WORKMEN'S COMPENSATION ACT, 1906-Continued.
liability, refused to sign the receipt, and initiated arbitration pro-
ceedings. Held that there was a question between the parties as to
the duration of the compensation which had not been settled by agree-
ment, and, accordingly, that the arbitration was competent. Freeland
v. Summerlee Iron Co., Limited, (H. L.) p. 8.

Sec. 1 (3), Second Schedule (9)—Act of Sederunt, 26th June 1907, secs.
11 (1) and 12—Arbitration to obtain award of compensation—Simul-
taneous application for warrant to record memorandum of agreement
-Conjunction-Competency.

19. A workman presented an application in the Sheriff Court for
warrant to record a memorandum of agreement for payment of
compensation under the Workmen's Compensation Act, 1906, in
respect of an accident. The genuineness of the memorandum was
disputed by his employers. While the application was pending
he initiated arbitration proceedings to obtain an award of com-
pensation under the Act in respect of the same accident. Held
that the two proceedings could not competently be conjoined,
and that the arbitration should be sisted until the application for
the warrant had been determined. King v. Arniston Coal Co.,
Limited, p. 892.

Sec. 2 (1) Delay in giving notice and making claim-“ Mistake or
other reasonable cause."

20. Held that, where a delay of more than six months in giving notice
and claiming compensation was due to the workman's ignorance
of the serious nature of his injury, it was occasioned by "mistake
or other reasonable cause," within the meaning of sec. 2 (1) of the
Act, and so was not a bar to the maintenance of proceedings for
compensation. Ellis v. Fairfield Shipbuilding and Engineering
Co., Limited, p. 217.

Sec. 13- Dependants "-Persons not in receipt of support but with
legal right and prospect of enforcing Children deserted by their
father and maintained chiefly by their brothers-Competence of appeal
on question of dependency.

21. Held that a person may be dependent upon a workman at the time of
his death within the meaning of the Workmen's Compensation Act,
and so entitled to compensation, although he was in fact receiving at
the time no support from the workman, provided that he had at the time
a legal right to support, and that there was also a reasonable prospect
of his being able to enforce and of his enforcing the right to a greater
or less extent at some future period. Observed that the question of
dependency is one of fact upon which the decision of the arbitrator
is final, unless there is no evidence to support it, or unless he has
misdirected himself upon a question of law. Circumstances in
which held that there was evidence to justify the finding of an
arbitrator that two pupil children were wholly dependent on their
father's earnings at the time of his death in April 1911, and accord-
ingly entitled to compensation under the Workmen's Compensation
Act, although they had received practically no support from him since
March 1907. Young v. Niddrie and Benhar Coal Co., Limited,
(H. L.) p. 66.

Sec. 13, and First Schedule (1) (a) (ii.)— Dependants "-Children
deserted by father-Prospects of future support.

22. Dependency is always a question of fact; and, even where children
have been deserted by their father for three years before his death
and have received no support from him during that time, they
may still be held to be partially dependent upon him if there was a
reasonable probability that, had he lived, he would in the future

WORKMEN'S COMPENSATION ACT, 1906—Continued.

have contributed to their support. Dobbie v. Egypt and Levant
Steamship Co., Limited, p. 364.

First Schedule (1) (a)-Where death "results" from the injury-Death
from disease following on an accident.

23. A workman had a fall from a ladder whereby his ankle was injured,
and he also suffered from general pain and shock, which lasted
until, about a month after the accident, he was seized with
violent internal pains and died from appendicitis peritonitis. In
an arbitration upon a claim by his widow for compensation, in
which two doctors were examined for each side, there was a con-
flict of medical evidence, one doctor, for the pursuer, saying
that probably the workman would have been alive now had he
not met with the accident," the other that the condition of which
the workman died
was consequent, indirect if you will, of the
accident," and that " in all probability" he "would not have died
but for the accident." The two doctors examined for the defenders
could see no connection between the accident and the cause of
death. Held that there was evidence to support the arbitrator's
finding that death was the result of the accident.
Euman v.
Dalziel & Co., p. 246.

66

First Schedule (1) (a)—Where death results" from the injury-Death
from operation not confined to injury caused by accident.

24. A workman accidentally ruptured himself and was obliged to
undergo an operation for hernia. In the course of the operation
he was discovered to be suffering also from another old hernia
and both were operated upon. He subsequently died from heart
weakness and degeneracy" set up by the strain of the operation."
Held that there was evidence to justify the arbitrator in finding
that death was the result of the accident. Thomson v. Mutter,
Howey, & Co., p. 619.

First Schedule (1) (b)-Where incapacity "results" from the injury—
Refusal to undergo surgical operation.

25. A workman accidentally injured in the foot and thereby incapaci-
tated, refused to undergo a simple operation which, it was reason-
ably certain, would have cured him. He acted on the advice of
his own doctors, who were of opinion that the operation, though
safe, would be useless. Held that he was precluded from claim-
ing a continuance of compensation. O'Neil v. John Brown & Co.,
Limited, p. 653.

First Schedule (1) (b)-When incapacity "results" from the injury-
Supervening aneurism.

