SCHED. I. on expert evidence that a workman was fit for work, was not precluded from finding later on, on further evidence, that his previous conclusion was wrong. If the logic of the decisions had been wanted to be preserved it was simple. On evidence the arbitrator had found the man fit; therefore he was fit, legally. Six months later the man equally proved he was not. Therefore, if he had been legally fit six months previously, there had been a change of circumstances sufficient to justify a review (n). Probably in determining whether a matter settled in a previous hearing is res judicata or not this theoretical test may afford the best guide. A fact which an arbitrator could find and has found must be taken as final at the time when so found. But a finding as to a man's condition at one time, say in October, 1908, is not a finding as to a man's condition at another time, say in March, 1909. The issue then is a new one. "Aye or no, is the workman at the date of the application . . . wholly or partially incapacitated from work?" (per Cozens-Hardy) (o). That the evidence, especially the medical evidence, given at the second hearing may differ from that given at the first is not very material. At best, such evidence is mostly a matter of opinion, which opinion may well change on further developments of the case taking place. Where there is a right to review, the compensation will have to be re-assessed as at an original hearing, and change of circumstances may be in favour of or against either party. Thus, what a man has since been able to earn, as, for instance, as a publican (p), or in a baker's shop, will have to be taken into account (q), though fluctuation in wages since the accident may not be considered (r), nor loss of wage-earning capacity on account of age (s), nor (n) Sharman v. Holliday and (0) Mead v. Lockhart, p. 400. S. L. R. 30. (q) Norman and Burt v. Walder, (1904) 2 K. B. 27. (r) James v. Ocean Coal Co., (1904) 2 K. B. 213. (s) Jamieson v. Fife Coal Co., 5 F. 958. But not so if the man has recovered from his injuries, and his incapacity is due to advancing years alone: Ferrier v. Gourlay, 4 F. 711. defective medical treatment (t), nor yet refusal to submit to a SCHED. I. Par. (16). surgical operation (u), provided such refusal is reasonable (r). Review. We have seen the Courts have suggested that where workmen who have been injured have been taken back at their old rate of wages, their compensation may well be assessed at a penny a week, with a right to have it reviewed when there is any change in the conditions of their employment (). If no such award be made and the compensation be simply ended, then, on recrudescence of the injury, no further review is possible (z). So when an apprentice at the time of his accident was earning 78. a week, and was awarded 3s. 6d. a week compensation, it was held his master was entitled to have the amount reviewed on his proving he was employed with them as a labourer at 11s. 2d. (a). Now, it will be observed that an infant has a right, at any time. after compensation has been paid him for over twelve months, to apply for an increase of it, based on what he might have been earning but for the accident (b), nor limited by what he would have been earning in a similar occupation to the one he was engaged in when injured, e.g., as a labourer, when he had been brought up as a stove-grate fitter (c). As regards the qualification in Clarke v. Gas Light and Coke Co. (d), that it is not enough to merely prove a man is able to do certain work without giving some evidence he is also able to get it, we have already fully discussed it under para. (3), to which the reader is referred. Again, a review may be agreed to by the parties themselves, when it will operate as a discharge of a former award. Thus, (t) Beadle v. Milton and others, 114 L. T. 550, C. C. (u) Rothwell v. Davies, 19 T. L. R. 423; Sweeney v. Pumpherston Oil Co., 5 F. 972. (x) Tutton v. Owners of S.S. "Majestic," 100 L. T. 644; Warncken v. Moreland, 100 L. T. 12. (y) Irons v. Davies, (1899) 2 Q. B. 330. (z) Nicholson v. Piper, (1907) A. C. 215. (a) Pomphrey v. The Southwark Press, (1901) 1 K. B. 86. (b) Edwards v. Alyn Steel Tin- (c) Evans v. Vickers, Son & SCHED. I. where a man had agreed to take a certain amount as compensation, and then, on being re-employed at his old rate of wages, had agreed to give up such compensation, it was held he was not entitled to fall back on the original agreement when, owing to work being given up, he was dismissed (e). In ordinary practice an order for review usually comes into force when made, but an arbitrator may, if he so determine, direct it to take effect from the date of application. When there has been a long interval between such application and the order this does not seem unreasonable (ƒ). Date from which review operates. No order can be made terminating an award at a future date (ƒƒ), and circumstances must be exceptional to permit of an order being made for a date prior to the application, and, as a rule, an arbitrator is not justified in making such order (g). But when there has been a formulated