Stewart v Perth General Station Committee
| Jurisdiction | Scotland |
| Judgment Date | 19 January 1923 |
| Date | 19 January 1923 |
| Docket Number | No. 37. |
| Court | Court of Session |
Lord President (Clyde), Lord Cullen, Lord Sands.
Workmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), sec. 1 (4), and Second Schedule, par. 17 (b)Common law actionMotion to fix compensationTimeousnessAppeal by stated caseCompetency of appeal where compensation fixed in common law action.
Where, in a Sheriff Court action against an employer to recover damages for injury by accident independently of the Workmen's Compensation Act, it is decided that the defender is not liable, and the Court then proceeds, in terms of sec. 1 (4) of the Act, to assess compensation under the Act, the proceedings are not proceedings in an arbitration under the Act, and, accordingly, appeal by way of stated case is incompetent.
A workman brought a common law action of damages in the Sheriff Court for personal injuries against his employers, in which the defenders were assoilzied with expenses. The interlocutor did not contain a finding that the defenders would have been liable to pay compensation under the Workmen's Compensation Act, 1906, but, before decree for the taxed amount of the defenders' expenses had been pronounced, the pursuer moved the Court, in terms of sec. 1 (4) of the Act, to assess compensation, and the Sheriff-substitute thereafter made an award of compensation in his favour. The employers having obtained a stated case on appeal,
Held that, as the Sheriff-substitute in awarding compensation was not acting as an arbitrator under the Act, the stated case was incompetent; and appeal dismissed.
Opinion reserved (per Lord Sands) as to whether all review was excluded.
Observations upon the question whether the motion to the Sheriff to assess compensation was not too late, as it had not been made until after the action of damages had been disposed of by final judgment.
On 12th July 1920 James Stewart, labourer, Perth, brought an action of damages at common law in the Sheriff Court of Perthshire, at Perth, against his employers, the Perth General Station Committee, in respect of injuries sustained by him in an accident on 30th June 1919. On 25th April 1921 the Sheriff-substitute (Boswell) assoilzied the defenders, with expenses. The Sheriff-substitute's interlocutor contained no finding that the defenders would have been liable to pay compensation under the Workmen's Compensation Act, 1906, nor did it contain any express reservation to assess compensation under that Act. On 7th June 1921 the pursuer moved the Court to assess compensation under the Act.* On 17th June 1921 decree was pronounced in favour of the defenders for the taxed amount of their expenses, and thereafter, on 1st July 1921, the Sheriff-substitute pronounced the following interlocutor;The Sheriff-substitute, having considered the cause, allows the same to proceed as a claim under the Workmen's Compensation Act, 1906: Appoints the pursuer to lodge a minute stating the sum or sums so claimed by him, within six days from this date.
Thereafter the pursuer lodged a minute. After sundry procedure, including a proof on the pursuer's minute, the Sheriff-substitute awarded compensation, and, at the request of the defenders, stated a case for appeal.
The case set forth the facts narrated above, and in addition stated that, as the result of the last-mentioned proof and the proof in the action of damages, the following facts, inter alia, were proved:(1) That the accident arose out of and in the course of the pursuer's employment with the defenders; (2) that the pursuer was still partially incapacitated; (3) that the pursuer returned to work with the defenders on 21st July 1919 at the same rate of wages as at the date of the accident and continued in their employment until 24th January 1920, when he was discharged; (4) that no notice of claim was given until 4th February 1920, but that the fact that the pursuer was in the employment of the defenders
at full wages until 24th January 1920 was a reasonable cause for not making a claim earlier.
The case further set forth:I found in law (1) that the action of damages was in time in the sense of section 1 (4), in respect that failure to make it within six months ought to be excused under the proviso of section 2 of the Act of 1906; (2) that the application to assess compensation was in time, because made before expenses in the said action of damages had been decerned for. I accordingly awarded compensation, and assessed it at 12s. per week from 30th June 1919, subject to deduction of,inter alia, one-half of the defenders' expenses in the action of damages.
The questions of law included the following:(1) Was it competent to proceed to assess compensation under the Workmen's Compensation Acts? (2) Was the application made in time?
The case was heard before the First Division (without Lord Skerrington) on 22nd and 23rd December 1922. In the course of the hearing the question of the competency of the stated case was raised by the Court.*
Argued for the appellants;(1) Appeal by way of stated case was competent. The Sheriff-substitute, in assessing compensation under the Act, was acting as an arbitrator within the meaning of paragraph 17 (b) of the Second Schedule. Section 1 (4) plainly contemplated that the proceedings for assessment of compensation should be attended with all the incidents of arbitration procedure under the Act, and in a number of cases in which motions for assessment of compensation in common law actions had been made the subsequent procedure had been regarded as involving the exercise by the Court of its statutory arbitral jurisdiction.1 (2) As regarded the merits of the case, the application to assess compensation was incompetent in respect that no claim had been made until more than six months after the accident. The reference in section 1 (4) to the time hereinafter limited for bringing proceedings was to the condition attached by section 2 (1) to claims for compensation that they must be made within six months. The discretionary power to extend the period conferred on the arbitrator by section 2 (1) (b) applied only to ordinary applications for compensation, and not to the exceptional procedure provided for by section 1 (4).2 In any case, no sufficient cause had been shown why the claim had not been made timeously.3 Further, the Sheriff-substitute's interlocutor assoilzieing the defenders did not contain a finding that they would have been liable to pay compensation
under the Act, and, indeed, no such finding had been made in any interlocutor which had been pronounced in the case. It was incompetent for the Sheriff-substitute to order the cause to proceed as a claim for compensation, since he had already decerned for the expenses to which the defenders had been found entitled, and there was, accordingly, no cause in dependence.1 It was necessary that the original action should still be in dependence in order that the findings required by section 1 (4) might be made in it. In any event, as the motion to assess compensation was not made until after final decree in the common law action, it came too late. It was well settled that a workman must elect between his common law remedies and his rights under the Act, and that he was not entitled to claim compensation after he had brought, and lost, an action at common law2; and the authorities showed that, where it was sought to take advantage of the procedure provided by section 1 (4), the necessary motion must be made before final...
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