Vickers, Son, & Maxim v. Evans [1910] UKHL 697
(Before the Lord Chancellor (Loreburn) , Lords Macnaghten , James of Hereford , and Collins .)48 SLR 697Vickers, Son, & Maxim v. Evans.Subject_ Master and Servant — Workmen's Compensation Act 1906 (6 Edw. VII, c. 58), Sched. I, sec. 16 — Review — Minor Workman — Weekly Earnings — Probable Earnings in Other Employment. Facts:The Workmen's Compensation Act 1906, by Sched. I, sec. 16, provides that in a review of a weekly payment “where the workman was at the date of the accident under twenty-one years of age and the review takes place more than twelve months after the accident, the amount of the weekly payment may be increased to any amount not exceeding fifty per cent. of the weekly sum which the workman would probably have been earning at the date of the review if he had remained uninjured, but not in any case exceeding one pound.”Held that the amount of the probable earnings must be estimated by the arbiter in the exercise of his discretion, and need not be restricted to earnings which the workman would have obtained had he continued under the same employer.A workman, aged twenty, was injured while in the service of the appellants as a labourer. He was qualified as a skilled artisan in another trade to which he meant to return when trade improved. In an application for review of the weekly payment more than a year after the injury, the County Court Judge found that his probable earnings had he remained uninjured would have been 30s. He would not have earned so much in the appellants' employment. The weekly payment fixed by the County Court Judge upon this basis was affirmed by the Court of Appeal ( Cozens-Hardy , M.R., and Fletcher-Moulton , L.J., Buckley , L.J., dissenting).The employers appealed.Their Lordships gave considered judgment as follows:—
Lord Chancellor (Loreburn) — This appeal may serve to remind us of a truth which is sometimes forgotten, that this House sitting judicially does not sit for the purpose of hearing appeals against Acts of Parliament, or of providing by judicial construction what ought to be in an Act, but simply of construing what the Act says. We are considering here, not what the Act ought to have said, but what it does say, and I agree with the conclusion which has been arrived at by the Court of Appeal. The standard by which the weekly payments are to be measured in the ActPage: 698 ↓
Lord Macnaghten —I agree. I do not see any reason for departing from or qualifying the plain words of the section, and I think that the evidence on which the learned County Court Judge seems to have relied was properly admitted. There are no doubt many employments, such, for instance, as employment in a colliery, in which, as has been pointed out, boys follow the calling of their fathers, looking forward to a regular increase of earnings as they become more and more capable of doing a man's work. In such a case as that there is no difficulty in estimating the probable amount of earnings which the workman if uninjured would have been able to gain. On the other hand, there are employments in which boys are engaged simply because they are boys and not men, in which there is no prospect of advancement or employment when they grow up to man's estate. When they cease to be boys they are discharged to find their livelihood as best they can. In such a case the method which the statute has adopted seems to be the only method practicable. Within a fixed limit the statute leaves the question quite at large, trusting to the discretion and good sense of the County Court Judge. No doubt the task committed to him is somewhat difficult; but the Judge has been trusted, and I think properly trusted, to deal with each case reasonably without any fear of his making an extravagant or immoderate estimate of the workman's earning capacity.Lord James of Hereford concurred.Lord Collins —I am of the same opinion. There is no doubt that in the earlier Act the standard by which the compensation was to be appraised was the standard of the workman's earnings in the employment of the same employer in whose employment he was at the date of the accident; but as was pointed out by Cozens-Hardy, M.R., in the case of a minor under the present Act, there has been a radical difference made and the standard has been altered in several respects. For instance, 100 per cent. is substituted for 50 per cent. of his average weekly earnings, and we find also that the analogy of other employments under other masters is introduced, failing the possibility of his continuing to carry on his employment in the employment of the same master. So that you have a radical alteration in the standard introduced in the case of a minor. The problem to be solved, or the salient point at all events to be solved, by the learned County Court Judge in the case of a minor, according to the 16th clause of the first schedule, is that on such review “the amount of the weekly payment may be increased to any amount not exceeding 50 per cent. of the weekly sum which the workman would probably have been earning at the date of the review if he had remained uninjured.” So that the primary question which the County Court Judge has to decide is what they would have amounted to under conditions which have not arisen. In fact it is a matter of speculation as to what the workman would have been earning if he had remained uninjured. Now that prima facie would leave the learned County Court Judge at large to consider (having regard to the constitution and the antecedents of the workman) what in all probability he would have been earning if uninjured. That clearly would not prima facie have cut down the consideration to what he would have been earning in the same employment. But then, furthermore, the particular clause here — clause 16—does not in terms refer to the standard of his actual employment at all. The words are not there, and the proposition, which is obviously the primary proposition to be dealt with by the learned County Court Judge who is considering it, is what would havePage: 699 ↓
Appeal dismissed.Counsel for Appellants — C. A. Russell, K.C.— H. T. Waddy. Agents — Telfer, Leviansky, & Company, Solicitors.Counsel for Respondents— E. M. Pollock, K.C.— G. A. Scott. Agents— H. G. Campion & Company, Solicitors.