1912 BEAUFORT v. INLAND REVENUE COMMIS not pay the landlord; he pays the sum over to the collectors of Inland Revenue because by law he must do so. The law gives him an acquittance and discharge as if he had paid (DUKE) the person to whom his rent was due and payable; but the underlying assumption is that he has not. The words "rent paid" in s. 20, sub-s. 2 (a), ought to be construed strictly and limited to the amount which actually reaches the landlord. Hamilton J. It is true that as between landlord and tenant rent may be paid by means of a set-off or other discharge as well as by actual payment in cash. But that is not this case. Here, there being no request to pay, there is nothing to set off. There is merely a statutory right to deduct. It cannot be said that the whole 3751. has been paid when in fact only 356l. 5s. has been paid. To that extent therefore the appeal succeeds, and instead of 3751. only 3561. 58. should have been brought into account. One point remains to be considered. In the year 1908 no super-tax was chargeable under the revenue legislation, but the parties have agreed to treat this question as if the tax had then been chargeable. The question is whether, assuming that the appellant is a person liable to pay super-tax, some allowance ought to be made out of the sum of 3561. 58. by reason of that tax. The last paragraph of the special case dispenses with inquiry as to the amount and mode of calculation, and I have only to decide whether the claim to an allowance is well founded. The appellant contends that mineral rights duty is a charge upon a person in respect of rent or royalties of which he is he proprietor; that the Crown in collecting the tax from the lessee intervenes between the lessee and the mineral owner and takes what is called its share of the profit of working the minerals, leaving the balance only to be paid to the mineral owner; that the Legislature cannot have intended that the mineral owner should be liable to pay tax upon that portion of the profits which has never come to him and of which he never was the proprietor, but which was from the beginning the property of the Crown. He is content to be taxed upon his total income from all sources, but not upon an amount which represents the Crown's share of the proceeds of the enterprise which in fact the revenue has already received. I cannot accept this argument. Mineral rights duty is not a duty of SIONERS. (DUKE) v. INLAND REVENUE SIONERS. 1912 income tax. It is one of a separate group or class of duties BEAUFORT charged upon various interests in or advantages derived from real estate and not necessarily dependent upon profits. It is charged on the rental value of the right to work minerals; the COMMIS- method of ascertaining the rental value is rigidly prescribed by sub-s. 2 (a), and excludes allowance or abatement in view of any Hamilton J. overlapping provisions of other taxing enactments. From the character of the duty itself it seems clear that no diminution is allowable of the sum actually paid by the working lessee in the last working year. Upon the main question the appeal fails, but it succeeds upon the minor point. The assessment must be reduced to 356l. 5s. and the mineral rights duty to 17l. 168. 3d. Assessment amended. Solicitors for appellant: Williams & James. W. H. G. C. A. 1912 March 15. [IN THE COURT OF APPEAL.] HIGGINS v. POULSON. Employer and Workman-Injury by Accident-Compensation-Weekly Payment In all ordinary cases under the Workmen's Compensation Act, 1906, where a workman has sustained an injury by accident arising out of and in the course of his employment, resulting in his total incapacity for the time being, and entitling him to a weekly payment by way of compensation, the arbitrator ought to make his award in accordance with Form 24 in the Appendix to the Workmen's Compensation Rules, 1907, ordering the weekly payments to continue during the total or partial incapacity of the claimant for work, or until the payments shall be ended, diminished, increased, or redeemed in accordance with the Act. Form 24 is intra vires and entirely consistent with the policy of the Act. APPEAL from an award of the judge of the Lancaster County Court, sitting at Liverpool, as arbitrator upon an arbitration under the Workmen's Compensation Act, 1906. C. A. 1912 POULSON. The applicant was injured by an accident arising out of and in the course of his employment by the respondents, and was at the time thereby totally incapacitated for work. The respondents HIGGINS admitted their liability and were willing to submit to an award of 10s. per week during total incapacity, the amount of any payment in respect of subsequent partial incapacity to be settled thereafter. The applicant was willing to accept the sum of 10s. a week, but contended that the award should be made in the ordinary form as given in Form 24 in the Appendix to the