Ball v William Hunt & Sons Ltd

Lorp Macnacutren. My Lords, I am unable to agree in the
conclusion at which the Court of Appeal has arrived, and I must
add with all respect that the process by which the learned judges
who formed the majority of the Court arrived at that conclusion
has not been regarded with much favour in this House.

Both the Master of the Rolls and Buckley L.J. turn to the
First Schedule. Finding there the expression "total or partial
incapacity for work" they hold that it is an answer to the
present claim to say that the claimant's physical condition is
just what it was before the accident happened, and that his
dexterity and capacity for manual labour are as good as ever.
'"' Incapacity for work "' they take to be the same as " incapacity
to work."' In fact one of the learned judges treats the two
expressions as synonymous and uses them as convertible terms.
Now "incapacity for work" as the phrase is used in the
schedule seems to me to be a compendious expression meaning
inability to earn wages or full wages as the case may be
at the work in which the injured workman was employed at
the time of the accident. But whether that be so or not, it is
laid down most distinctly in this House (Lysons v. Andrew
Knowles ¢ Sons, Ld. (2)) that you must not resort to the
schedule for the purpose of cutting down the right to compen-
sation. The right to compensation is given by the Act. The
Act is the workmen's charter. The schedule prescribes the
scale of compensation and the mode and conditions of its enjoy-
ment. That is the office of the schedule. The key to the
meaning of the Legislature is not to be looked for there.

(1) [1911] 1 K. B. 1009. (2) [1901] A. O. 79.

A.C. AND PRIVY COUNCIL.

As Lord Halsbury observed in the case I have just mentioned,
"the first thing one has to do is to apply one's mind to what is
the substantive intention and meaning of the statute." It seems
to me that the injury for which the statute gives compensation
is not mutilation or disfigurement or loss of physical power, but
loss or diminution of the capacity to earn wages in the employ-
ment in which the injured workman was engaged at the time of
the accident. At that time this man was earning 20s. a week as
an edge tool moulder. That is what he was worth then. What
is he worth now? As he is now no one will take him on at that
work. Hverybody would say offhand two eyes are better than one
for such a job as that. So he is heavily handicapped in seeking
employment. This disadvantage or disqualification, whatever
you choose to call it, has resulted from the accident. It is (to
use another expression to be found in the Act) 'due to the
accident."

{t seems to me therefore that this workman is entitled to
claim compensation under the Act. With the amount of com-
pensation, if compensation be awarded, we have nothing to do.
That is a matter for the arbitrator or the county court judge.

I agree that the appeal should be allowed and the case remitted
to the proper tribunal.

Lorp Arxinson. My Lords, in this case the workman, through
an accident arising out of and in the course of his employment,
lost his eye. It was a blind eye, no doubt; but it is impossible to
contend, I think, that the loss of even a blind eye is not an injury
within the meaning of s. 1, sub-s. 1, of the Workmen's Compensa-
tion Act of 1906. His employer was therefore lable to pay him
compensation under the provisions of that section. That is the
workman's absolute right. Before the accident he was, though
blind of one eye, physically able to do the work he was then
doing, and is still able to do work of that kind. There was a
market for his labour then because his blindness was not
observable. There is no market for his labour now because his
blindness is observable. The recent accident has destroyed his
market, though it has left his physical ability to work what it
was before.

A. C. 1912. 3 21

501

H. L. (E.)
1912

—
BALL
%
WILLIAM
Hunt &
Sons,
LIMITED.

Lord
Macnaghten,

502

H. L, (E.)
1912

—_——
BALL
OP
WILLIAM
Hunt &
Sons,
LIMITED.

Lord Atkinson

HOUgE OF LORDS [1912]

Before the later accident he was not suffering under any
incapacity whatever. He was able to work and able to get
employment, and I cannot see how the words "antecedent
incapacity' apply to the appellant's case. Though the first
section of the statute plainly confers upon an injured workman
the right, in cases coming within it, to obtain compensation, it
does not fix the amount of compensation, or indicate the principle
upon which the compensation is to be measured ; that is the func-
tion of the schedule, but it is its only function. The employer
is by s. 1, as he was by s. 1 of the Workmen's Compensation Act
of 1897, made liable to pay compensation "in accordance with
the schedule," elastic words importing in themselves a degree of
latitude which it is difficult to define: Thomas v. Kelly. (1)

