United Kingdom House of Lords Decisions

Thomas Macdonald or Duris, coal miner, Castle Street, Hamilton, appellant, presented a Stated Case under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) against a decision of the Sheriff-Substitute ( Hay Shennan) at Hamilton refusing an application by Duris for review of weekly payments under a memorandum of agreement between him and the Wilsons and Clyde Coal Company, Limited, his employers, respondents.

The Case stated—“This is an arbitration under the Workmen's Compensation Act 1906, raised on the 9th day of February 1911, in which I was asked by the appellant to review the weekly payments of 16s. lid. of partial compensation agreed to be paid by the respondents to the appellant under memorandum of agreement, recorded in the Hamilton Sheriff Court on 11th January 1911, in respect of injuries by accident sustained by him while employed as a miner at No. 1 Pit, Clyde Colliery, Hamilton, belonging to the respondents, on 16th February 1909, and to increase said weekly payments to the sum of 20s. in terms of section 16 of the First Schedule to the said Workmen's Compensation Act 1906. The appellant averred as the ground of his

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application for review that ‘… owing to his condition he is unable to obtain work in the district, and the said Wilsons and Clyde Coal Company, Limited, are unwilling or unable to supply him with same.’ The relevancy of the appellant's averment above quoted for an increase of his compensation was disputed, and a debate was heard before me, when the following facts were agreed on between the parties, viz.—(1) The appellant obtained light work with respondents in May 1909 at the picking tables; (2) while at said light work in September 1910 the parties remitted the question of appellant's fitness for work to a medical referee under Schedule I, section 15, of the Workmen's Compensation Act 1906, who reported that the appellant was fit for light work such as he was at that date engaged in; (3) that the appellant was dismissed from his employment with respondents on 6th December 1910; (4) that appellant's physical condition had not changed in any way since the date of the said medical referee's report. In these circumstances, founding on the case of Boag v. Lochwood Coal Company, Limited, 1910 S.C. 51, I found that the appellant had set forth no relevant grounds for reviewing the weekly payment.”

The question of law was—“Was I right in holding that the appellant's averments disclosed no relevant grounds for review of his compensation?”

On 28th June 1911 the First Division of the Court of Session, without calling on counsel for respondents, pronounced an interlocutor answering the question in the affirmative and refused the appeal.

Duris, the appellant, appealed to the House of Lords, and in a supplementary statement set forth—“This appeal raises a question upon which the Judges of the First Division of the Court of Session did not see their way to pronounce an independent decision. The appellant admitted he could not distinguish his case from Boag v. Lochwood Coal Company, Limited, and their Lordships in respect of the decision pronounced by the Second Division of the Court in that case refused the appeal simpliciter. The appellant submits that, so far as it establishes a general rule and so involves the determination of the present case, the case of Boag was wrongly decided. … The result of the decision of the Court in Scotland has been that no inquiry whatsoever has been held as to the effect of the appellant's physical incapacity on his wage-earning power, and that their Lordships have proceeded upon presumptions from the medical report without ascertaining or taking steps to ascertain whether or not in consequence of his condition the appellant is in fact unable to obtain work. The appellant is prepared to prove that he has made repeated applications in the district for work of a class which, in his impaired condition of health, he might be able to undertake. All these applications have been unsuccessful, and the appellant is prepared to show that his want of success has not been due to the state of the labour market, but to his incapacity and also to the very limited type of work which is now within his powers. He has been refused employment on the ground that, having regard to his obviously injured condition, employers would not employ such a workman. The appellant is not earning, nor is he able to earn, any wages whatsoever, and his injured condition precludes him from obtaining employment at any suitable employment or business at which he could earn wages. The result of the accident has been and continues to be total incapacity on the part of the appellant.” He further set forth as the question which it was desired to have settled “that the question of whether the condition of a workman prevents his obtaining work is always one upon which he is entitled to lead evidence, and upon proof of which he is entitled to compensation as for total incapacity, whether on an original application or on an application for review.” Reference was made to Sharman v. Holliday & Greenwood, Limited, L.R., [1904] 1 KB 235; Clark v. The Gas Light and Coke Company, 21 T. L. R. 184; Radcliffe v. Pacific Steam Navigation Company, [1910] 1 KB 685; and Proctor & Sons v. Robinson, [1911] 1 K.B. 1004.

The following reasons for reversal were, inter alia, set forth—“1. Because the question of the appellant's capacity to earn wages is a question of fact material to the assessment of compensation, upon which no evidence was before the arbitrator and upon which the arbitrator refused to hear evidence. 2. Because the appellant has made a relevant averment of continuing incapacity to earn wages. 4. Because the appellant is not earning or able to earn any sum in any suitable employment or business.”

The respondents stated—“The question presented for decision in this case is whether the term ‘incapacity for work’ in the Workmen's Compensation Act 1906, Schedule I (1), includes, in the case of a workman partially incapacitated, inability to obtain employment in the district where he lives? … It has been decided that no application for review of weekly payments can be entertained where there has been no change in circumstances since the weekly payments were awarded. The only change in circumstances which the appellant can point to is that he avers that he is unable now to find employment in the district. This, it is submitted, is an irrelevant ground of application for review.” They founded on the cases of Boag v. Lochwood Collieries, Limited ( cit. sup.), and Cardiff Corporation v. Hall, [1911] 1 KB 1009, per Fletcher Moulton, L.J., at p. 1020, and further referred to the cases of Crossfield & Sons v. Tanian, [1900] 2 QB 629; Dobby v. Wilson Pease, & Company, July 22, 1909, 2 Butt. W.C. 370; Carlin v. Alexander Stephen & Sons, Limited, June 9, 1911, 48 S.L.R. 862; and Black v. Merry & Cuninghame, Limited, 1909 S.C. 1150, 46 S.L.R. 812.

At delivering judgment—