Scottish Court of Session Decisions

The Workmen's Compensation Act 1923 enacts—Section 1—“The Workmen's Compensation (War Addition) Acts 1917 and 1919 shall cease to have effect after the thirty-first day of December 1923, and are hereby repealed: Provided that the addition provided for in the said Acts shall continue to apply to a weekly payment payable to a workman under the Workmen's Compensation Act 1906 (hereinafter referred to as the principal Act) or under any enactment superseded by that Act, in respect of total incapacity arising from an accident which occurred on or before the said thirty-first day of December, so long as the workman remains totally incapacitated, and the addition shall, for all purposes, be treated as if it were part of the weekly payment.”

This was a Stated Case on appeal from a decision of the Sheriff-Substitute ( Malcolm) at Dundee in an arbitration under the Workmen's Compensation Acts 1906 and 1923 between G. C. Taylor & Son, sack manufacturers, Jamaica Street, Dundee, defenders and appellants, and John Irons, calender worker, 130 Alexander Street, Dundee, pursuer and respondent.

The Case stated—“This is an arbitration arising by way of minute following on a recorded memorandum of agreement between the parties. The facts out of which the question raised by the minute arises are not in dispute, and are as follows:—1. On 20th July 1921 the respondent, who was a calender worker in the employment of the appellants, was injured by accident arising out of and in the course of his employment with them. The injury resulted in the fingers of one of the respondent's hands and the thumb, forefinger, and middle finger of the other hand having to be amputated, whereby he was, and still is, totally incapacitated. 2. By agreement, dated 10th August 1921, the appellants admitted liability to the respondent in compensation under the Workmen's Compensation Acts, and agreed that during his

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total incapacity the weekly payments of compensation should be £1 under the Workmen's Compensation Act 1906, and 15s. under the Workmen's Compensation (War Addition) Acts 1917 and 1919. 3. A memorandum of the agreement was recorded in the Register of the Sheriff Court of Forfarshire at Dundee on 31st January 1922. 4. On 21st February 1922, on a minute lodged for the appellants, which stated that the incapacity of the respondent is total and permanent, the weekly payments under the Workmen's Compensation Act 1906 were redeemed by a payment of a lump sum of £506, 16s. 9d. 5. The weekly payments of 15s. under the Workmen's Compensation (War Addition) Acts 1917 and 1919 continued to be paid by the appellants to the respondent until 31st December 1923, after which date they have discontinued payment thereof. On the above agreed facts the case was debated before me on 8th February 1924. The appellants contended that by operation of section 1 of the Workmen's Compensation Act 1923, and the proviso to that section, coupled with the fact that the weekly payments of £1 under the principal Act had been redeemed, the respondent's right to payment of the additional weekly sum ceased as at 31st December 1923. They also contended that in any event the present application by way of minute is incompetent, the respondent's proper procedure being to have given a charge on the recorded memorandum of agreement, on which the question would be tried by way of suspension. I held that the respondent is entitled to payment of the weekly addition of 15s. so long as he remains totally incapacitated, but that as all questions between the parties have been settled by agreement, the present arbitration, being in form one for arbitration, is incompetent, the proper procedure being for the respondent to have given a charge on the recorded memorandum of agreement. I accordingly dismissed the minute. I found the respondent entitled to expenses, on the ground that he was compelled to take proceedings by reason of the appellants' discontinuance of payment of the weekly addition, and that though the application is wrong in form the appellants are in the wrong on the merits of the question at issue, and as the expense of vindicating his right would have been forced on the respondent in any event, it is a minor and technical circumstance that he adopted wrong procedure.”

The questions of law included the following—“ 1. Was I right in holding the minute to be incompetent? 2. Was I right in finding the respondent entitled, subsequently to 31st December 1923, and so long as total incapacity due to the accident continues, to payment of the weekly additional sum which was payable to him up to and including that date under the Workmen's Compensation (War Addition) Acts 1917 and 1919?”

The Sheriff-Substitute appended the following note to his award:—[ After narrating the facts]—“Two questions arise—one on the merits and the other on the competency of the application. That on the merits is whether, the weekly payments under the principal Act having been redeemed, claimant's right to the war additions ceases on the repeal of the Acts of 1917 and 1919 by section 1 of the Act of 1923, or is continued by the proviso to that section. The objection taken to the competency is to the effect that in any event the proper procedure for the claimant to have adopted was by way of a charge on the recorded memorandum, following on which the real question would have been tried on a suspension raised by the respondents if so advised.

