Logan v Shotts Iron Company
| Jurisdiction | Scotland |
| Judgment Date | 26 November 1918 |
| Date | 26 November 1918 |
| Docket Number | No. 16. |
| Court | Court of Session |
Lord Mackenzie, Lord Skerrington, Lord Cullen, Lord President.
Workmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), sec. 13, and First, Schedule (2) (a)Average weekly earningsCoal-cutting contractContractor working along with his gangSeparation of earnings as workman from profits as contractor.
A workman was employed by a colliery company as an electrical coal-cutting machine contractor. In this work he employed a gang of men and worked along with them himself; and while so working he met with an injury by accident. His income for the year preceding the accident was 281, of which 220 represented his personal earnings as a workman and the balance his profits on the contracts. His employers having admitted liability to pay him compensation,
Held (diss. Lord Skerrington) that, in assessing compensation, the arbitrator was, in the circumstances, entitled to separate the man's earnings as a workman from his profits as a contractor, and to base his award on the former sum only.
In an arbitration under the Workmen's Compensation Act, 1906, between Thomas Logan and the Shotts Iron Company, Limited, in the Sheriff Court of Lanarkshire at Airdrie, the Sheriff-substitute (Lee) awarded compensation, and at the request of the applicant stated a case for appeal.
The case set forth that the following facts were admitted or proved:
(1) That on 4th February 1916 the pursuer and appellant sustained an injury by accident arising out of, and in the course of, his employment as an electrical coal-cutting machine contractor with the defenders and respondents in their Rimmon Colliery, Shotts. (2) That as the result of said injury the pursuer and appellant was totally incapacitated for work. (3) That the defenders and respondents admitted liability for said injury, and paid compensation, in terms of the Workmen's Compensation Act, 1906, to the pursuer and appellant at the rate of twenty shillings weekly from 4th February 1916 to 15th August 1917. (4) That on 16th August 1917 the pursuer and appellant, having ceased to be totally incapacitated, obtained employment as a checkweighman, which he has continued to hold and still holds. (5) That as a checkweighman the pursuer's and appellant's average earnings were 3,13s. 8d. till 7th July 1918, when a rise in the shift wage gave him an increase equal to nine shillings weekly. (6) That it is admitted that at the present time the pursuer and appellant is able as a checkweighman, by working full time, to earn four pounds four shillings weekly. (7) That the pursuer's and appellant's total income as a contractor for the year preceding said accident was 281, 9s. 11/2d. (8) That said income included the pursuer's and appellant's ordinary remuneration as a miner and his profit on the speculation after paying the other workmen engaged by him to work on the contract. (9) That the pursuer's and appellant's average earnings as a workman for said year, apart from said profit, were 4, 4s. 6d. (10) That after stoppage of the weekly payments of compensation on 15th August 1917 the pursuer and appellant made no claim on the defenders and respondents until 16th or 23rd January 1918. (11) That said delay, and the apparent acquiescence of the pursuer and appellant, from 15th August 1917 to January 1918, have not prejudiced the defenders and respondents; and (12) that it is admitted that the pursuer and appellant was on 15th August 1917, has since continuously been, and still is, partially incapacitated as the result of said injury by accident.
In these circumstances I found the defenders and respondents liable to the pursuer and appellant in compensation, in terms of the Workmen's Compensation Act, 1906; assessed the said compensation at five shillings weekly from 16th August 1917 to 7th July 1918, and thereafter and until the same shall be varied or ended at sixpence weekly; and found the defenders and respondents liable to the pursuer and appellant in expenses, and modified the same at one-half of the taxed amount.
The question of law for the opinion of the Court was:On the facts stated was I entitled to proceed on the method of determining the pursuer's and appellant's weekly earnings which I adopted, and to limit the weekly payments of compensation to the amounts awarded?
The case was heard before the First Division on 13th and 14th November 1918.
Argued for the appellant;The appellant having been employed both as a contractor and as a workman, and the respondents having admitted liability to pay compensation for the injury sustained by him, his total receipts from that employment, without deduction of his profits as a contractor, fell to be regarded as his earnings in awarding compensation, the only allowable deduction being the amount of sums paid out by him as wages to his subordinates.1 His earnings included his whole remuneration for work done by him, whether by way of manual labour or otherwise,2 together with the profits which were the natural fruits of the position in which his employment placed him.3 The earnings of each individual workman in the appellant's squad were shown on the respondents' pay-sheets; and all that the appellant received in addition to his earnings for work actually done by him, as shown there, was remuneration for his trouble and responsibility in getting work done by others. There was no justification for splitting up his total earnings, for the purpose of an award of compensation, into his wages for manual work and the profits he made as a contractor.
Argued for the respondents;The respondents had admitted that the appellant was a workman within the meaning of the Act,4 but there was no finding to that effect, and their admission, which was really a gratuitous concession, could not be used against them for the purpose of establishing a proposition which they had never meant to concede. Their admission only extended to the appellant's
manual labour qua miner, and did not extend to his activities qua contractor. The two employments were totally distinct, the former alone falling within the Act; and, as it was in the employment of miner that he had been injured, it was according to his earnings as a miner only that he fell to be compensated. The cases cited by the appellant were distinguishable, because in all of them the additional remuneration was obtained by the injured man in the actual employment in which he was engaged as a workman.
At advising on 26th November 1918,
Lord...
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Thomson v James Nimmo & Company
...his profits as a contractor, and to award compensation on the basis of these earnings, but these earnings only. Logan v. Shotts Iron Co., 1919 S. C. 131,followed. In arbitration proceedings in the Sheriff Court at Falkirk under the Workmen's Compensation Act, 1925, between William M'Leod Th......