Scottish Court of Session Decisions

On 10th December 1908 George Rosie, builder, 52 East Crosscauseway, Edinburgh, presented a bill of suspension seeking to suspend a charge at the instance of Alexander Mackay by virtue of an alleged extract registered memorandum of agreement and warrant thereon dated 1st December 1908, to make payment of £73, 16s.

On 20th November 1906 Mackay, a workman in the employment of Rosie, sustained injury by an accident arising out of and in the course of his employment, and compensation at the rate of 18s. a-week under the Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37) was paid to him till 4th May 1907, after which date the weekly payments were discontinued. Mackay then raised against Rosie in the Court of Session an action at common law concluding for damages in respect of the injury. On 21st November 1907 the First Division affirmed the judgment of the Lord Ordinary, dismissing the action on the ground that the pursuer had elected to take compensation under the Act (see Mackay v. Rosie, 1908 S.C. 174, 45 S.L.R. 178). Mackay, who in the action denied that he had agreed to take compensation, then presented a petition to the Appeal Committee of the House of Lords for leave to appeal in forma pauperis against the judgment of the Court of Session. Leave was refused on 29th July 1908. On 15th May 1908 Rosie had lodged a memorandum of agreement under the Workmen's Compensation Act 1897, with the Sheriff Clerk at Edinburgh, and on 25th May Mackay had intimated objections to the recording. These objections were withdrawn on 24th August 1908, and on 26th August 1908 Rosie intimated withdrawal of the memorandum and got delivery of it from the Sheriff Clerk on a borrowing receipt. On 2nd November 1908 the memorandum was returned to the Sheriff Clerk at his request. On 13th November the Sheriff-Substitute ( Guy) found, after a hearing, that the memorandum fell to be recorded as at the date when Mackay's objections were withdrawn, viz., 24th August 1908, and warrant was granted for its recording. Mackay then charged Rosie on the extract registered agreement to pay the sum of £73, 16s., being compensation at the rate of 18s. a-week from 4th May 1907 to 28th November 1908.

On 16th June 1909 the Lord Ordinary ( Mackenzie) suspended the charge in so far as regarded the period from 4th May 1907 to 24th August 1908, and repelled the reasons of suspension as regarded the period subsequent to 24th August 1908.

Opinion.—“The complainer seeks to have the charge suspended, first, on the ground that the Sheriff-Substitute had no jurisdiction to order the memorandum of agreement to be recorded.

The ground of this objection is that the complainer, who had lodged the memorandum of agreement on 15th May 1908, with a signed request addressed to the Sheriff-Clerk to record it, intimated withdrawal of the memorandum on 26th August. The respondent had on 25th May objected to the recording, but withdrew his objection, and intimated this to the Sheriff-Clerk on 24th August. The complainer's agents on 26th August got delivery of the memorandum from the Sheriff-Clerk on a borrowing receipt. On 27th August they intimated to the respondent's agent that they had withdrawn the memorandum. On 2nd November the complainer's agents returned the memorandum to the Sheriff-Clerk at his request. There was thereafter a hearing, and the Sheriff-Substitute on 13th November found that the memorandum fell to be recorded as at the date when the respondent's agent intimated withdrawal of his objections, viz., 24th August. The memorandum of agreement was recorded in the terms it bore when originally lodged by the complainer's agents.

I am unable to hold that the Sheriff-Substitute in these circumstances exceeded his jurisdiction. As he had jurisdiction I do not think objection can be taken in the present proceedings to his direction that the memorandum should be recorded as of an earlier date. Nor can objection be taken to the terms of the agreement as recorded. The Sheriff-Substitute must be held to have satisfied himself as to that.

It was contended that whereas the agreement provides for the payment of compensation at the rate of 18s. per week, it was an admitted fact that the statutory maximum to which the respondent is entitled is 13s. This is a matter, however, which can only be rectified by an application to vary the terms of the agreement.

It was further contended for the complainer that the charge should be suspended in so far as it relates to arrears before 24th August, and the case of Lochgelly Co. v. Sinclair, 46 S.L.R. 665, was founded on. The complainer's argument was that it was established in the present case that the respondent had acquiesced in the discontinuance of compensation, and that a proof was unnecessary.

The facts here, about which there is no doubt, are that from the date of the accident on 20th November 1906 down to 4th May 1907 the complainer paid the respondent compensation at the rate of 18s. a week, and then stopped. The respondent

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then brought an action of damages at common law against the complainer in the Court of Session. On 21st November 1007 the First Division affirmed the Lord Ordinary's judgment dismissing the action, on the ground that the respondent had elected to take compensation under the Workmen's Compensation Act. The respondent in that action denied that he had agreed to take compensation under that Act, He then endeavoured to get on to the poor's roll and appeal to the House of Lords. The application to the Appeal Committee was refused on 29th July 1908. It was only after this that the respondent withdrew his objections to the recording of the memorandum of agreement.

In these circumstances it is, in my opinion, impossible for the respondent to deny that he had acquiesced during that period in the discontinuance of compensation. As the Lord President points out in the Lochgelly case, the common law action was absolutely inconsistent with the idea of there being a subsisting agreement to pay compensation. If this be so, then the respondent cannot now be allowed a proof, as was asked, in order to show that during that period he was incapacitated from work.

In these circumstances it does not appear to me that there is any necessity for a proof. The complainers are entitled to have the charge suspended in so far as regards the period from 11th May 1907 to 24th August 1908. As regards the period subsequent to 24th August, the note will be refused.…”

The respondent reclaimed, and argued—In the previous litigation between the parties ( Mackay v. Rosie, 1908 S.C. 174, 45 S.L.R. 178) the Court had decided that the reclaimer was barred from suing at common law, because he had elected to take compensation. There was therefore a subsisting agreement during that period, and the reclaimer was entitled to compensation for the whole period covered by the charge. The raising of the common law action was no bar to the reclaimer's receiving the compensation due to him in virtue of the agreement. The case of Lochgelly Iron and Coal Company, Limited v. Sinclair, 1909 S.C. 922, 46 S.L.R. 665, was distinguishable. In that case there was unexplained delay, and it was averred that the workman had recovered. Here it was admitted that the reclaimer was incapacitated during the whole period for which compensation was claimed, and there was no such delay as would bar the claim— Finnie & Son v. Fulton, 1909 S.C. 922, 46 S.L.R. 665. With regard to the amount of compensation, review was not competent so long as there was no change of circumstances— Crossfield & Sons, Limited v. Tanian, [1900] 2 QB 629. The Sheriff had no option but to grant warrant for the recording— Macdonald v. Fairfield Shipbuilding and Engineering Company, Limited, October 20, 1905, 8 F. 8, 43 S.L.R. 1—and there was no appeal from his judgment— Binning v. Easton & Sons, January 18, 1906, 8 F. 407, 43 S.L.R. 312.

Argued for the complainer (respondent)—The respondent did not now dispute the liability as to the period subsequent to 24th August 1908 or as to the amount of the weekly payment. As to the period from 11th May 1907 to 24th August 1908 no compensation was due. Under the Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37) compensation could only be due where there was either a subsisting agreement or the award of an arbiter. Neither of these requisites was present here. There had been no arbiter's award, and the finding in the common law action was not that there was a subsisting agreement, but simply that the reclaimer had made an election. That was perfectly consistent with the agreement having been varied or ended. In point of fact the reclaimer had maintained throughout the common law action that there was no subsisting agreement during the period in question, and the fact of his pursuing the action was itself inconsistent with the subsistence of any agreement. It was therefore not open to the reclaimer now to go back on his previous position or to deny that he had acquiesced in the discontinuance of the weekly payments.