dispute, it would seem, "The County Court judgo has jurisdiction on such an application to go back to an earlier date, when from the first the only question between the parties was whether the incapacity had ceased, and when it had ceased" (per Buckley, L. J.) (h). Further, the practice is somewhat less exact when no memorandum of agreement has been recorded. Thus, on November 1, the respondents stopped payment on the ground the workman had recovered. The workman disputing this, on November 21, they applied for a review asking that the payments should be ended as from November 1. On January 29, after hearing the evidence, the arbitrator so ended the payments, and it was held he had decided correctly (i). Here point is made in the English cases that, by para. (9) (b) of Schedule I., it is open to an employer to resist the recording of the memorandum in its entirety, and that this is the course he (e) Bradbury v. Bedworth Coal Co., 2 W. C. Č. 138. (f) Morton v. Woodward, (1902) 2 K. B. 276. (f) Baker v. Sewell, (1910) 2 K. B. 673. (g) Upper Forest & Western Steel & Tinplate Co. v. Thomas, (1909) 2 K. B. 631; Donaldson Bros. v. Cowan, 46 S. L. R. 920. (h) Charing Cross, &c. Rly. v. Boots, (1909) 2 K. B. 640. (i) Southbrook Fireclay Co. v. Laughland, 45 S. L. R. 664. Par. (16). should pursue. If then the arbitrator still records it, the proper SCHED. I. course is to appeal against such order to record, and not apply simply for its review. Date from which review At the same time, if the order to record the memorandum exactly operates. states what has taken place, it need not necessarily be fatal to the employer's interests. Still, the employer's advisers in England, at any rate, should be careful to see, if made at all, it is made very precisely. Although it thus seems that in case of an actual dispute, especially if brought to an issue by the respondents refusing to pay further compensation, it may be open on review for an arbitrator to terminate the payment as from such prior date, yet it is by no means certain he will do so, and, certainly, whenever there is a recorded agreement, the wise and proper course is, directly their proposal to end payment of compensation is challenged, to at once apply for a review. The proper way to end one order of the Court is to apply for another. Of course, the terms of the agreement, recorded or unrecorded, must be regarded. From its very terms it may work itself out without an application to the Court. If the agreement is to pay during incapacity, the agreement ceases to be operative when the incapacity ends. If the incapacity has, in fact, ended, a workman has no right to enforce the agreement by execution, or in any other way, and subject to the precise terms of the agreement would, in case of dispute as to such incapacity being ended or not, be prevented from issuing execution until the dispute was determined (j). Compounding weekly payments. (17) Where any weekly payment has been continued for not less than six months, the liability therefor may, on application by or on behalf of the employer, be redeemed by the payment of a lump sum of such an amount as, where the incapacity is permanent, would, (j) Ibrahim Said v. Welsford, 3 B. W. C. C. 233. SCHED. I. Para. (17). if invested in the purchase of an immediate life annuity from the National Debt Commissioners through the Post Office Savings Bank (k) purchase an annuity for the workman equal to seventy-five per cent. of the annual value of the weekly payment, and as in any other case may be settled by arbitration under this Act, and such lump sum may be ordered by the committee or arbitrator or judge of the county court to be invested or otherwise applied for the benefit of the person entitled thereto: Provided that nothing in this paragraph shall be construed as preventing agreements being made for the redemption of a weekly payment by a lump sum. This paragraph is hardly a triumph of English. Its probable effect is (a) where incapacity is permanent the employer can redeem his liability with a lump sum fixed at seventy-five per cent. of the value of an annuity as stated, and neither more nor less; and (b) in any other case, i.e., where incapacity is not permanent, as may be settled by arbitration. In such cases it probably will be held the lump sum given cannot exceed that given for permanent incapacity, and thus an employer, knowing the most he may have to pay, can go to arbitration to have it assessed at less if possible. This view of the effect of this paragraph has practically been taken in the case of the National Telephone Co., Ltd. v. Smith (kk). Here, a workman lost his arm by accident. By memorandum of agreement duly recorded, his employers agreed to pay him 16s. a week during incapacity. After paying this for six months, they applied under this paragraph for redemption. The arbitrator would not enquire into the workman's capacity. He simply regarded the question as one of arithmetic, and calculated the weekly payment on the footing of permanent incapacity under the first branch of this paragraph. On appeal (k) For rate, see Appendix D. (kk) 46 S. L. R. 988. |