The argument for the respondents resolves itself into this: as
paragraph 1 of the schedule only provides for the payment of
compensation in two cases—(a) where the death of the workman
results from the injury, and (b) where total or partial incapacity
for work results from it—the workman in the present case cannot
get any compensation because he is as able physically to do his
work as he ever was, though no one will employ him to do it.
In other words, that in construing the words 'incapacity for
work," used in the schedule, the absence of a market for the work-
man's labour, though due, not to the state of the labour market
nor to fluctuations of trade, but to some defect personal to himself
caused by the injury he has received which renders his labour
unsaleable, is to be entirely left out of consideration. His power
of earning wages may be completely gone, yet for the loss of that
power, directly resulting from the disfigurement caused by the
accident, he is not to receive any compensation. Such a con-
struction as this, it would appear to me, cuts down the right
expressly conferred upon the workman by the statute. It
involves a repeal pro tanto of s. 1.

The question whether a schedule such as this can legitimately
be construed in such a way as to cut down the right conferred by
the statute was considered in your Lordships' House in the case of
Lysons vy. Andrew Knowles & Sons, Ld.(2) In that case Lysons,
the workman, a miner, entered the respondents' employment on

(1) (1888) 13 App. Cas. 506, at p. 511. (2) [1901] A. ©. 79.

A.C. AND PRIVY COUNCIL.

a Tuesday, on which day in each week the miners' week in the
respondents' colliery ended. He worked piecework on that day
and on the Thursday following, earning 6s. each day. He was
then injured by an accident, giving a right to compensation under
the first section of the Act of 1897, which is practically identical
with the first section of the present Act.

The county court judge held that the workman had earned
12s. during one week, and that he was therefore entitled, under
paragraph 1 (b) of the schedule to that Act, to 50 per cent. of his
average weekly earnings, i.e., 50 per cent. of 12s., or 6s. per week
for every week during which his disablement lasted after the
last fortnight. The words of the clause are "not exceeding 50
per cent. of his average weekly earnings during the previous
twelve months.' The Court of Appeal held that Lysons was not
entitled to any compensation, as he had not been employed for
over two weeks. This construction plainly cut down the right
conferred upon the workman by the statute, and was for that
very reason disapproved of and rejected in this House. At
p- 85 of the report Lord Halsbury, then Lord Chancellor, is
reported to have said: " The first thing, I think, one has to dois
to apply one's mind to what is the substantive intention and
meaning of this statute. Does it mean that every workman, who
is employed in one of the prescribed trades, shall be (subject to
certain conditions not relevant to the matter now in debate)
entitled to compensation? Or does it mean that only workmen
shall be entitled to compensation in respect of whom it is possible
to say that the periods of their employment and the mode in
which they are to be paid will render it possible to establish an
average weekly payment, so that anybody who comes outside that
category is not entitled to any compensation at all? My Lords,
for my own part I cannot entertain a doubt that the Legislature
did mean that every workman in the prescribed trades should be
entitled to compensation, and I think that is the language which
one would naturally expect to have been used by the Legislature
if that was the meaning of the enactment. But now it is said
that the language of the enactment is that the employer is to ' be
liable to pay compensation in accordance with the First Schedule

of this Act.' It is to be observed that even upon that language it
3 2L 2

503

Ha. (E)
1912

_—_———
BALL
V%
WILLIAM
Hunt &
SONS,
LIMITED.

Lord Atkinson.

—_—

504

H. L. (E.)
1912

—ae
BALL
Vv.
WILLIAM
Hunt &
Sons,
LIMITED.

Lord Atkinson.

HOUSE OF LORDS [1912]

is not such compensation as is enacted in the schedule, but 'in
accordance with the First Schedule to this Act'; and when we
look at the First Schedule of the Act we find that there are a variety
of provisions which are very intelligible indeed, if we take what
I say is the leading enactment, that every workmanis entitled to
compensation. But it is said: ifa workman is not employed for
at least two weeks, how can you average his earnings, or his
agreed earnings, by an ' average,' which, when you have only got
one term, is an impossible phrase? Well, my Lords, for my
own part, if I came to the conclusion that there had been no
mode by which the quantum should be fixed in the schedule,
I should still be of opinion that there was no repealing of
the right which had first been granted, but that by arbitra-
tion, or by some other means, which I think would be quite
within the powers of the Act, the compensation should be
ascertained ; because I do not look upon the provision made in
respect of the compensation as one which, either in language or
in the intention of the Legislature, was meant to cut down and
override the primary right given to every workman to compen-
sation, but I regard it as a mode of ascertaining what the quantum
was to be."

