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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Freeland v. Summerlee Iron Co., Ltd [1913] UKHL 518 (10 February 1913) URL: http://www.bailii.org/uk/cases/UKHL/1913/50SLR0518.html Cite as: 50 ScotLR 518, [1913] UKHL 518 |
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Page: 518↓
(Before the
(In the Court of Session, July 5, 1912, 49 S.L.R. 841 and 1912 S.C. 1145.)
Subject_Master and Servant — Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), sec. 1 (3) — Arbitration — Competency — “Question” — Duration of Compensation.
The employers of a workman who had been totally incapacitated by accident admitted liability under the Workmen's Compensation Act 1906, tendered the compensation due, the amount of which was not in dispute, and asked the workman to sign a receipt which stated—“At the first or any subsequent payment liability is admitted only for the compensation to date of payment. Further liability, if any, will be determined week by week, when application for payment is made.” The workman, maintaining that he was entitled to an unqualified admission of liability such as he could embody in a memorandum of agreement, refused to sign the receipt, and initiated arbitration on the ground that there was a “question” as to the duration of the compensation. The employers challenged the competency of the arbitration proceedings.
Held that there was a question, unsettled by agreement, as to the duration of the compensation, and that arbitration was therefore competent.
The case is reported ante ut supra.
The employers, the Summerlee Iron Company, Limited, respondents in the Court of Session, appealed to the House of Lords.
At the conclusion of the argument for the appellants:—
In this case the respondent, who was a workman in the employ of the appellant company, sustained injury to his right eye in the course of his employment as a miner in their colliery, and he has been totally incapacitated since the date at which the injury was received. There is no doubt as to the amount which the appellants are liable to pay, it is agreed that it is 14s. 9d. a week in respect of total incapacity in accordance with the Act. But a question has been raised, which is the subject of these proceedings, as to whether there is a dispute under the Act as to the duration of the compensation. The appellants, admitting liability to the extent which I
Page: 519↓
In that state of things the question comes before this House as to whether the decision of the Second Division was right, and reliance has been placed—I think not without apparent justification—by the learned counsel for the appellants on the case of Payne v. Fortescue (which is reported in 1912, 3 K.B., p. 316), a decision of the Court of Appeal in England upon a question which presented some analogy to the case before your Lordships.
I do not think it necessary to go in detail into the question whether Payne v. Fortescue was rightly decided. It is sufficient to say that there are observations in the judgment with which I do not find myself in agreement, and I cannot in this appeal from the Court of Session treat myself as bound by that decision. I therefore turn to the Act of Parliament itself as the only matter which concerns us here, and upon the construction of the section on which the argument turns I am of opinion that there is a question as to duration here which arose in these proceedings and which ought to have been decided, and upon which the respondent was entitled in presenti to have arbitration. I agree with the reasons for this conclusion given by Lord Salvesen in his judgment, and I cannot treat this case as disposed of by the principle laid down in general terms by Lord Pearson in the case of Sweeney (8 F. 965, 43 S.L.R. 690). The facts in this present case raise what in my opinion is a definite question.
Under these circumstances, I agree with the decision of the learned judges in the Second Division, and move your Lordships that the appeal be dismissed.
Earl of Halsbury—I am of the same opinion.
In these circumstances there seems to me to underlie the judgment of the Second Division a still more elementary proposition than any that might arise under the statute, namely this, that so long as a party has secured by private arrangement the full rights which he had either by statute or at common law, and no suggestion of a challenge of these rights by the persons so admittedly liable is made, it hardly seems appropriate to invoke proceedings under a statute for giving him the very thing which he is then obtaining and has throughout obtained. In those circumstances I cannot hold that this House can consider the decision of Lord Pearson to which I have referred as assisting towards a conclusion in this case.
I desire particularly to add, with regard to the case of Payne v. Fortescue, that, like my noble and learned friend on the Woolsack, I do not find myself in agreement with certain observations there made by the learned Judges. The circumstances, moreover, do not equate with those of the present case. In the present case no payment has been made, and the issue is at once taken for the determination of the rights of parties. The dates are significant. On the 29th December this workman, totally incapacitated by reason of an injury sustained to his eye, was offered by his employers a certain weekly payment on condition of granting this receipt. He declined, and on the following 5th January—no payment by the employer by that time having been made (and no payment having yet been made)—he brought his application under the Workmen's Compensation Act. The whole question between the parties was stated timeously. The workman is in the position of having been injured; the employer is in the position of having declined to pay; and, with much respect to some observations which have been made in certain decided cases, the difference and dispute between the parties is not, as it humbly appears to me, confined to the mere question of the duration of compensation.
There are three points no doubt, as was
Page: 520↓
I do not proceed to the further point. The policy of the statute is that there must be something which both parties can look to; business could not be conducted unless both parties, employer as well as employed, were in the position of having something definitely fixed to which reference could be made in subsequent weeks, quarters, or years. It is quite true, as has been said by Lord Salvesen, that a workman accepting payment under such a receipt would, if he sought to change the situation which was thus established, be put in petitorio. I do not find myself in any difference with the judgment of the Second Division, and I desire to say, for my own part, that there are passages in the judgment of Lord Salvesen, notably the second and third passages of his judgment, which I entirely accept and respectfully adopt.
Their Lordships dismissed the appeal, with expenses.
Counsel for the Appellants— Munro, K.C.— H. W. Beveridge. Agents— W. T. Craig, Glasgow—W. & J. Burness, W.S., Edinburgh — Beveridge, Greig, & Company, Westminster.
Counsel for the Respondents— Moncrieff, K.C.—Fenton. Agents— Hay, Cassels, & Frame, Hamilton— Simpson & Marwick, W.S., Edinburgh— Deacon & Company, London.