It has been repeatedly laid down by the Court of Session as a matter of procedure that the arbitrator should deal at one and the same time with all questions arising in workmen's compensation cases, whether preliminary, such as competency and relevancy, or on the merits, and exhaust the whole case so that the possibility of a multiplication of appeals may be avoided and all questions may be disposed of on one appeal, if appeal there be. I refer to the cases of Rankine v. Alloa Coal Company, Limited, 1903, 5 F. 1164, and Ellis v. Fairfield Shipbuilding, &c., Company, Limited, 1913 S.C. 217. I shall accordingly deal with the questions both on merits and competency, and as the latter is to some extent dependent on the merits I take the question on the merits first. By the agreement between the parties claimant was expressly given compensation of £1 weekly under the principal Act and 15s. weekly under the Acts of 1917 and 1919 during total incapacity. Had the 15s. under the two latter Acts not been mentioned, he would still have had a right to it under the Acts so long as total incapacity endured. By the Act of 1917, sec. 1 (2), the additional weekly sum is made part of the weekly payment under the principal Act for the purposes there stated, which include, inter alia, the provisions relating to the recovery of weekly payments, and by the same sub-section it is enacted that if the liability to make the weekly payment be redeemed, the additional weekly sum shall continue to be payable as if redemption had not taken place. Redemption of the weekly payment due under the principal Act is thus declared not to affect the right to the weekly payment of war additions, that additional weekly payment is not included in the redemption and is in fact not redeemable, and the right to it therefore remains just as if redemption had not taken place. That right was recognised in the present case, and the weekly additional sum was paid down to 31st December 1923. Respondents, however, contend that the effect of section 1 of the Act of 1923, which provides that the Acts of 1917 and 1919 shall cease to have effect after 31st December 1923 and are repealed, is in the present case to put an end to the right to the additional weekly sum. That would have been true but for the proviso, the general effect of which is to save the right to the additional weekly sum during total incapacity in the case of accidents occurring before 31st December 1923. The combined effect of the section plus the proviso is to put an end to war additions

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subsequent to 31st December 1923 (after which date a higher scale of compensation under the amended principal Act comes into force), but to save those in existence prior to that date. Respondents combat the applicability of the proviso to this case by an argument based upon its exact phraseology—an argument which seems to me to put upon that phraseology a strained and unduly narrow construction. The proviso says that ‘ The addition provided for … shall continue to apply to a weekly payment payable to a workman under the Workmen's Compensation Act 1906.’ Respondents argue that as the weekly payment under the Act of 1906 has been redeemed there is no longer anything in existence to which the addition can ‘ continue to apply,’ that it cannot apply to itself, and that therefore the proviso being incapable of being given effect in the circumstances the right to the addition ceases. That argument is in my opinion untenable for the following reasons The additional weekly sum was itself by the Act of 1917 made part of the weekly payment under the Act of 1906 for the purposes specified, including recovery thereof, and it continues to be such. There is no violence to language or meaning therefore in holding that it can continue to apply to itself as a remaining portion of the weekly payment after redemption of the original portion under the Act of 1906 had taken place. The actual language of the proviso is in fact synonymous with ‘ continue to apply ‘ or ’ continue to be payable.’ It is conceded by respondents that had redemption not taken place claimant's right to the weekly additional sum would still have remained good. Their argument for the termination of that right therefore makes the act of redemption the circumstance which operates with destructive effect on the weekly addition. But as I have already pointed out, the right to the additional sum was by the Act conferring it expressly reserved from any operative effect of the act of redemption. All that is redeemed is that part of the compensation originally due under the Act of 1906. The remainder, the weekly additional sum, still continues to be payable as an unredeemed part of the weekly payment. The fact of redemption therefore as an element in respondent's case for cessation of the weekly addition must be eliminated, and when that is done they must find the foundation for their contention solely in the terms of section 1 of the Act of 1923 and its proviso, because it is admitted that up to the coming into operation of the Act the right to the weekly addition stood good. But so far from the section plus the proviso favouring their contention, its whole spirit, purpose, and intention are conceived in the opposite direction. The purpose of the section itself is to give higher rates of compensation, and the proviso is an enabling enactment conceived in favour of the workman to preserve to him, in circumstances such as the present where he will not be in right of the higher rates of compensation coming into force under the Act, the weekly additional sum to which he was hitherto entitled. It is not the intention of section or proviso to deprive a workman of compensation hitherto payable. That construction therefore ought to be given to it which favours its intention, so long as it does not run counter to the language used. I quote the following general dictum of Lord President Dunedin in a case whose subject-matter had no relation to that of the present one— Campbell's Trustees v. O'Neill (1911 S.C. 196)—as illustrating the duty of a court in such circumstances—“It is not very difficult to get at the general idea which was underlying the draughtsmanship, and I think in these cases it is our duty, however inaccurate in terms we may find the Act, to give effect to what we consider the spirit, so long of course as the words used do not absolutely preclude us from doing so.’ Here the words used in my opinion perfectly naturally bear the construction which it was practically admitted is the intention of the proviso, that in all cases where the accident occurred on or before 31st December 1923 the weekly additional sum shall continue to be payable so long as total incapacity endures. I think therefore the claimant is entitled under present conditions to payment of 15s. weekly.