Lords Macnaghten, Davey, Shand, Robertson, and Lindley
gave judgment to the like effect, and Lord Brampton concurred.

On examining the schedule one plainly sees that what is to be
compensated for is not, as in ordinary actions of tort, the pain'
and suffering which the plaintiff has endured, or the disfigure-
ment of, or injury to, his body which has been inflicted upon him,
but the loss of the power to earn wages which has resulted from
the injury. In the case of the workman's death it is only those
dependants who are dependent wholly or in part upon those
earnings who are to receive any compensation, and the amount
of it is, subject to certain limits, measured by the amount of those
earnings in the employment in which he met with the accident
which caused his death. However great may be the pecuniary
loss the dependants sustain from the workman's death by reason
of the cessation on that event of a pension, or life annuity, or
income from property, they are not entitled to any compensation
under the Act in respect of this loss.

ASC: AND PRIVY COUNCIL.

The obvious meaning of paragraph 1 (b) of the schedule, when
read with paragraph 38, is that the higher scale is to be adopted
when the workman is not able to earn, anything, and that where
he does earn or is able to earn something in a suitable employ-
ment credit is to be allowed for this sum to the extent specified.
The words "or is able to earn" are most significant. They
point to the retention of the power to earn something in a suit-
able employment, and to the extent that this power is retained
or has returned, though he may not try to exercise it, he does
not incur the particular kind of loss for which compensation is
to be given. Paragraph 16 of the schedule points in the same
direction. The weekly payment may be ended or diminished or
increased according, presumably, as the ability to earn has com-
pletely returned, has increased, or has diminished, There would
be no meaning, it would appear to me, in these provisions making
the amount of wages which were, are, or can be earned so much
the basis of compensation, if the market for the workman's
labour has to be left out of consideration. The earning of wages
depends as much on the demand for the workman's labour as
it does upon his physical ability to work. If because of his
apparent physical defects no one will employ him, however
efficient he may be in fact, he has lost the power to earn wages
as completely as if he was paralysed in every limb.

If it be then the paramount object of the Act to compensate
for the loss of the power to earn wages, the workman whom
because of the injury caused by an accident, nobody will employ,
comes within its purview as much as one who is rendered unable
to do any work at all.

I am unable to follow the line of reasoning based upon the
antecedent existence of the man's blindness. It was not apparent,
and, as the result shews, he got employment because it was not
apparent. The employers, possibly because they think the loss

of the workman's vision, which is' now obvious, will render him

more liable to accident, refuse to employ him.

It may well be that the words "incapacity for work" would
not, in their ordinary meaning, prima facie apply to a case such
as this, but it has been well established that in the construction
of a statute it is perfectly legitimate to give to some of its words

505

H. L. (B.)
1912
BALL

OF)

WILLIAM

Hunt &
Sons,
LIMITED.

Lord Atkinson,

506 HOUSE OF LORDS [1912]

H.L.(E.) a meaning different from their ordinary meaning where that is
1912 necessary to forward and effect the main purpose and object of
Bart the enactment.

eat I therefore concur that the matter should be remitted to the

Hunr& county court judge to ascertain the amount of compensation.

Pere!

ae Lorp Suaw or Dunrermirne. My Lords, I think this case is
an important one, but its material facts can be stated in a word.
About fifteen years ago the appellant, who is an edge tool
moulder, suffered an injury to his left eye, the ball of which was
penetrated by a steel chip. This accident resulted in the blindness
of that eye, but did not produce any disfigurement in the work-
man's appearance, which.remained unchanged. On September 7,
1910, however, the appellant, being engaged in cutting out
brickwork, was struck in the same eye by a piece of brick. The
result of this accident was that the eye had to be removed. A
marked disfigurement has consequently resulted from the mutila-
tion.. With regard to his power to do work, it remains as before ;
but with regard to his power to get work, that appears to have
been lost, or at least diminished, and, up to the time of the trial,
notwithstanding frequent applications in various quarters, he has
been refused employment on account of the disfigurement above
referred to.

