Thomson v James Nimmo & Company
| Jurisdiction | Scotland |
| Judgment Date | 30 January 1940 |
| Date | 30 January 1940 |
| Docket Number | No. 15. |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Sheriff of Stirling, Dumbarton and Clackmannan.
Workmen's Compensation Act, 1925 (15 and 16 Geo. V, cap. 84), sec. 3—"Workman"—Contract by brusher to drive mine—Contractor working along with his gang.
Workmen's Compensation—Act 1925 (15 and 16 Geo. V, cap. 84), sec. 10 (i)—Average weekly earnings—Computation of rate—Contract to drive mine—Contractor working along with his gang as a brusher—Supervening industrial disease—Liability for compensation conceded quoad his manual labour—Separation of estimated earnings as brusher from profits as contractor.
By a contract in writing a colliery brusher agreed with a colliery company to drive a mine between two sections of their pit at a fixed rate per fathom, the manager of the colliery having only a limited control over the contractor's work to the extent of seeing that it was properly done and that his method did not interfere with the security of other persons in the pit. The contractor supervised the men he employed, and he also helped them by performing the manual work of a brusher. In the course of the contract he became incapacitated by the disease of silicosis, and claimed compensation.
In arbitration proceedings at his instance under the Workmen's Compensation Act, 1925, the company conceded that, quoad his own manual labour, he should be taken to be a workman within the meaning of the Workmen's Compensation Acts and the Industrial Diseases (Silicosis) Scheme, 1931, and that, to that extent, the contract should be treated as one of service. In view of this concession, the arbitrator, treating the contract as a composite contract of service and for services, found the workman entitled to compensation calculated on the basis of the average weekly earnings he would have earned had he been paid for his own labour. In an appeal the claimant contended that the contract as a whole was a contract of service, and that his average weekly earnings fell to be computed upon the basis of the average weekly profits he made on the contract.
Held (1) that, on a construction of the contract as a whole, it was a contract for services and not of service, and that, but for the concession of the employers, the claimant would have had no right to compensation; but (2) that, as, owing to the concession, it was permissible to differentiate between the components of the claimant's income, the arbitrator was entitled to separate what he would have earned if he had been paid as a brusher from his profits as a contractor, and to award compensation on the basis of these earnings, but these earnings only.
Logan v. Shotts Iron Co., 1919 S. C. 131,followed.
In arbitration proceedings in the Sheriff Court at Falkirk under the Workmen's Compensation Act, 1925, between William M'Leod Thomson and James Nimmo & Company, Limited, Redding Colliery, Polmont, the Sheriff-substitute (Hendry), as arbitrator, awarded compensation as for partial incapacity, and, at the request of the workman, stated a case for appeal to the Court of Session.
The stated case set forth that the arbitrator found the following facts admitted or proved:—"(1) The claimant is a colliery brusher. (2) The respondents are coal owners and have a place of business at Redding Colliery, Polmont. (3) On 16th May 1934 the claimant entered into a written contract with the respondents. (4) In terms of this contract the claimant agreed to drive a mine between the mill coal and the soft coal sections in the said mine for the sum of £4, 10s. per fathom throughout; in addition the claimant undertook to clean up all debris lying at the roadsides, and to restore to the width of 6 feet, and to make the road 6 feet high inside and under timber. He also undertook that all debris would be filled and removed. (5) The contract was subject, inter alia, to the following conditions:—(a) The work entrusted to the claimant was to be done to the entire satisfaction of the manager. (b) The manager had power to stop the contract before the expiration thereof, if he was dissatisfied either with the conduct of the claimant or with the quality of the work performed. (c) The claimant agreed to dismiss at any time any workman whom the manager disapproved of being employed about the mine; and (d) The contract was to be terminable on 14 days' notice either way. (6) The claimant engaged men to work under this contract. (7) In carrying out the contract the claimant used his own graith. (8) The claimant supervised the work of the men engaged in carrying out the contract. (9) He also helped the men by performing manual work towards that same end. (10) The claimant could leave the pit at any time without the authority of the officials of the pit. (11) The manager of the said colliery had control over the claimant's work only to the extent of seeing that it was properly done. (12) While the said contract was being carried out as stated, the claimant became