I come back now to the question of the competency of this application. It is in form, by the terms of the crave of the minute, an original application for arbitration or an application for arbitration de novo. The authority for arbitration under the Acts is section 1 (3) of the principal Act, the subjects of arbitration being liability to pay, and amount or duration of compensation, but by the terms of the sub-section arbitration is competent on one or more of these subjects only if they have not been settled by agreement. In the present case all three questions have been settled by agreement, which has been recorded, duration of compensation of course being always indefinite in the sense that it depends on incapacity, but the only competent way of affecting it is by an application for review founded on a change in capacity. That a legal question has arisen under supervening legislation, under which respondents deny their liability to continue payments settled by and hitherto due under the agreement, does not affect the fact that all questions have been settled by agreement, and if that be so arbitration is excluded— Dunlop v. Rankin & Blackmore, 1901, 4 F. 203; Lochgelly Iron and Coal Company, Limited v. Sinclair, 1907 S.C. 1071. Claimant's proper procedure in my opinion was to give a charge for payment, leaving it to respondents to test the question as to whether their liability had ceased by bringing a suspension. I think therefore this minute must be dismissed.”

Argued for the defenders and appellants—The Sheriff-Substitute was right in dismissing the minute as incompetent. As all questions at issue here had been settled by agreement, arbitration was excluded— Dunlop v. Rankin & Blackmore, 1901, 4 F. 203, 39 S.L.R. 146; Lochgelly Iron and Coal Company, Limited v. Sinclair, 1907 S.C. 1071, 44 S.L.R. 750. The Sheriff-Substitute

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had erred in giving an opinion on the merits for, since he had dismissed the application as incompetent, these were not properly before him. In any event, the weekly payments under the 1906 Act were commuted prior to the passing of the 1923 Act, and so the proviso of section 1 of that Act did not apply. For on a correct interpretation of that proviso, where the weekly payments had been commuted prior to the date of the Act, the result was to deprive a workman of the additional payments under the War Additions Act, these Acts having been repealed by the 1923 Act, An Act of Parliament had to be construed strictly, and in view of the explicit words of the section the claimant could not succeed—Maxwell's Interpretation of Statutes, 6th ed., p. 26; Vickers, Sons, & Maxim, Limited v. Evans, [1910] AC 444, per Lord Loreburn at p. 445; Thomson v. Gould, [1910] AC 409, per Lord Mersey at p. 420.

Argued for the respondent—This was a question of liability under the Act of 1923. It did not arise under the War Addition Acts, because these had been repealed, and were now relevant for comparison merely when they were referred to by the Act of 1923. It followed that the agreement did not, and could not, refer to that Act for the reason that it was arrived at before the Act was passed. That being so, the present dispute was clearly not covered by the agreement, and ought to be determined by arbitration in the usual way. The alternative procedure that was suggested—charging upon the recorded memorandum of agreement—was an extremely clumsy one, and a workman ought not to be compelled to have recourse to it, unless the language used by the Legislature made that absolutely essential— Kane v. Stein & Company, 1915 S.C. 863, per Lord Skerrington at p. 866, 52 S.L.R. 689, at p. 690. Moreover, as the War Addition Acts had been repealed, it was doubtful whether a charge was competent—Graham Stewart on Diligence, p. 292. As regards the question on the merits, the Sheriff-Substitute had found in favour of the respondent, and his judgment on that point ought not to be disturbed. Section 1 of the 1923 Act, which repealed the War Addition Acts of 1917 and 1919, contained a saving clause expressly reserving the addition granted in cases of total incapacity, where the accident had occurred prior to the passing of the Act. And it could not be said that an addition, allowed in respect of a payment made week by week, was lost merely because the weekly payments were commuted for a lump sum. Such an interpretation was both unjust and entirely inconsistent with the intention of the Act. Campbell's Trustees v. O'Neill. 1911 S.C. 188, 48 S.L.R, 115, was an authority for the proposition that the underlying intention of the statute must be given effect to, unless the actual words used made that impossible—see opinion of Lord Dunedin in that case at p. 196, 48 S.L.R. 119. On a correct interpretation of the proviso, the workman was entitled to succeed in his claim, and the judgment of the Sheriff-Substitute on the merits ought to be affirmed.