The case depends upon the construction of certain frequently
quoted words in the Workmen's Compensation Act of 1906. The
first passage referred to is s. 1, sub-s.1: "If in any employment
personal injury by accident arising out of and in the course of
the employment is caused to a workman, his employer shall,
subject as hereinafter mentioned, be liable to pay compensation
in accordance with the First Schedule of this Act." It is
admitted that the appellant did sustain a personal injury by
accident arising out of and in the course of his employment;
and, so far as this sub-section is concerned, the language of the
Act would seem to cover his case.

It is, however, the words of Sched. I. that have caused
difficulty and difference of opinion. The material words of that
schedule are as follows: "Schedule I. (1.) The amount of com-
pensation under this Act shall be . . . . (b) where total or partial

A.C. AND PRIVY COUNCIL.

507

incapacity for work results from the injury, a weekly payment H. 1. (BE)

during the incapacity not exceeding 50 per cent. of his average
weekly earnings," &c. It is said, on the one hand, that
incapacity for work has not resulted from the latest injury,
because he can do work as well now as before. On the other
hand, so far as the practical result to the workman is concerned,

1912

BALL

Xv,
WILLIAM
Hunt &
SONS,
LIMITED,

this would seem to avail him little, if, by the injury, he has been: ,,.4 shaw of
so disfigured that, while he could do the work if he obtained it, P™'™"™*

he, nevertheless, cannot get employment, and, so far as compensa-
tion to him is concerned, from all practical points of view, he
equally suffers by reason of the accident, whether the accident
has prevented him from doing work or from getting it. In one
view ''incapacity for work,' which*is the language used in
clause (b), might not be held to include the case of his being
rendered ineligible for employment; whereas many cases occur to
the mind, and illustrations have been given in the judgment of
Fletcher Moulton L.J., which shew that, as matter of common
experience, the capacity for work may remain quite unimpaired,
although the eligibility as an employee may be diminished or
lost. If a butler is burned by the explosion of a lamp, his
appearance may be such, after his recovery, as to prevent him
from obtaining a situation as a butler, and he may find himself
out of all kinds of employment. In domestic service or in
business, particularly shop business, or in cases like those of
commercial travellers, the instances might be repeated without
limit in which the workman or workwoman would be forced into
the ranks of the unemployed by an accident of the kind figured,
although in each of these instances, if employers or society would
only have disregarded appearances, the workman's real capacity
would have been found the same as before.

Admitting the difficulties, I think that not a little help in their
solution arises from this consideration, that when compensation
for injury is being treated of by the statute, the theory and
datum upon which such compensation proceeds is that of compen-
gation for injury to the worker as a wage-earner, and it is the
incapacity to earn a wage which forms the standard upon which
the compensation is reckoned. A good illustration is found in
par. 8 of the schedule, which says that: '' ... . in the case of

508

H. L. (BE,
1912

—
BALL
v.
WILLIAM
Hunt &
Sons,
LIMITED.

Lord Shaw of
Dunfermline,

HOUSE OF LORDS [1912]

partial incapacity the weekly payment shall in no case exceed
the difference between the amount of the average weekly earnings
of the workman before the accident and the average weekly
amount which he is earning or is able to earn in some suitable
employment or business after the accident, but shall bear such
relation to the amount of that difference as under the circum-
stances of the case may appear proper."' In the present case, as
in those other illustrations to which I have ventured to refer,
the workman is neither earning, nor is he able to earn, anything
after the accident, and at least he may have to be turned on
to a less remunerative position. In the latter case, it is quite
clear that the data have been reached under the statute for the
estimate of compensation, namely, the difference between his
former and his later wage—that difference having been brought
about by reason of personal injury by accident arising out of and
in the course of his employment. In these circumstances, I
incline to the opinion that the true meaning of the statute is
that "incapacity for work''—the term employed—does include the
case of his eligibility to obtain work being diminished or lost, or,
in other words, of his capacity to get work being impaired or
destroyed. In the case before us, this arose from the mutilation
and disfigurement which he suffered by reason of the accident in
September, 1910.

