Wishney v Archibald Russell Ltd
| Jurisdiction | Scotland |
| Judgment Date | 25 November 1937 |
| Docket Number | No. 7. |
| Date | 25 November 1937 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
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. 1 (1)CompensationAmountTotal or partial incapacityWorkman fit for, but unable to obtain, light workProbability that if uninjured he would still have been at his pre-accident job.
An injured colliery machineman, who had received compensation from his employers as for total incapacity until certified by a medical referee to be so far recovered as to be fit for light work on the surface, unsuccessfully tried to obtain such employment, and later claimed compensation from his employers as for total incapacity, founding on section 9 (4) of the Workmen's Compensation Act, 1925, as amended by section 1 (1) of the Act of 1931. His claim was refused by the arbitrator, whowhile finding that he was fit for light work, that he had taken all reasonable steps to obtain employment, and that, if he had not been injured, he would probably have been at his pre-accident jobfurther found that it was not proved that, since being certified as fit for light work, it was probable that, but for the continuing effects of his injury, he would have been able to obtain work in the same grade in the same class of employment as before the accident, and that it was not proved that his failure to obtain employment was a consequence wholly or mainly of the injury.
Held (1) that the workman's claim did not fall within the scope of sec. 9 (4) (i), in respect that it had not been found that it was probable that, but for the continuing effects of his injury, he would have been able to obtain work in the same grade in the same class of employment as before the accident; and that a finding that, if he had not been injured, he would probably have been at his pre-accident job was not equivalent thereto; and (2) that the workman's claim did not fall within sec. 9 (4) (ii), in respect that the arbitrator had expressly found in fact that it was not 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, distinguished.
In an arbitration under the Workmen's Compensation Act, 1925, in the Sheriff Court of Lanarkshire at Airdrie, in which Adam Wishney, machineman, claimed compensation from his employers Archibald Russell, Limited, Tannochside Colliery, Uddingston, 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),1 the Sheriff-substitute (Guild) refused the claim, and at the request of the workman stated a case for appeal.
The case stated that the arbitrator found the following facts admitted or proved:"(1) That on and prior to 27th January 1936 the claimant and appellant was in the employment of the respondents as a machineman in their colliery at Tannochside, Uddingston;(2) that on 27th January 1936 the claimant and appellant sustained injury by accident arising out of and in the course of his employment with the respondents;(3) that the injury to the claimant and appellant consisted of injury to the abdomen and fracture of the pelvis;(4) that, in consequence of the said injuries, the claimant and appellant became totally incapacitated;(5) that liability to pay compensation was admitted, and compensation was paid at the rate of 30s. per week as for total incapacity down to 10th January 1937;(6) that by the end of 1936 the claimant and appellant had partially recovered, and that on 2nd February 1937 the claimant and appellant was examined by a medical referee, who certified him as partially recovered and fit for many forms of light work on the surface;(7) that since being certified as fit for light work the claimant and appellant had tried to obtain such work, but had failed to obtain employment;(8) that it was not proved that since the claimant and appellant started to look for work there has been a vacancy for a machineman at the pit where he was employed at the date of this accident;(9) that it was not proved that there was any shortage of machinemen in this area;(10) that it was not proved that since the claimant and appellant was certified as fit for light work, it is probable that, but for the continuing effects of his injury, he would have been able to obtain work in the same grade in the same class of employment as before the accident;(11) that it was not proved that the claimant's and appellant's failure to obtain employment was a consequence wholly or mainly of the injury;(12) that the claimant and appellant had taken all reasonable steps to obtain employment;(13) that, if the claimant and appellant had not been injured, he would probably still have been at
his pre-accident job;(14) that the respondents had all along been willing to pay compensation as for partial incapacity as from 10th January 1937, but that the rate tendered was 14s. 3d. per week;(15) that the appropriate rate of compensation for partial incapacity was 15s. per week."The case further stated:"I found in law that the claimant and appellant was entitled to an award of compensation as at the rate of 15s. per week as from 10th January 1937, and I awarded compensation to the claimant and appellant at the rate of 15s. per week in respect of partial incapacity as from 10th January 1937 until the further orders of Court, and I found no expenses due to or by either party."
The questions of law for the opinion of the Court were:"(1) In the circumstances above stated, was I entitled to hold that the case did not fall within the terms of section 9 (4) of the Workmen's Compensation Act, 1925, as amended by section 1 of the Workmen's Compensation Act, 1931? (2) In the circumstances stated was I entitled to refuse to award the claimant and appellant compensation as for total incapacity?"
The case was heard before the Second Division (without Lord Pitman) on 24th and 25th November 1937.
LORD JUSTICE-CLERK (Aitchison).The main question which arises upon this appeal is whether the arbitrator was entitled to hold that the workman could not claim the benefit of section 9 (4) of the Workmen's Compensation Act, 1925, as amended by section 1 of the Workmen's Compensation Act, 1931.
In order to come within the beneficial provision of that subsection it is necessary for the workman to establish certain things. He must first show that he has so far recovered from the injury by accident as to be fit for employment of a certain kind, and that he has failed to obtain employment. That condition is satisfied...
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