Scottish Court of Session Decisions

Claude Nelson, coal miner, Larkhall, appealed by way of stated case from an award of the Sheriff-Substitute ( Thomson) at Hamilton acting as arbiter in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) between him and The Summerlee Iron Company, Limited, coalmasters, Dykehead Colliery, Larkhall.

The Case stated—“This is an arbitration in which the respondents on 17th May 1909 presented an application for an award under the Workmen's Compensation Act 1906 to have it declared that the appellant's right to compensation under the said Act in respect of an accident on 31st July 1908 arising out of and in the course of his employment with the respondents at their Dykehead Colliery, Larkhall, ceased on or about 1st April 1909, or at such subsequent date as the Court might think fit, or alternatively, if the respondents were not entitled to have the appellant's said right to compensation terminated as aforesaid, then to grant such award of partial compensation as to the Court may seem just.

“The respondents explained and averred that the appellant was paid compensation in respect of said accident at the rate of 20s. per week from the date of said accident to the said 1st April 1909, on which date payment was stopped. Respondents averred that on said date the appellant had recovered from the effects of the said accident and was fit for his former employment, or alternatively if he was not fit for his former employment that he was fit for light work, and that any incapacity from which he suffered was not attributable to or connected with said accident. The respondents further explained that the question which had arisen between the parties was as to whether the appellant was entitled to compensation beyond the said 1st day of April 1909, and if so to what amount was he entitled.

The appellant lodged a note of defence in which he pleaded (1) that the application was incompetent, and (2) that the appellant not yet having recovered from the effects of his accident so as to resume his former employment the application should be refused.

I repelled the first of these pleas and allowed a proof.

The question of law is whether the respondent's application for arbitration was competent at a date when (1) no compensation was actually being paid to appellant, parties being in dispute as to the amount and duration of compensation, and (2) no memorandum of agreement had been recorded.”

Argued for the appellant—The application was not competently made, whether it was regarded as an original application made under section 1 (3) of the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), or as an application for review under section 16 of the First Schedule. The former only applied where there was no agreement; the latter, which was the correct mode of viewing this application— Powell v. Main Colliery Company, [1900] AC 366, per Lord Brampton—applied where there was an agreement which had been recorded, but had no application unless and until it had been recorded— Lochgelly Iron and Coal Company, Limited v. Sinclair, 1909 S.C. 922, Lord President Dunedin at 931, Lord Salvesen at p. 936, 46 S.L.R. 665; Dunlop v. Rankin & Blackmore, November 27, 1901, 4 F. 203, 39 S.L.R. 146; Donaldson Brothers v. Cowan, 1909 S.C. 1292, 46 S.L.R. 920. Further, the Act of Sederunt of 26th June 1907, section 9, only contemplated review where the memorandum had been recorded. Nor did section 16 of the First Schedule apply unless payments were being made— Nicholson v. Piper, [1907] AC 215, Lord Robertson at 220, 45 S.L.R. 620. The case of The Bowhill Coal Company (Fife), Limited v. Malcolm, 1909 S.C. 1426, 46 S.L.R. 354, was not to the contrary effect.

Page: 345↓

Argued for the respondents—(1) So long as there was a continuing liability to pay a weekly payment, that liability could be reviewed though actual payments had ceased— The Bowhill Coal Company v. Malcolm ( cit. sup). (2) Review of an unrecorded argument was competent— Archibald Finnie & Sons v. Fulton, 1909, S.C. 938 Lord President Dunedin at 942, 46 S.L.R. 665; Jamieson v. Fife Coal Company, Limited, June 20, 1903, 5 F. 958, opinions of Lord Adam and Lord M'Laren, 40 S.L.R. 704. Dunlop v. Rankine & Blackmore ( cit. sup.) was no authority for the proposition that an unrecorded agreement could not be reviewed. Section 16 of the First Schedule, and similarly section 9 of the Second Schedule, referred to “any” weekly payment. The Act of Sederunt could not qualify the rights given under the statute. There must be read into section 9 thereof the words “if any” after the words recorded memorandum. Apart from the present question the employers had no interest to record a memorandum, and the interest of the workman to record was solely for purposes of diligence. Reference was also made to Caledon Shipbuilding and Engineering Company, Limited v. Kennedy, June 26, 1906, 8 F. 960, 43 S.L.R. 687; Courlay Brothers & Company (Dundee) Limited v. Sweeney, June 26, 1906, 8 F. 965, 43 S.L.R. 690.

At advising—