incapacitated by the disease of silicosis in terms of the Various Industries (Silicosis) Scheme, 1931, and statutes. (13) He ceased work on 26th October 1937 by reason of illness. (14) He applied in terms of the said Scheme for medical examination. (15) The medical board appointed under the said Scheme examined the claimant and issued a certificate dated 1st April 1938 certifying that the claimant was suffering from silicosis to such a degree as to make it dangerous for him to continue to work in the said industry or process, and suspended him from employment from 4th January 1938. (16) The said board certified further that the silicosis was in an early stage and that there was a slight degree of impairment of the claimant's general physical capacity for employment, and that the claimant was fit for moderately heavy work. (17) The certificate by the medical board was served upon the respondents along with a notice of claim on 2nd April 1938. (18) The claimant drew money under the contract from the respondents. (19) From this money he paid the men whom he had engaged. (20) It was agreed that the claimant is partially incapacitated as a result of the disease of silicosis. (21) It was further agreed that the claimant has an earning capacity of £2 a week. (22) It was also agreed that the claimant's average weekly income under the said contract from 4th January 1937 to 26th October 1937 was £4, 5s. 9d. (23) This income included the claimant's ordinary remuneration as a brusher and his profit on the speculation after paying the other workmen engaged by him. (24) The claimant's average weekly earnings as a brusher during the same period were £2, 17s. 6d."
The case further stated:—"I found in law that the claimant was entitled to an award of compensation as for partial incapacity, and awarded against the respondents for payment to the claimant of compensation in respect of partial incapacity at the rate of 8s. 9d. per week, commencing payment thereof as from 4th January 1938, and continuing payment thereof until the same be competently varied or ended"
The question of law for the opinion of the Court was:—"On the facts stated was I entitled to proceed on the method of determining the claimant's and appellant's weekly earnings which I adopted, and to limit the weekly payments of compensation to the amount awarded?"
The case was heard before the Second Division on 7th November 1939, when the Court remitted to the arbitrator (1) to incorporate in the stated case the written contract between the parties, and (2) to restate the case or supplement the case as now stated.
In obedience to the remit the arbitrator supplemented the stated case as follows:—
"(1) By adding to the statement of facts the following additional statement of facts:—3 (a) This contract is set out in Appendix A. 3 (b) This document contained all the terms of the contract between the parties. 19 (a) It was agreed by the respondents that in respect of the said contract the claimantquoad his earnings as a workman was to be taken as employed as a workman within the meaning of the Workmen's Compensation Acts and the said Scheme. 19 (b) It was agreed by them that quoadthese earnings the contract was to be taken as a contract of service. 19 (c) It was agreed by the respondents that quoad the profits on the contract the claimant was to be taken as an independent contractor. 19 (d) In assessing compensation the respondents' procurator asked me to consider the contract as a composite contract. 19 (e) For the same object the claimant's procurator asked me to consider the contract as a contract of service. 19 (f) In assessing the compensation I took the contract to be a composite contract. (2) By adding to the finding in law between the words “claimant” and “was entitled” the words “with respect to his earnings as a workman.”
"Appendix A.
"The contract after mentioned is accepted subject to the following conditions, viz.:—That the contractor agrees to and shall respect the rules of the colliery. That the contractor shall take the risk of the work to be done, and all stoppages arising from unforeseen causes or beyond the company's control. That the work entrusted to the contractor shall be done to the entire satisfaction of the manager. That the manager shall have power to regulate the number of shifts to be worked every 24 hours, and the number of men to be put on each shift. That the manager shall have power to alter the mode of carrying out the contract arising from a change in the metals, the lie of the strata, or for greater security to the men at work, and all from time to time as he may see fit. That the manager may stop any contract before the expiration thereof, if he be dissatisfied either with the conduct of the contractor or with the quality of the work performed. That the manager at any time may retain 10 per cent of the amount agreed upon, if he considers this necessary, in order to the proper fulfilment of the contract. After notice has been given to the contractor of any work...
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