McCracken v Addie & Sons' Collieries
| Jurisdiction | England & Wales |
| Judgment Date | 08 December 1936 |
| Docket Number | No. 1. |
| Date | 08 December 1936 |
| Court | House of Lords |
HL
Lord Atkin. Lord Thankerton. Lord Russell of Killowen. Lord Alness. Ld. Maugham.
Workmen's CompensationAct 1925 (15 and 16 Geo. V, cap. 84), sec. 9 (4), as amended by Act 1931 (21 and 22 Geo. V, cap. 18), sec. 1CompensationAmountTotal or partial incapacityWorkman fit for, but unable to obtain, light workProbability that if uninjured could have obtained pre-accident employment.
The Workmen's Compensation Act, 1925, sec. 9 (4), as amended by the Workmen's Compensation Act, 1931, sec. 1, enacts "If a workman who has so far recovered from the injury as to be fit for employment of a certain kind has failed to obtain employment and it appears to the [Sheriff] either(i) that, having regard to all the circumstances, it is probable that the workman would, but for the continuing effects of the injury, be able to obtain work in the same grade in the same class of employment as before the accident; or (ii) that his failure to obtain employment is a consequence, wholly or mainly, of the injury, the [Sheriff] shall order that the workman's incapacity shall be treated as total incapacity resulting from the injury Provided that(1) no order shall be made under this subsection if it appears to the [Sheriff] that the workman has not taken all reasonable steps to obtain employment."
A miner, who had lost a leg as the result of an accident, claimed compensation from his employers as for total incapacity, founding on sec. 9 (4) (i) of the Act of 1925, as amended by sec. 1 of the Act of 1931. The arbitrator sustained his claim, finding that he was fit for light work; that he had taken all reasonable steps to obtain it, but had failed; and that, had it not been for the continuing effects of the accident, he would have been able to obtain work in the same grade in the same class of employment as before the accident.
Held (aff. judgment of the Second Division) that the workman's claim fell exactly within the scope of sec. 9 (4) (i), and that there was no foundation for the employers' contention that sec. 9 (4) (i) applied only to the case where the workman was fit in every respect for his former employment, but was prevented from obtaining such employment by some obvious defect, such as the fact that he had one eye only.
(Inthe Court of Session 6th December 1935.)
In an arbitration under the Workmen's Compensation Act, 1925, in the Sheriff Court of Lanarkshire at Airdrie, in which James M'Cracken claimed compensation from his employers, Robert Addie & Sons' Collieries, Limited, as for total incapacity under the Workmen's Compensation Act, 1925, section 9 (4), as amended by the Workmen's Compensation Act, 1931, section 1,1 the Sheriff-substitute (Kermack) sustained the claim, and at the request of the employers stated a case for appeal.
The case stated that the arbitrator found the following facts admitted or proved:"(1) That the claimant, who is a miner, was injured by accident arising out of and in the course of his employment with the respondents and appellants on 20th August 1930; and that his average pre-accident earnings were 3, Is. 4d. per week. (2) That the claimant is 35 years old. (3) That he was totally incapacitated by the accident; that he had to have his leg amputated 9 inches below the knee; and that he was paid compensation as for total incapacity at the rate of 30s. per week up to 31st December 1934, and thereafter, as for partial incapacity, at the rate of 1 per week. (4) That the claimant was examined by the medical referee on 11th March 1932, who reported that he was not fit for any form of remunerative work; that he was again examined by the medical referee on 6th November 1934, who reported: The stump is soundly healed, but there is a point of tenderness over the end of the tibia. Mr Burton's (the medical practitioner who drew up a certificate on behalf of the claimant) report mentions a small irregular outgrowth of bone at the end of the tibia seen in X-ray films. As this stump is not weight bearing, it is doubtful whether further operation would provide a better stump. There is evidence of friction in the popliteal spacethe skin is definitely frayedcaused by movement of the stump within the bucket of the artificial limb. It should not be beyond the skill of the makers of the artificial limb to remedy this and make it much more comfortable. The general lining of the bucket also requires repairing. He is not fit for the work of a clipper. He has partially recovered and would be fit for light work above ground if his artificial limb were made comfortable; that the artificial limb was made comfortable as required; and that otherwise there was no evidence that his physical condition had altered since then one way or the other. (5) That the claimant was ready to undertake any form of light work. (6) That it was common ground that claimant had taken all reasonable steps to obtain employment. (7) That the claimant was fit for most forms of light work in a colliery or labouring work elsewhere, or as a salesman as which he has had experience. (8) That William Armstrong, director of Provanhall Colliery, which is in a small way of business, who knew from previous experience that the claimant was a good worker, would have employed him for a vacancy which he had as a miner underground, but for his injury. (9) That Hugh Murray, the respondents' and appellants' manager of their large
colliery employing seven hundred men, who knew about the claimant, would have given him an underground job if he hadn't been injured. (10) That the claimant has not got employment since his accident."
The case further stated:"I found in fact and in law (1) that the claimant was not...
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...proved that the failure to obtain employment was a consequence wholly or mainly of the injury. M'Cracken v. Addie & Sons' Collieries, 1937 S. C. (H. L.) 1, In an arbitration under the Workmen's Compensation Act, 1925, in the Sheriff Court of Lanarkshire at Airdrie, in which Adam Wishney, ma......
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