McGillivray v Hope; Henry v Gladstone
| Jurisdiction | England & Wales |
| Judge | Lord Tomlin,Lord Warrington of Clyffe,Lord Thankerton,Lord Macmillan,. |
| Judgment Date | 21 June 1934 |
| Judgment citation (vLex) | [1934] UKHL J0621-1 |
| Docket Number | No. 5. |
| Court | House of Lords |
[1934] UKHL J0621-1
House of Lords
Lord Tomlin.
Lord Warrington of Clyffe.
Lord Thankerton.
Lord Russell of Kilowen.
Lord Macmillan.
After hearing Counsel, as well on Tuesday the 17th, as on Thursday the 19th, days of April last, upon the Petition and Appeal of Alexander M'Gillivray, Writer, 79, West Regent Street, Glasgow, Trustee on the Sequestrated Estates of William Gladstone, Builder, having a place of Business and carrying on Business at No. 35, Mains Street, Lockerbie, 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 Second Division, of the 31st of January 1933, 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 Petitioner 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 John Glasgow Hope and William Bell, 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 31st day of January 1933, 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 Appellant do pay, or cause to be paid, to the said Respondents, the Costs incurred by them 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 parties 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,
This is an appeal against a judgment of the Second Division of the Court of Session pronounced (after consulting with three additional Judges by virtue of Section 60 of the Court of Session Act, 1868) upon a stated case in an arbitration under the Workmen's Compensation Act, 1925.
The arbitration originated between a workman named Mason and his last employer, William Gladstone. In the arbitration the workman's two previous employers, the present Respondents, compeared for their respective interests.
Weekly payments of 30s. by way of compensation were on the 14th May, 1931, awarded in favour of the workman against Gladstone as from the 21st September, 1929, and the arbitration was continued to determine the liability of the three employers inter se for the compensation due and payable.
While the arbitration was pending, namely, on the 7th August, 1931, Gladstone became bankrupt and was sequestrated. Gladstone was uninsured in respect of his liability and no payment on account of the compensation had been made by him prior to the sequestration.
The present Appellant having been appointed trustee in the sequestration compeared in the arbitration in place of the bankrupt.
In the subsequent proceedings in the arbitration a stated case was prepared by the Sheriff-Substitute upon the requisition of the Appellant.
In order to understand the questions raised by the stated case and what followed thereon it is necessary to set out some further facts.
The workman who had been employed since a date earlier than 1st January, 1929, in one of the processes mentioned in the scheme to which I am about to refer, was certified to be suffering from silicosis and to have been totally disabled for work since 15th September, 1929. His claim for compensation therefore was put forward under the Act and the Various Industries (Silicosis) Scheme, 1928. That scheme came into force on the 1st February, 1929, and applied to all workmen employed in certain processes on or after the 1st January, 1929.
The scheme, which was made by the Secretary of State pursuant to the powers conferred on him by Section 47 of the Act, contains (inter alia) the following provisions:—
Part I.—Right to Compensation.
4.—(1) Where the certifying surgeon certifies in pursuance of this scheme that a workman is totally disabled for work from silicosis or from silicosis accompanied by tuberculosis;
* * *
and where the disease is due to employment in the processes whether under one or more employers, compensation shall be payable to the workman during such disablement or to his dependants, as the case may be, as if the disease as aforesaid were a personal injury by accident arising out of and in the course of that employment, as provided by the Act, but subject to the modifications hereinafter contained.
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9. The compensation shall be claimed and recoverable from the employer who last employed the workman in the processes; but any other employers who employed the workman in the processes during the five years preceding the date of total disablement shall (unless they had at the commencement of this scheme ceased to carry on the said processes), be liable to make to the employer from whom compensation is recoverable, such contributions as, in default of agreement, may be determined by arbitration under this scheme.
Provided that no employer shall be liable to make any such contribution in respect of any period of employment more than twelve months previous to the commencement of this scheme.
Part II.—Amount of Compensation.
10. The compensation payable under this scheme shall be fixed in accordance with the provisions contained in the Act under the head Amount of Compensation (sections 8 to 13 inclusive) for fixing the compensation in cases of death and total disablement and the said sections shall apply accordingly, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer from whom compensation is recoverable under this scheme.
* * *
Part V.—Miscellaneous Provisions.
* * *
18. The following provisions of the Act shall so far as applicable apply to any case under this scheme in like manner as in cases under the Act:—
* * *
( b) Section 7.—Provision as to cases of bankruptcy of employer.
The material provisions of Section 7 of the Act relating to an uninsured employer are contained in subsection (3) of that section and are as follows:—
(3) There shall be included amongst the debts which—
(i) under Section thirty-three of the Bankrupty Act, 1914, and Section one hundred and eighteen of the Bankruptcy (Scotland) Act, 1913, are in the distribution of the property or assets of a bankrupt, to be paid in priority to all other debts;
* * *
the amount due in respect of any compensation or liability for compensation accrued before …. the date of the receiving order;
* * *
Where the compensation is a weekly payment, the amount due in respect thereof shall, for the purposes of this provision, be taken to be the amount of the lump sum for which the weekly payment could, if redeemable, be redeemed if the employer made an application for that purpose under this Act.
* * *
The stated case found amongst other things that at the date of the sequestration a sum of £147 5s. was due in respect of arrears of weekly payments under the award and that a further sum of £679 16s. 4d. represented the amount of the lump sum for which the weekly payments could be redeemed if Gladstone made an application for that purpose under the Act, and that no sum had been paid or set apart for the workman from the sequestrated estates of Gladstone in respect of the compensation payable under the award.
The case further found that the only employers who employed the workman between the 1st February, 1929, when the scheme came into force, and the 14th September, 1929, the date of the workman's total disablement, were Gladstone and the Respondents, and that the periods of the workman's employment with these persons were:—
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(1) with Gladstone, 884 hours;
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(2) with the Respondent Hope, 2,226 hours;
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(3) with the Respondent Bell, 384 hours;
and that the amount of the contributions due fell to be based upon the respective lengths of the periods of the several employments.
In these circumstances the Appellant claimed to be paid as contributions to the sum of £827 1s. 4d. (the aggregate of the two sums of £147 5s. and £679 16s. 4d.) the sum of £526 18s. 4d. from the Respondent Hope and the sum of £90 17s. 11d. from the Respondent Bell as their proportions of the £827 1s. 4d. based upon the respective periods of the workman's employment with them.
The Sheriff Substitute held that it was not competent for him to make an order for payment and framed certain questions of law for the opinion of the Court.
These questions were not regarded as satisfactory by the Court and the matter was sent back to the Sheriff Substitute to...
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