Workmen's Compensation Rules, 1907. The county court judge made his award in accordance with Form 24, ordering the weekly payment "to continue during the total or partial incapacity" of the workman "for work, or until the same shall be ended, diminished, increased or redeemed, in accordance with the provisions of the above-mentioned Act." From this award the employers appealed. Segar, for the appellants. The county court judge was wrong in making the award in terms which embraced the period of partial incapacity. The award in that form is ultra vires: Sched. I. 1 (b). It is an inadmissible form of award. There is clearly a discretion in the county court judge to make an award in the form suggested by the appellants. F. E. Bodel, for the respondent, was not called upon. COZENS-HARDY M.R. This is an important appeal if there were any foundation for it, but having regard to the scheme of the Act I feel no doubt that Form 24 is consistent with the policy of the Act, and in ordinary circumstances is the most consistent, if not the only consistent, form. Observe what the scheme of the Act is. The workman has to make out, in the first instance, that there has been an accident arising out of and in the course of his employment, and the arbitrator, the county court judge in most cases, has to decide what within the limits of the Act is the amount of compensation, the weekly payment, the workman is entitled to, and he makes the order accordingly. But the Act contemplates, what is sufficiently obvious, that an award, which was quite right at the time when it was made, may, C. A. 1912 HIGGINS v. POULSON. Cozens-Hardy by reason of change of circumstances, become improper. This Court has held more than once that under the review section, par. 16 of Sched. I. of the Act of 1906, there must be a change of circumstances in order to bring the right to review into play. Who is the person who is to review? Paragraph 16 seems to me to be express: "Any weekly payment may be reviewed at the request either of the employer or of the workman, and on such review may be ended, diminished, or increased, subject to the maximum above provided, and the amount of payment shall, in default of agreement, be settled by arbitration under this Act." That says quite plainly that, although there is a right to review, it is a right to review at the request of one party or the other. If the employer desires to review, the onus is upon him to satisfy the Court that there has been a change of circumstances which entitles him to obtain the review which he asks for. If, as not infrequently happens, the workman says there is a change of circumstances, and that which was formerly mere speculation into the future, and, therefore, could not be acted upon, has now been proved by experiment, by the test of actual facts, to be correct, he can apply to review and have the compensation increased within the limits of the Act. But I cannot read par. 16 of Sched. I. in any other way than as implying, nay, asserting, that the compensation which has been awarded can only be reviewed and altered by a person who takes upon himself the onus of establishing a change of circumstances, and, consequently, the right to review. Another provision of the Act, it seems to me, affords an argument almost as irresistible—I refer to the provision that an award may be enforced as a county court judgment. How can it possibly be so enforced if we lend any assent to the argument which we have heard, namely, that the award ought only to be, say, 10s. a week during the total incapacity and to cease ipso facto unless it can be established that the total incapacity continues; or, in other words, that the right to levy an execution can be determined at once by a refusal of the employer to make the payment, necessitating an application by the workman to have the amount ascertained. Form 24, which has been adopted, certainly in 999 out of every 1000 cases that have come before us, seems to be entirely in accordance with the spirit and sense of the Act. on the day of day of It is an award of "compensation for personal injury caused to FLETCHER MOULTON L.J. I agree entirely with the judgment of the Master of the Rolls, and also with the very able and thoughtful judgment of his Honour Judge Thomas which has been before us. I will only add a very few words in order to make it quite clear that the decision in this case turns on no special circumstances, but upon the general policy and provisions of the Act. In this case the original incapacity was so evident that the employers expressed their willingness to pay the amount that has been awarded during total incapacity, leaving the amount to be paid when total incapacity had ceased, and probably had been succeeded by partial incapacity, to be settled when the occasion had arrived. The workman refused to accept this and C. A. 1912 HIGGINS v. POULSON. Cozens-Hardy |