26. A miner strained his back on 7th December 1911 and in conse-
quence became incapacitated for work, but on 27th May resumed
and continued at full work until 15th August when he became
totally incapacitated owing to dilation of the heart caused by an
aneurism of the aorta. He did not feel pain in the cardiac region
or show any symptoms of heart trouble until July. Held that
the arbitrator, who was of opinion that the aneurism was caused
by the miner being engaged between May and August at work
which was beyond his physical powers, was entitled to find that his
present incapacity was not due to the accident of 7th December.
Paton v. William Dixon, Limited, p. 1120.

First Schedule (1) (b) and (2) (c)-Average weekly earnings-Grade of
employment Change of grade-Appointment to work higher class
machine dealing with finer material.

27. A girl in a rope and sailcloth factory, employed at a weekly wage of
7s. 6d. to work a drawing machine dealing with hemp which was

WORKMEN'S COMPENSATION ACT, 1906-Continued.

afterwards spun into rope, was promoted to work, at a weekly
wage of 8s., a drawing machine dealing with tow, a finer material
which was afterwards woven into sailcloth. Five weeks after the
change she was accidentally injured. Held that the change was
a change in the "grade" of her employment within the meaning
of the Workmen's Compensation Act, 1906, First Schedule (2) (c),
and that compensation fell to be calculated on the basis of her
average weekly earnings for these five weeks. Dalgleish v.
Edinburgh Roperie and Sailcloth Co., Limited, p. 1007.
First Schedule (3)-Amount of compensation-Partial recovery—
Review of weekly payments—Arbitrator's discretion.

28. When a workman, who has been totally incapacitated and has been
receiving full compensation in terms of the Workmen's Compen-
sation Act, partially recovers and is earning a wage, a prima facie
case arises for reducing his compensation: but it is open to him
to prove circumstances which will warrant the arbitrator, in the
exercise of his discretion, in refusing to diminish the compensation.
The circumstance that the compensation he has been receiving
together with the wage he is earning does not equal his average
weekly earnings before the accident does not by itself justify a
refusal to diminish. Pryde v. Moore & Co.,
p. 457.
First Schedule (15)-Remit to medical referee Ambiguous report—
Competency of arbitrator sending report back to medical referee for
explanation.

29. The report of a medical referee, to whom a remit has been made
under the Workmen's Compensation Act, 1906, First Schedule (15),
may competently be sent back to him by the arbitrator for ex-
planation, if it is ambiguous or unintelligible. Kennedy v. William
Dixon, Limited, p. 659.

First Schedule (15)-Remit to medical referee-Finality of referee's
report-Proof as to wage-earning capacity.

30. In an application to end the compensation payable to a miner who
had received an injury to his eye, the question of his condition
and his fitness for employment was referred to a medical referee
under paragraph (15) of the First Schedule to the Act. The
medical referee reported that his condition is such that I con-
sider he ought now to be fit to resume his ordinary work as a
miner below ground." The miner having lodged answers in which
he averred that he had not yet recovered from the effects of the
accident and that his earning capacity was not restored, the Court
allowed a proof as to the miner's wage-earning capacity, but
excluded all evidence with regard to his physical condition and
physical fitness for his ordinary work as a miner below ground,
as on those points the medical referee's certificate was final.
Cruden v. Wemyss Coal Co., Limited, p. 534.

First Schedule (16)—Review of weekly payments-Industrial disease-
Recovery-Susceptibility to recurrence-Question whether suscepti-
bility due to original attack-Onus of proof.

31. In an application by employers for the ending or diminishing of a
weekly payment of compensation it was proved that the workman,
after being duly certified as suffering from miner's nystagmus (an
industrial disease), was awarded compensation, that he had "now
completely recovered from this attack," but that he was susceptible
to a recurrence of the disease. It was not proved whether the
susceptibility was due to the original attack or to constitutional
predisposition, the evidence being inconclusive. Held that, as
the workman had recovered from the original attack, and as he

WORKMEN'S COMPENSATION ACT, 1906-Continued.

had failed to discharge the onus which lay on him of proving that
his susceptibility to recurrence of the disease was due to that
attack, the compensation fell to be ended. Darroll v. Glasgow
Iron and Steel Co., Limited, p. 387.

First Schedule (16)-Review-Minor workman-Probable earnings at
date of review-General rise in wages-Agreement fixing probable
earnings at prior date-Rise in wages between date of agreement and
date of review.

32. The compensation payable to a minor workman was fixed by
agreement at a weekly sum representing half the amount which,
in the opinion of the parties, he would have been earning at the
date of the agreement had he remained uninjured. Some months
afterwards, in consequence of a general rise in wages, he applied
to the Sheriff to have the compensation increased. Held that the
fact that there had been a general rise in wages between the date
of the agreement and the date of the application did not per se
entitle the workman to an increase, but that it was merely one of
the items to be taken into consideration by the Sheriff in deter-
mining for himself under paragraph 16 of the First Schedule to
the Act the weekly sum which the workman would probably have
been earning at the date of the review if he had remained uninjured.
Malcolm v. Thomas Spowart & Co., Limited, p. 1024.
Second Schedule (9)-Recording of memorandum-Terms of memo-
randum differing from terms of agreement Agreement to pay
compensation in terms of the Act.

