Scott v Mitchell
| Jurisdiction | Scotland |
| Judgment Date | 22 November 1929 |
| Docket Number | No. 10. |
| Date | 22 November 1929 |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION.
Workmen's CompensationAct 1925 (15 and 16 Geo. V. cap. 84), sec. 49Act of Sederunt, 16th March 1926, sec. 17 (g)ProcessAppeal by stated caseTransmission of processConsideration of notes of evidenceNotes to be used to challenge arbitrator's findings in fact.
An award of compensation having been made in favour of the widow of a deceased workman, the employer obtained a stated case. There after the employer presented a note craving an order for transmission of the process, in order that the notes of evidence might be available to satisfy the Court that there was no evidence before the arbitrator upon which he could reasonably arrive at certain of his findings in fact.
Held that the Court could not, by a review of the evidence, interfere with the arbitrator's findings in fact, and motionrefused.
Dictum of Lord President Strathclyde in M'Kenna v. Niddrie and Benhar Coal Co., 1916 S.C.1, disapproved.
Observed that the correct procedure for raising the question whether particular findings in fact of the arbitrator were justified was to obtain from him a statement of the facts on which he had reached these findings, and to put to the Court a question whether the inferences drawn by the arbitrator were justified.
In an arbitration under the Workmen's Compensation Act, 1925, in the Sheriff Court of Argyllshire at Dunoon, Mrs Agnes Howie M'Alpine Scott, window of Richard Scott, claimed compensation on her own behalf and as tutrix and administrator-in-law of her pupil child, Elizabeth M'Alpine Scott, from Mrs Helen s. Mitchell, Whistle-field Hotel, Loch Eck, Argyllshire, in respect of the death of Richard Scott. The sheriff-substitute (Ballingall) awarded compensation, and, at the request of the employer, stated a case for appeal.
The case set forth that the following were admitted or proved;"(1) That the respondent is the widow of the deceased Richard Scott, handy-man, and as such claims on her own behalf, and that she also claims as tutrix and administratrix-in-law for her pupil child, Elizabeth M'Alpine Scott, who was born on 5th July 1925, and is a child of the marriage between the respondent and the said deceased Richard Scott. (2) That at the time of his death the said deceased Richard Scott was employed by the appellant as a handy-man in the hotel at Whistlefield, Loch Eck, Argyllshire, of which appellant is the proprietrix, and that he had been in appellant's employment since March 1926. (3) That the duties of the deceased were to milk the cows, clean the stable, saw wood, &c., and to do the general work of a handy-man; that in addition to these duties he occasionally served in the bar at said hotel, and acted as barman particularly during the busy months in summer; and that he also acted as hotel porter and attended to the visitor's luggage upon their arrival and departure. (4) That the deceased lived on the hotel premises, and was subject to the control and legitimate calls of the appellant at all times. (5) That he had no fixed working hours. (6) That his earnings, including cash wages, value of board and lodging, tips, and 'overtime' paid to him for doing outside contracting or carting work on behalf of the appellant, amounting to not less than 2 per week; that the 'overtime' referred to arose as follows:The appellant had a contract with the contract with the country council to do the carting in connexion with road work, and she was paid for this work at a fixed rate per hour; she employed the deceased to do the carting, and when the deceased worked late in the evening on the roads, the appellant gave to the deceased the sum she received from the county council in respect of that late work. (7) That on the evening of 11th June 1928 the said deceased Richard Scott set out from Whistlefield in a motor lorry belonging to himself, proceeded to Kilmun, and purchased a ton of coal for the appellant. (8) That on the return journey, at about 11 p.m., when he was attempting to drive the motor lorry, loaded with coal, up the road leading to the hotel, the engine stopped. (9) That he got down from his seat and cranked up the engine. (10) That the brakes of the lorry were defective. (11) That the lorry ran forward; and (12) That as a consequence thereof the said deceased received injuries which caused his death. (13) That it was part of the deceased's duty, as a general handy-man, to bring coal to the hotel when required to do so, and that he had done it repeatedly with a horse and cart belonging to the appellant, but he had not previously brought coals for appellant by motor; that appellant had for some time an arrangement with her coal merchant in Kilmun that he would deliver her coals by his motor at a certain extra...
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