CHARLES FREELAND, Appellant.-Moncrieff, K.C.-Fenton. SUMMERLEE IRON COMPANY, LIMITED, Respondents.-Munro, K.C. Carmont. No. 158. July 5, 1912. Workmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), sec. 1 (3)—Act Freeland v. of Sederunt, 26th June 1907, (2)-Arbitration-Competency-"Question" Summerlee Iron Co., as to duration of compensation. Limited. The employers of a workman who had been totally incapacitated by an accident admitted liability under the Workmen's Compensation Act, tendered the amount of compensation due (as to which there was no dispute), and requested the workman to sign a receipt which contained this clause "At the first or any subsequent payment liability is admitted only for the compensation to date of payment. Further liability, if any, will be determined week by week when application for payment is made." The workman objected to this clause on the ground that he was entitled to have an unqualified admission of liability, refused to sign the receipt, and initiated arbitration proceedings. The employers maintained that the arbitration was incompetent as no question had arisen between the parties. Held that there was a question between the parties as to the duration of the compensation which had not been settled by agreement, and, accordingly, that the arbitration was competent. Lanarkshire. In an application for arbitration under the Workmen's Compensation 20 DIVISION. Act, 1906, at the instance of Charles Freeland, miner, Larkhall, against Sheriff of The Summerlee Iron Company, Limited, coalmasters, Larkhall, the Sheriff-substitute of Lanarkshire at Hamilton (Shennan), dismissed the application, and at the request of the workman stated a case for appeal. The case set forth : "This is an arbitration under the Workmen's Compensation Act, 1906, in an application by the appellant to recover compensation in respect of injuries sustained by him through an accident to his right eye in the course of his employment with the respondents as a miner in their Summerlee Colliery at Larkhall. "I heard parties' procurators on the 30th January 1912, when the following facts were admitted:-(1) The accident occurred on 13th December 1911, and it arose out of and in the course of the appellant's employment with the respondents as a miner. The appellant has been totally incapacitated since said date. (2) The respondents are liable to pay the appellant compensation at the rate of 14s. 9d. per week in respect of total incapacity. (3) On 29th December 1911 the respondents admitted liability and tendered payment of the compensation then due. They requested the appellant to sign a receipt therefor, but the appellant objected to the terms of the receipt and refused to sign it. (4) The part of the receipt to which the appellant objected was contained in a note printed above the columns provided for a record of the dates and the amounts paid week by week. The part of the note objected to was the following:-'At the first or any subsequent payment liability is admitted only for the compensation to date of payment. Further liability, if any, will be determined week by week when application for payment is made.' Copy of the form of receipt is given in the appendix hereto. The appellant objected to the form of the receipt on the ground that he was entitled to have from the respondents a simple and July 5, 1912. unqualified admission of liability, such as he could embody in a memorandum of agreement for the purpose of recording. He therefore invoked arbitration on the ground that a question had arisen as to the duration of the compensation." Freeland v. Summerlee Iron Co., Limited. The Sheriff-substitute was of opinion that no question had arisen between the parties which fell to be settled by arbitration, and, accordingly, he dismissed the application. The questions of law for the opinion of the Court were:-" 1. Do the foregoing facts disclose any question between the parties on which arbitration can competently be invoked? 2. Was the Sheriff-substi tute right in dismissing the appellant's application for arbitration?" The case was heard before the Second Division (without Lord Dundas) on 5th July 1912. Argued for the appellant;-There was a question between the parties which fell to be settled by arbitration, since it had not been settled by agreement. This dispute was as to the duration of compensation. The employers had made an offer which in effect meant that the workman would get compensation, not during incapacity, as was his right, but only so long as the employers thought he was incapacitated. This offer was not one which the workman was bound to accept, for it would give him less than he was entitled to under the Act. Under the Act the employers were bound to continue paying compensation till an application for review had been presented, whereas in the present case the employers were frankly seeking to place themselves in the position of being able to stop the compensation at their own hand. An agreement to pay compensation which introduced conditions other than those contained in the statute could not be recorded. If, then, there was any agreement at all, it was not a recordable agreement, and the workman was entitled to apply for an award, since in one way or the other he was entitled to have the means of enforcing his claim to compensation.* Argued for the respondents;-It was common ground that the workman was entitled to compensation only so long as his incapacity lasted, and it followed that his employers were entitled to stop paying as soon as he had recovered. So far as his present condition was concerned-which was all that could be considered in the meantime -there was no question between the parties either as to his right to compensation or as to the amount of it; and accordingly arbitration was excluded." If and when the employers stopped payment, a question might arise as to the duration of the compensation, but that was a future and hypothetical question, and all that arbitration was provided for was an existing question. No such question was to be found here, for the employers and the workman were agreed on all the essential points, and a memorandum of this agreement, even 1 Workmen's Compensation Act, 1906, First Schedule (1) (b). 2 Donaldson Brothers v. Cowan, 1909 S. C. 1292, per Lord President Dunedin, at pp. 1297, 1298. 8 M'Ewan v. William Baird & Co., Limited, 1910 S. C. 436, per Lord Kinnear, at p. 442. 4 Hunter v. John Brown & Co., Limited, supra, p. 996. 5 Allan v. Thomas Sprowart & Co., Limited, (1906) 8 F. 811. 