Scottish Court of Session Decisions

Owen Mulligan, labourer, Glasgow, appellant, being dissatisfied with a decision of the Sheriff-Substitute ( Mackenzie) at Glasgow in an arbitration brought by the appellant against the Corporation of Glasgow, respondents, for an award of compensation under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) appealed by Stated Case.

The Case stated—“The following facts were established—1. That the applicant is a labourer residing at 277 Gallowgate, Glasgow, and that the respondents are the Corporation of the City of Glasgow. 2. That on 25th June 1915 the appellant was engaged in the respondents' employment as a labourer on the permanent way at Woodlands Road, Glasgow. 3. That on said date, while the appellant was engaged in his said employment, he sustained injuries by accident arising out of and in the course of his employment, viz., injuries to his left eye, which have resulted in blindness in said eye, in consequence of which he was incapacitated for work until 6th May 1916. 4. That the respondents admitted liability for said accident, and paid the appellant compensation under the Workmen's Compensation Act 1906, at the rate of 13s. 4d. per week up to and including the week ending 6th May 1916, since which date they have refused to continue payment of said compensation. 5. That appellant's average wages while in the respondents' employment prior to said accident were 27s. per week. 6. That the appellant is now fit for work and has been invited to resume the work he was formerly engaged in; that he has been so fit since 6th May 1916; that it is not proved that his earning capacity in the open market has been affected by the accident.

“ I found in law that the respondents were not liable in compensation to the appellant beyond 6th May 1916. I therefore dismissed the application and found the appellant liable to the respondents in expenses.”

The question of law was—“Was there evidence upon which the arbitrator could competently find that the respondents were not liable in compensation to the appellant beyond 6th May 1916?”

To his award the Sheriff-Substitute appended the following

Note.—“As early as 1st February 1916 the pursuer was reported by Dr Gilchrist as fit to resume his work. The defenders have paid compensation up to 6th May, and looking to the confirmatory certificates granted by Dr Riddell and Dr Gilchrist on 27th July 1916, I think that they are entitled to be relieved of compensation as from 6th

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May. The defenders have offered to take the pursuer back to his old work, and there is practically no proof beyond his own statement that he is not able for this. He has apparently made no efforts to get work elsewhere, and there is no proof that his earning capacity in the labour market has been diminished. There is, indeed, proof that one-eyed men are engaged by the defenders in this work. The argument as to danger to the remaining eye is not, I think, tenable on the medical evidence. There appears to be no prospect of the second eye being affected. With regard to the effects of any second accident occurring to the remaining eye, I think I am bound by the view taken in the case of Law v. Baird, 1914 S.C. 423, 51 S.L.R. 388, however much the effect of that judgment may have been modified by Burt v. East Fife Coal Company, 1914, 52 S.L.R. 51, and the English case of Jackson v. Hunslet Engine Co., 1916, 9 B. 269.”

Argued for the appellant—Compensation should not have been terminated. The appellant as the result of the accident was a one-eyed man. He was at present able to earn his former wage, and upon that fact the arbiter had proceeded in terminating compensation. But the true test was not how was the appellant affected as to his de facto earnings but as to his earning capacity. There was no finding in fact as to how the appellant's earning capacity was affected. The fact that he was earning the same wages as before the action was no criterion, for the labour market was in an abnormal state, and in a normal market the appellant's earning capacity might well be affected. That, however, could not be tested at the present time, but could only be tested when the market was normal. The same course should be followed as was adopted in Dempsey v. Caldwell & Company, Limited, 1914 S.C. 28, 51 S.L.R. 16, i.e., the case should be remitted to the arbiter to consider whether the termination of compensation should be permanent or temporary. Hargreave v. Haughhead Coal Company, 1912 S.C. (H.L.) 70, 49 S.L.R. 474, was distinguished, for it was decided on the fact that in a nominal market the workman's earning capacity was found to be unaffected. Law v. Baird, 1914 S.C. 423, 51 S.L.R. 388, was modified by Burt v. Fife Coal Company, 1914, 52 S.L.R. 51, and Jackson v. Hunslet Engine Company, 1916, 9 B.W.C.C. 269. It was immaterial that the appellant had not moved in the arbitration for a suspensory award, for there were no findings in fact to support the present decision. The Workmen's Compensation Act 1906 (6 Edw. VII, c. 58), 2nd Schedule, section 17 ( e), was referred to.

Argued for the respondents—The present case was completely covered by Hargreave's case ( cit.). That was the view of Lord Johnston in Dempsey's case at p. 35. Here the appellant had completely recovered from the accident, and accordingly the arbitrator had rightly terminated compensation— Law ( cit.), per Lord President Strathclyde at p. 426. If the present state of the labour market was to be made a ground for a suspensory award, every award ought to be suspensory, for earning capacity always depended on the fluctuations of the labour market. No motion for a suspensory award was made to the arbitrator; it was too late now to raise that question. [ Lord Mackenzie referred to Duris v. Wilsons and Clyde Coal Company, 1912 S.C. (H.L.) 74, 49 S.L.R. 708.]