Anchor Donaldson Ltd v Crossland
| Jurisdiction | England & Wales |
| Judge | Lord Buckmaster,Viscount Dunedin,Lord Phillimore,. |
| Judgment Date | 30 November 1928 |
| Judgment citation (vLex) | [1928] UKHL J1130-4 |
| Docket Number | No. 3. |
| Court | House of Lords |
| Date | 30 November 1928 |
[1928] UKHL J1130-4
House of Lords
Lord Buckmaster.
Viscount Dunedin.
Lord Phillimore.
After hearing Counsel, as well on Monday the 25th, as on Tuesday the 26th, days of June last, upon the Petition and Appeal of Anchor Donaldson, Limited, 14, St. Vincent Place, Glasgow, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely an Interlocutor of the Lords of Session in Scotland, of the First Division, of the 10th of December, 1927, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Joseph Crossland, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor of the 10th day of December 1927, complained of in the said Appeal, be, and the same is hereby Affirmed, and that the said Petition and Appeal be, and the same is hereby dismissed this House: And it is further Ordered, That the Appellants do pay or cause to be paid to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within One Calendar Month from the date of the Certificate thereof, the Cause shall be, and the same is hereby remitted back to the Court of Session in Scotland, or to the Lord Ordinary officiating on the Bills during the Vacation, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
The difficulty in this case lies far more in determining a question of procedure than a question of principle. The Respondent was in the service of the Appellants, and while in their employment on the 21st July, 1926, he sustained injuries due to an accident arising out of and in the course of his employment. As a consequence of his injury the Appellants paid to the Respondent a weekly sum of £1 9s. 9d. a week, down to the 23rd April, 1927, on which date they terminated the weekly payment. On the 13th May, 1927, the Respondent applied under the Workmen's Compensation Act of 1925 for an award of compensation at the rate of £1 9s. 9d. per week, as from the 23rd April, 1927. This application was answered by the Appellants alleging that the Respondent's incapacity had ceased on the 27th April, 1927. At the time material for the present Appeal, the award in respect of that application had not been made, and the question of incapacity had not been determined, but on the 31st May, 1927, the arbiter made an interim award, awarding until the hearing that the Appellants should continue to pay the compensation reserving the Respondent's right, to recover any payments made under such award which might be found due to the Respondent in the final award, and gave the Appellants power to pay such sums into court. The Appellants appealed to the first division of the Court of Session against this award, and their Lordships affirmed the award upon the first point but declared that there was no power to order payment of the amount into court. From that Judgment the Appellants have brought the present Appeal. The justification for the award is sought under the terms of Section 12 of the Workmen's Compensation Act, 1925, which is in the following terms:
" Limitation of power of employer to end or diminish weekly payments. —An employer shall not be entitled otherwise than in pursuance of an agreement or arbitration to end or diminish a weekly payment except in the following cases" (which are then specified under three subheads).
I do not entertain much doubt as to the meaning of Section 12. Its purpose is, to my mind, plain. It is to secure that if weekly payments are, in fact, being made to a workman, they shall not be ended apart from agreement or arbitration except in the cases that are specified. None of the occurrences mentioned in the three sub-heads are alleged in the present case and it therefore follows that the obligation imposed by the first words of the section still remain. The case of the Ocean Coal Company against Davies (1927 Appeal Cases, page 271) and the case of Niddrie and Benhar Coal Company Limited and Dee (1927 Appeal Cases, page 299) do not, in my mind, affect this conclusion. In the first of these cases, a workman was, by agreement, receiving from his employers compensation in respect of miners' nystagmus until the 3rd September, 1925, when it was stopped upon the ground that the miner had completely recovered, and on 21st September, 1925, they filed a request for arbitration upon this ground. The miner admitted that he had recovered, but claimed that by Section 14 of the Act of 1923, reproduced in Section 12 of the Act of 1925, the weekly payments could not be terminated until an award had been made under the Act. The County Court Judge made his award, holding that the Respondent was entitled to compensation up to its date. His award was confirmed by the Court of Appeal, but over-ruled in this House, Lord Dunedin dissenting.
The basis of this Judgment was that there was no obligation to pay after incapacity had admittedly ceased but it does not affect the question of the liability to pay during the period when the question as to incapacity is in dispute. Lord Wrenbury, in his Judgment, stated, on page 294, that the rights under Section 14 were as follows:
That in its principal meaning "It creates in the employer an obligation to pay de facto whether he is de jure liable or not until the liability de jure is determined."
