Colquhoun v Woolfe
| Jurisdiction | Scotland |
| Judgment Date | 12 July 1912 |
| Docket Number | No. 165. |
| Date | 12 July 1912 |
| Court | Court of Session |
Lord Kinnear, Lord Mackenzie, Lord Dundas.
Workmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), sec. 7 (2)WorkmanFisherman partly remunerated by share in earnings.
The Workmen's Compensation Act, 1906. enacts, sec. 7, subsec. 2:This Act shall not apply to such members of the crew of a fishing vessel as are remunerated by shares in the profits or the gross earnings of the working of such vessel.
A fisherman was employed as a member of the crew of a steam trawler upon a contract of service with the master, representing the owner, under which he received wages at the rate of 30s. a week, and a commission of 2d. per 1 on the gross value of the fish landed under deduction of the cost of carriage. During the only week of his employment his commission amounted to 7s.
Held (diss. Lord Dundas) that he was not remunerated by a share in the profits or the gross earnings of the working of the vessel, and accordingly was not excluded by the subsection from claiming compensation under the Act.
Workmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), Second Sched. (17) (b)AppealStage at which appeal competentAppeal against allowance of proof.
Observations (per Lord Kinnear) on the circumstances in which the Court will consider an appeal under the Workmen's Compensation Act before proof has been taken.
In an arbitration under the Workmen's Compensation Act, 1906, in the Sheriff Court of the Lothians at Edinburgh, Joseph Walter Woolfe claimed compensation from John Colquhoun, the registered owner of the steam trawler Gloxinia, in respect of personal injury sustained by him in the course of his employment as a trawl fisherman. The Sheriff-substitute (Orr) allowed a proof, and at the request of Colquhoun stated a case for appeal.
The case set forth:
The facts admitted, and the averments of parties which raise the question of law hereinafter referred to, are as follows:The appellant is a fish merchant, carrying on business in Glasgow, and is the registered owner of the steam trawler Gloxinia. The respondent is a trawl fisherman, and on 15th January 1912, while employed as a member of the crew in the capacity of a fisherman on board said trawler, sustained injury by accident arising out of and in the course of his employment. The respondent made, inter alia, the following averment:The pursuer (respondent) is a trawl fisherman, and resides at No. 9 Henderson Street, Leith. He is a workman in the sense of the Workmen's Compensation Act, 1906. The defender (appellant) is a fish merchant, carrying on business in Glasgow. He is the registered owner of the steam trawler Gloxinia, and was, in the sense of said Act, the employer of the pursuer at the work at which he was engaged when he sustained the aftermentioned injuries. To this averment the appellant made the following answer:Denied that the pursuer is a workman and that the defender was his employer within the meaning of the Workmen's Compensation Act, 1906. Quoad ultra admitted. The respondent further averred:The pursuer had been for a week prior to 15th January 1912 in the employment of the defender on board the said steam trawler under a contract of service entered into between the master of the said trawler on behalf of the defender and the pursuer, under which contract the pursuer was engaged to act as second fisherman on board said trawler, and was to be remunerated for his services as follows, viz., by payment of the sum of thirty shillings a week in cash,' and by payment of a commission or percentage or poundage known as fish money of two-pence per pound sterling on the gross value of the fish landed each week from the said trawler under deduction of the cost of carriage of the fish. During the week the pursuer was employed by the defender the gross value of the fish landed under the deduction foresaid amounted to at least 42, and the pursuer's poundage thereon amounted to at least 7s. The appellant's answer to this averment was as follows:Admitted that the pursuer's weekly wage amounted to 30s., and that he received in addition a share of 2d. in the 1 on the amount of the gross earnings of the said steam trawler Gloxinia after deduction of the cost of carriage of the catch of fish. For the purpose of this case, the parties admitted that at the date of the accident the respondent's weekly earnings consisted of 30s. of wages, and 7s., being 2d. per 1 on the gross value of the fish landed from the Gloxinia under deduction of the cost of carriage of the fish. The appellant stated the following pleas in law among others:(1) The pursuer's averments being irrelevant, the action should be dismissed, with expenses; (2) The pursuer not being a workman within the meaning of the Workmen's Compensation Act, 1906, the present action should be dismissed, with expenses; and (3) Separatim, the pursuer, being a member of the crew of a fishing vessel remunerated by shares in the profits or the gross earnings of such vessel within section 7 (2) of the Act, is not entitled to compensation, and the present action should be dismissed, with expenses. At the request of parties I heard counsel on the said three pleas, and I thereafter, on 14th May 1912, issued the following interlocutor:Edinburgh, 14th May 1912.The Sheriff-substitute having heard counsel for the parties and considered the cause, repels the first, second, and third pleas in law for the defender: Allows a proof, and appoints the cause to be heard, tried, and determined at a diet to be afterwards fixed.
The question of law for the opinion of the Court was:Whether on the facts as stated the respondent was remunerated by a share or shares in the profits or the gross earnings of the working of said fishing vessel, and is thereby excluded by section 7 (2) of the Workmen's Compensation Act, 1906, from claiming compensation under said Act.
The case was heard before the First Division (consisting of Lord Kinnear, Lord Dundas, and Lord Mackenzie) on 5th July 1912.
Argued for the appellant;The respondent was remunerated by a share in the profits or gross earnings of the trawler. That was an express term of the contract, and was not affected by the fact that he was also entitled to 30s. a week of wages. The case was ruled by Admiral Fishing Company v. RobinsonELR,1 in which the contract between the parties was substantially the same as the contract here, the only difference being that here the fisherman got a weekly wage of 30s., whereas in that case there was a guarantee that the fisherman's share of profits should never be less than 30s. a week. Section 7, subsection (2), was intended to exclude from the benefits of the Act
persons for whose work the amount of remuneration was a matter of speculation.
Argued for the respondent;The object of the Act of 1906 as regarded seamen was to extend to such of them as were servants the benefits enjoyed by servants employed on land. The respondent here was a servant employed under a contract of service and remunerated, as servants are, by wages. The fact that he received a small share in the profit, a common form of incentive to effort, did not alter the fact that for all practical purposes he was paid by wages, and did not turn him into a person remunerated by shares in profits. It was clear that subsection (2) of section 7 used the word remunerated in the sense of substantially or mainly remunerated, and was meant to exclude partners and joint adventurers, and to relieve from liability those with whom an injured workman took a common risk as to profit.1 It...
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