My Lords, it is necessary to keep clearly in view in such cases
the distinction between inability to obtain work arising as the
result of the injured or disfigured condition of the workman and
inability to obtain work arising from the state of the labour
market. It does not appear to me to be any part of the scheme
of the statute to make the employer responsible for a non-
employment which is owing to general economic causes. The
non-employment, as I say, must be connected with the injury
which has been received and with the incapacity for work which
has been thereby produced. Even treating that incapacity as
inclusive of the case of the impossibility or improbability of
obtaining work, as well as of doing it, that impossibility or
improbability must be traceable to the thing which has differen-
tiated this workman from his other able-bodied comrades, namely,
the injury received. If, for instance, one of the probabilities were

A.C. AND PRIVY COUNCIL.

that, at the first appearance of scarcity in the demand for labour, a
workman in his injured condition would be the first to suffer,
that is simply one of those circumstances with regard to which
the county court judge as arbitrator would have to make his
best and most judicious estimate. He might, probably he would
in the majofity of cases, treat such a problematical consideration
as entering into his estimate in but a slender degree. But the
refinements in these cases have been so frequent that I desire
to say once for all that the entire results causally connected with
an injury ought to enter into the estimate, but that results
attributable to economic causes, such as the state of the labour
market, ought to be excluded therefrom.

IT am accordingly of opinion that the conclusion reached by the
learned Lord Justice Fletcher Moulton is preferable to that
reached by the majority of the Court of Appeal, and that this
class of case, namely, of persons suffering injuries which result
in their unemployment, should not be excluded from the scope of
the compensation payable under the Act.

My Lords, Il am glad to think that the general conclusions on
this subject which I have ventured to state are in accord with the
trend of the decided cases in England upon this subject. These
cases are already legion. But the question whether compensa-
tion is under the statute limited to an award in respect of physical
incapacity alone has of necessity, and owing to the circumstances
as presented to the Courts, been considered alongside of this other,
namely, whether an award once made, say in consequence of the
report by a medical referee, can be reviewed by reason of subsequent
experiments, and in particular of the experiment which the injured
man has himself made of placing his labour on the market, with
his experience of finding, or being unable to find, employment.

Upon this latter point the opinion of Lord Collins (then Master
of the Rolls) in Sharman v. Holliday & Greenwood, Ld.(1) has
been frequently referred to, and has been followed. 'There is
in the case of Cardiff Corporation vy. Hall (2) what, if I may
venture to say so, appears to me a most valuable summary
of the English case law upon this subject. These opinions I
respectfully adopt. In addition I would venture to quote two

(1) [1904] 1 K. B. 235 at p. 238. (2) [1911] 1 K. B. 1009, at p. 1015.

509

He, es
1912

——_
BALL
%,
WILLIAM
Hunt &
SONS,
LIMITED.

Lord Shaw of
Dunfermline.

WILLIAM
Hunt &
SONS,
LIMITED.

Lord Shaw of
Dunfermline.

HOUSE OF LORDS — £1912]

sentences from the late Master of the Rolls in Clark v. Gas
Light and Coke Co.(1) as also expressing my own view on this
subject. The learned judge there states the point thus: '"' The
contention was that the only question to be considered was as to
the physical condition of the applicant, and that when it was
once proved that his physical condition was such as to render
him capable of earning the same wages as before, there was an
end of the question. It was argued that the question whether
his opportunity of finding work from which he might earn the
same wages had been narrowed in consequence of the accident
ought not to be taken into consideration, the one and only
question being as to his physical capacity for work.'' Upon that
subject his view was as follows: "If the applicant was unable
in consequence of the accident to command the right of earning
wages, who was to suffer, he or his employers? In his opinion,
if the applicant, after repeated attempts, could not find an
opportunity of putting his diminished powers of working into
operation, he was justified in saying that his wage-earning
capacity was not the same as before."

In Radcliffe v. Pacific Steam Navigation Co.(2) the present
Master of the Rolls says: '' Although I think it is competent to
the county court judge to review an award similar to that which
was made in June, it is right to add that any such application
should be jealously scrutinized, and further, that great care must
be taken not to allow the fluctuations of the general labour
market to justify a review. But a workman is entitled to say
that, although the physical effects of an accident may have
disappeared or may be unaltered, yet he, as a damaged man, may
be more and more handicapped in the labour market as years
pass by. The unwillingness of masters to employ men suffering
from any infirmity has been greatly increased by the Workmen's
Compensation Act, and this is a circumstance which cannot be
disregarded." I refer also in particular, my Lords, to the judg-
ment of Buckley L.J., in which he dwells upon the distinction
between inability to obtain employment arising from the injury
and such inability arising from general economic conditions. To
that distinction I have already alluded.