33. An injured workman and his employers verbally agreed that
compensation should be paid to the former at the rate of 15s. ld.
per week. The workman thereafter signed a number of receipts,
each of which bore to be for weekly compensation to date under
the Workmen's Compensation Act, 1906, under which I claim for
personal injury by accident sustained by me." Thereafter the
employers objected to the recording of a memorandum which bore
that the agreement was to pay compensation at the foresaid rate
until the same is ended, diminished, redeemed, or suspended in
terms of " the Act, on the ground that the memorandum was not
genuine, because it differed in terms from the agreement which
contained no obligation as to future payments. Held that the
arbitrator, who had granted warrant to record the memorandum,
was right in so doing, in respect that the agreement was an agree-
ment to pay compensation in terms of the Act, and that the
memorandum merely set forth those terms. Pearson v. Babcock
& Wilcox, Limited, p. 959.

Second Schedule (9)-Recording of memorandum-Genuineness-
Written agreement Terms of memorandum differing from terms of
agreement.

34. A workman, who had been totally incapacitated by an accident,
received weekly payments of 10s. from his employers, for which
he granted receipts bearing that the payments were accepted "as
the weekly compensation payable during the period of total
incapacity for work as the result of the accident." He subse-
quently applied for warrant to record a memorandum which bore
that the parties had agreed that compensation be paid by "
the employers to the workman in terms of the Workmen's
Compensation Act, at the rate of 10s. per week from " the date of
the accident. Held that the memorandum was not genuine, in
respect of the omission of the qualification "during the period
of total incapacity." Pryde v. Moore & Co., p. 457.

WORKMEN'S COMPENSATION ACT, 1906—Continued.

Second Schedule (9) (d)-Agreement for redemption of compensation by
payment of lump sum-Application to record-Duty of Sheriff-clerk
to inquire into circumstances of agreement.

35. The Second Schedule (9) (d) of the Workmen's Compensation Act,
1906, provides that a Sheriff-clerk to whom a memorandum of
agreement for the redemption of a claim for compensation by pay-
ment of a lump sum is brought, may refuse to record it if, on
any information which he considers sufficient," it appears to him
that, by reason of the inadequacy of the sum or the means by
which the agreement was obtained, the agreement should not be
recorded. Held that the Sheriff-clerk is not bound in every case
ex proprio motu to inquire into these matters before proceeding to
record. Observations on the duties of the Sheriff-clerk in such a
case. M'Guire v. Paterson & Co., p. 400.

Second Schedule (9) (d)—Act of Sederunt, 26th June 1907, sec. 12—
Application to record memorandum-Agreement for redemption of
weekly payment-Minute by workman objecting to adequacy of sum
agreed on and to means by which agreement obtained-Reference by
Sheriff-clerk to Sheriff-Competency of procedure.

36. Held that where, upon a minute lodged by a workman objecting to
the recording of a memorandum of an agreement as to the re-
demption of a weekly payment on the grounds mentioned in para-
graph (9) (d) of the Second Schedule, the matter was referred by
the Sheriff-clerk to the Sheriff, it was the duty of the latter to
determine the questions thus raised, notwithstanding that the
minute was lodged by the workman and not by the Sheriff-clerk.
Burns v. William Baird & Co., Limited, p. 358.

Second Schedule (17) (b)—A. S. 26th June 1907, sec. 17 (h)—Appli-
cation for order on arbitrator to state case- -Arbitrator's refusal to
state question whether his findings in fact supported by the evidence
led-Whether question one of law or fact.

37. A workman, dissatisfied with the arbitrator's statement of a case
on appeal under the Workmen's Compensation Act, 1906, presented
a note for an order upon the arbitrator to state a case, averring that
certain facts, other than those stated by the arbitrator, had been
proved, and that certain of the arbitrator's findings were contrary
to the evidence, and proposing as one of the questions of law the
question Whether there was evidence led before the Sheriff-
substitute which could competently support his findings of fact?"
He did not aver that there was no evidence before the arbitrator
upon which he could proceed to a decision of the case. The Court
refused the note, holding that it was in effect a request for the
allowance of appeal upon a pure question of fact, upon which,
under the Act, the arbitrator was final. Nelson v. Allan Brothers
& Co. (United Kingdom), Limited, p. 1003.

Second Schedule (17) (b)—Remit to arbitrator for further statement of
fact-Power of arbitrator to hear further evidence.

38. In a case stated for appeal against the decision of a Sheriff-
substitute acting as arbitrator in proceedings under the Workmen's
Compensation Act, 1906, in the course of which proceedings proof
had been led, the Court remitted to the Sheriff-substitute to find
whether the workman had given statutory notice of his accident
as soon as practicable thereafter. The Sheriff-substitute reported
that he had himself re-examined the doctor who attended the
workman during his illness, and made a finding in answer to the
question put by the Court. This report was objected to on the
ground that it proceeded on evidence which had been taken after