotch decision in Geary should rule, There was no real hardship to the employer. He could never be liable for more than half the pursuer's wages, 2s. 6d. a-week, and could commute his liability, or have the award reviewed under clause 12 of Schedule I. (quoted supra) — Bennett v. Wordie & Co., May 16, 1899, 36 S.L.R. 643. In any event, the case must be kept open, as was done in the English cases cited above.

Argued for the respondent—Compensation under the Act was a new creation, differing from reparation at common law, and the only considerations on which it could be given were those set forth in clause (2) of Schedule I. (quoted supra). Neither his personal sufferings nor any calculation as to what he might have become were relevant. The workman is only regarded as a wage-earner, and if he can earn the same wages as before the accident he has no claim under the Act — Irons v. Davis & Timmins, and Chandler v. Smith, both cited supra. For his personal sufferings and injury to his prospects the workman had a remedy at common law or under the Employers Liability Act, but the consideration of damage relevant in such actions was irrelevant in a claim under the Workmen's Compensation Act — Small v. M'Cormick & Ewing, June 6, 1899, 1 F. 883, per Lord President, p. 885.

At advising—