(1) 21 Times L. R. 184. (2) [1910] 1 K. B. 685.

A. C. AND PRIVY COUNCIL.

I regret to observe, my Lords, the marked difference which has
arisen on this subject between the English and the Scottish
Courts. Upon the general question as to the treatment of the
worker under the statute from the point of view of a wage-earner
the opinion of Lord M'Laren in Clelland v. Singer Manu-
facturing Co.(1) may be referred to. "What," said he, "the
arbiter has to consider is not what the man is receiving, whether
under the. name of wages or charity, from his employer, but what
could the man earn in the open market after the accident had
happened as distinguished from what he actually earned in the
open market before the accident." And later expressions shew
in some points a near approximation to the views of the learned
judges in England. In Carlin v. Stephen d& Sons, Ld. (2) Lord
Salvesen analyses these English cases and says: "In my opinion
incapacity for the purposes of the Workmen's Compensation Act
is primarily physical incapacity, in which may well be included
such personal disfigurement as may lessen the sphere of employ-
ment, although the power to work remains as good as before. It
does not, in my opinion, include inability to get employment
which arises from something not personal to the workman." My
Lords, had the state of the Scotch decisions been in accord with
these sentences, a difference between them and the English cases
would have been far to seek.

In the case, however, of Boag v. Lochwood Colliertes, Ld. (8)
the question of what is the meaning of the statutory expression
"incapacity for work" was broadly and emphatically decided.
The case arose under the Workmen's Compensation Act, 1897,
but the language under construction and the point were the
same as in the subsequent Act. A workman averred that he was
entitled to have a weekly payment reviewed and increased "in
respect that his employers were unable to give him suitable light
work, and that he was unable to obtain light employment else-
where." It was held that these grounds were not relevant for
inquiry. The Lord Justice-Clerk said: 'As I read the Act of
Parliament and relative schedule the question to be decided in an
application to assess compensation, or under an application for

(1) (1905) 7 F. 975, at p. 983. (2) 1911 S. C. 901, at p. 907.
(3) 1910 S. C. 51.

511

H. L. (E.)
1912

——
BALL
wv,
WILLIAM
Hunt &
Sons,
LIMITED.

Lord Shaw of
Dunfermline.

512

H. L. (E.)
1912

——
BALL
as
WILLIAM
Hunt &
SONS,
LIMITED.

Lord Shaw of
Dunfermline.

HOUSE OF LORDS [1912]

review of weekly payments, is a question of the man's physical
capacity to work. Now, in this case it had been decided by
agreement that the workman was partially capable for work.
Is it any reason for reviewing the payment to say that the
employers cannot find him suitable work for his capacity, or
that he has not been able to find such work himself? If the
appellant means that his averments if proved would of them-
selves be a sufficient ground for saying that compensation must
be increased to the full allowance under the statute, I should
certainly not for myself yield for one moment to any such
demand. I take it that the whole question is that of ' capacity
to work,' which cannot be decided merely by the fact that
the workman has not got work, but only by such evidence as
satisfies the Court whether or not he is able to work." This is a
broad affirmance of the proposition that incapacity under the
Act must be limited to physical incapacity and to that alone.
So stated, I think the proposition—with which I have already
dealt at length in the earlier part of my opinion—to be an un-
sound proposition, and the decision of Boag (1) to be erroneous.
On June 28, 1911, the First Division pronounced a decision in
the same sense in the case of Macdonald or Duris v. Wilsons and
Clyde Coal Co.(2) The case, however, following Boag (1) as it
did, was treated as being governed by that decision. It follows
that, in my view, that case has also been erroneously decided.

I humbly think, accordingly, that the decision of the Court
below should be reversed, and that the case should be remitted
for adjudication by the arbitrator as to the amount of compensa-
tion to be awarded to the appellant.

Decision of the Court of Appeal reversed and case
renutted to arbitrator.

Lords' Journals, May 18, 1912.