Macdonald v Fairfield Shipbuilding and Engineering Company, Ltd

Judgment Date20 October 1905
Date20 October 1905
Docket NumberNo. 2.
CourtCourt of Session
Court of Session
2d Division

Lord Kyllachy, Lord Justice-Clerk, Lord Stormonth-Darling.

No. 2.
Fairfield Shipbuilding and Engineering Co., Limited.

Master and ServantWorkmen's Compensation Act, 1897 (60 and 61 Vict. cap. 37), Second Schedule (8)A. S., June 3, 1898, sec. 7 (a)Memorandum of AgreementSpecial Warrant to RegisterGenuinenessAgreement alleged to have been made under essential error.

In answer to a petition by a workman for a special warrant to register a memorandum of a verbal agreement to pay compensation at the rate of 16s. a week under the Workmen's Compensation Act, 1897, the employers, while not denying the agreement, objected that it had been made under essential error as to the rights of parties under the Act, and that the sum agreed to be paid was more than half the workman's average weekly earnings.

Held that the employer's objections were irrelevant as answers to a petition for warrant to register an agreement which was not denied.

Observed that in such a petition once the alleged agreement is proved to have been in fact concluded, the functions of the Sheriff-substitute are the same as those of the Sheriff-clerk when the genuineness of the memorandum is not disputed.

Opinion reserved as to what the proper course would be if a memorandum were presented proceeding upon a written agreement to pay a sum beyond the maximum amount which in any view of the facts could be awarded under the Act.

On 28th March 1904 Thomas Macdonald, blacksmith, sustained injuries in the course of his employment with the Fairfield Shipbuilding and Engineering Company, Limited, Govan. He was

injured on the day on which he entered the employment of the Fairfield Company. His wage was at the rate of 1, 12s. per week, but his actual earnings in the employers' service were only 6s. 4d. He claimed compensation under the Workmen's Compensation Act, 1897. It was ultimately not disputed that the employers in April 1904 agreed to pay Macdonald 16s. per week, and this sum was paid to him weekly for twelve weeks down to 4th July 1904. Macdonald signed receipts which bore that he acknowledged receipt of 16s. as the weekly payment to which he was entitled under the Workmen's Compensation Acts. After 4th July the employers refused to continue payment at the rate of 16s. per week, upon the ground that Macdonald was only entitled to 3s. 2d. per week, being half of his actual earnings.

Macdonald then sent a memorandum of an agreement to pay him compensation at the rate of 16s. per week under the Workmen's Compensation Act, 1897, to the Sheriff-clerk of Lanarkshire at Glasgow, to be recorded in pursuance of paragraph (8) of the Second Schedule of the Act.*

The employers objected to this memorandum being recorded, and the Sheriff-clerk accordingly intimated that it could not be recorded without a special warrant from the Sheriff.

Macdonald thereupon presented a petition in the Sheriff Court of Lanarkshire at Glasgow, craving warrant to the Sheriff-clerk to register the memorandum.

The Fairfield Shipbuilding and Engineering Company, Limited, lodged defences. They maintained that they were entitled to object to the registration of the memorandum in respect that the agreement to pay 16s. per week was made upon the erroneous supposition that the amount of compensation to which the pursuer was entitled was to he calculated upon the amount of the wages which he would have earned in a week, viz., 1, 12s., whereas upon a proper interpretation of the Workmen's Compensation Act, 1897, it ought to have been calculated upon the amount of his actual earnings, viz., 6s. 4d.

The defenders pleaded, inter alia;(1) Essential error.

Proof was allowed and led.

On 31st January 1905 the Sheriff-substitute (M. Davidson) pronounced this interlocutor:Having considered the...

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