And Lord Carson said, on page 297:
"Pending an agreement or an arbitration, an employer is not entitled to end weekly payments under the Act of 1906 and probably if the employer, contrary to the Section, did end such payments, the workman would be entitled to put the law in motion to recover such payments and the Courts would have power to insist upon such payments, either to the workman, or, if the interests of justice so required, into Court, pending the determination of the arbitration."
These two statements are precisely applicable to the case that has happened here. No award has been made and pending the making of the award, or an agreement, the employer is not at liberty to suspend the weekly payments. The later case does not affect the principle of this decision. In that case an award had been made under the Statute and recorded in the Register of the Sheriff's Court. Payments were made under it until a date when they were stopped. A dispute arose as to the cessation of the workman's incapacity and the employers applied to refer the dispute to a medical referee. This application was refused on the ground that the matter ought to be settled by arbitration, for which the Appellants applied. The workman charged the employers for arrears of compensation; the employers raised an Action of Suspension and consigned the sum into Court. It was held that the Suspension ought to be allowed. The real foundation of this Judgment was that an application had, in fact, been made to refer the dispute to a medical referee, and consequent upon that, payment into Court might be directed by virtue of what is now sec. 12 s.s. 3 (ii) and that the right of payment into Court was not defeated, because other proceedings were taken; in the words of Lord Wrenbury (page 310):
The Section "applies when application has been made. whether an Order has been made upon it or not. The application may or may not result in an Order. The enactment applies none the less, just as if there were inserted after the words 'to a medical referee' the words 'which may or may not result in a medical reference.'"
This decision leaves the present case unaffected. No one of the statutory conditions has been met, no award has been made, and no application for reference to a medical referee. The right of the workman, therefore, for the continuance of the payments remains. The next question is: how is this right to be enforced?
Lord Carson, in the Ocean case, appeared to think that independent Common Law proceedings might be used. It might, of course, also be possible to record an agreement under which the payments were made and to charge upon it but payments of this kind are not necessarily made under any defined agreement and in such a case it would have to be established by inference from a course of conduct, and prolonged investigation might ensue during which time the payments, of which it was the object of the act to secure continuance, would have ceased. I cannot think that this was the real meaning of the Act. The question of the workman's right to compensation was expressly taken outside the Courts and placed in the hands of an arbitrator. He it is in whom is vested the right of awarding the compensation and this, in my opinion, gives him seisin of the dispute relating to the payment of compensation and this right to the continuance of the weekly payments is associated with that claim for compensation and, by the Act, is to be continued until the legal rights of the parties are determined, or the payments ended by the statutory means. Where arbitration proceedings are pending, the enforcement of the workman's right under sec. 12 must necessarily be ad interim the award and if independent proceedings were taken to enforce the right such proceedings here would in the ordinary cases be before the County Court Judge and I apprehend in Scotland before...
To continue reading
Request your trial
-
White v William Baird & Company
...47, [1927] A. C. 297, see esp. per Lord Shaw at p. 53, and per Lord Wrenbury at pp. 55–56; Crossland v. Anchor Donaldson, LimitedELR, 1929 S. C. (H. L.) 13, [1929] A. C. 297, see esp.per Lord Buckmaster at p. 18. When the employer has initiated procedure under subsection (c)the workman may ......
-
McGee v McBrayne
...(Leeds), [1927] 1 K. B.435, Lord Hanworth, M.R., at p.439, Russell, J., at p. 447. 4 Crossland v. Anchor DonaldsonELR, Limited, 1929 S. C. (H. L.) 13, [1929] A. C. 297. 5 15 and 16 Geo. V. cap. 84. 6 [1927] 1 K. B. 435, Lord Hanworth, M.R., at pp. 439,440, Scrutton, L.J., at p. 443. 7 Gille......
-
O'Neill v John Watson Ltd
...V, cap. 84. 3 Freeland v. Summerlee Iron Co.ELR, 1913 S. C. (H. L.) 8, [1913] A. C. 221; Crossland v. Anchor Donaldson, LimitedELR, 1929 S. C. (H. L.) 13, [1929] A. C. 4 Smith v. D. Davis & SonsELR, [1915] A. C. 528;Pudney v. William France, Fenwick & Co.ELR, [1925] 1 K. B. 346; Lindsay v. ......
-
Richmond Park Laundry Company v Lawson
...C. 271. 12 Niddrie and Benhar Coal Co. v. DeeELR, 1927 S. C. (H. L.) 47, [1927] A. C. 299. 13 Crossland v. Anchor-Donaldson, Limited, 1929 S. C. (H. L.) 13. 14 Wilsons and Clyde Coal Co. v. Cairnduff, 1911 S. C. 647. 15 Wishart v. Gibson & Co.ELR, 1914 S. C. (H. L.) 53, [1915] A. C. 18. 16 ......