6 Workmen's Compensation Act, 1906, sec. 1 (3); Act of Sederunt, June 26, 1907, (2); Gourlay Brothers & Co., Limited, v. Sweeney, (1906) 8 F. 965; Field v. Longden & Sons, Limited, [1902] 1 K. B. 47. though there might be a qualification as to the future, could have July 5, 1912. been recorded.1 LORD JUSTICE-CLERK.-The case stands in this position. The appellant met with an accident and has been totally incapacited since its date, and the respondents are liable to pay him 14s. 9d. per week in respect of total incapacity. These are facts found about which there is no dispute. On 29th December the respondents admitted liability, and tendered payment of the compensation then due,-that is to say, they admitted to the injured man that they were liable and tendered the payment which was due up to that date. They requested the appellant to sign a receipt therefor, but the appellant objected to the terms of the receipt, and refused to sign it, In these circumstances, the question is-were the parties in agreement so that a memorandum of agreement could be registered? In my opinion they were not. The appellant comes forward and says that, as there is no agreement of which he can make use for the purpose of enforcing his claim, he has the right to raise an arbitration in the ordinary way, a question having arisen as to the duration of the compensation. I can see no ground whatever for excluding him from that. He is perfectly entitled to proceed by arbitration, as I am satisfied that there has been no agreement made between the parties which he is entitled to register. LORD SALVESEN.-I am of the same opinion. A workman who is injured in the course of his employment is entitled, by the Workmen's Compensation Act, to present an application to an arbitrator to determine whether he is entitled to compensation under the Act, and the amount of that compensation. If the employers admit liability, then we have held that he is not entitled to put them to the expense of such an application. But the admission must be an unqualified one, and not a qualified admission which would debar him from the right of going to the Sheriff-clerk with a memorandum of his agreement and getting it registered, so as to be able to charge upon it. It is said that he may record a qualified agreement if it has been come to. I do not doubt that he can, but a qualified agreement will not give him the rights that he possesses either under an unqualified agreement or under an award which he has obtained from the arbitrator. The respondents here made no secret of the fact that they desired, by the qualification which they put into this receipt which they wished the man to sign, to invert the position of the workman and put him in petitorio when he partially recovered from his accident, instead of being themselves in the position of having to pay him compensation until they presented an application to have his compensation diminished or ended. It is obvious, therefore, that there is here a very substantial question, and one which is of interest to both employers and employed, but it is not a question that appears to me to be attended with any difficulty. One could conceive of difficulty arising if there had been payments made and 1 M'Lean v. Allan Line Steamship Co., Limited, supra, p. 256. Freeland v. Freeland v. July 5, 1912. accepted; but in the present case we were informed, without contradiction, that the employers refused to make any payments except upon the terms of the receipt, which qualified their obligation, putting them in the position of being able to terminate the compensation when they judged the workman to be partially or wholly recovered, whereas the Act gives the Lord Salvesen. workman the right, after his position has been formulated either by an unconditional agreement or by an award, to have his compensation continuously paid until the employer presents his application for review. I think here the employers were quite wrong. There was a question between the parties as to the duration of the compensation which had not been settled by agreement. Therefore the workman was entitled to proceed by way of arbitration, and is not excluded by the admissions of the employer as regards two only of the three points on which there must be agreement if arbitration is to be excluded. LORD GUTHRIE.—I agree. It is common ground that in a sense there is a question between the parties, but the Sheriff-substitute seems to have held that the only question that the workman raised was so frivolous that it could not be dealt with as a question in any real or substantial sense. It seems to me, agreeing with your Lordships, that the question raised between the parties is a very substantial question. It is perfectly natural that the employers should seek by such a receipt as we have before us to bring about a very favourable state of matters for them, namely, that they should be entitled, whenever they think a workman has recovered, to stop payment, putting it upon the workman then to take arbitration proceedings, which might be very lengthy before any decree was given. On the other hand, it is equally clear that the workman has a very substantial motive for getting an agreement which could not only be recorded but on which he could charge, so that his compensation should run on until the employer had to take proceedings to end or alter it. The result is that if there was a substantial question then the parties are agreed that it cannot be held that there was an agreement, and agreeing as I do with your Lordships that there was a substantial question, I think the only course open to the workman, in the absence of agreement, was to take proceedings for arbitration. THE COURT answered the first question of law in the affirmative, and the second in the negative, and remitted to the arbitrator to proceed. SIMPSON & MARWICK, W.S.-W. & J. BURNESS, W.S.-Agents. No. 159. ROBERT WALKER, Pursuer (Appellant).-Fenton. JOHN JAMES SMITH, Defender (Respondent).-D. Anderson. Poor's-Roll-Reporters equally divided in opinion-Appeal from Sheriff Walker v. Court. Where the reporters on probabilis causa reported to the Court that they were equally divided in opinion as to the admission to the poor's-roll of an applicant who desired to prosecute an appeal against two adverse judgments in the Sheriff Court, the two advocates being in favour of, and the two law agents against, the applicant's admission,— The Court refused the application. July 6, 1912. Smith. IN an action in the Sheriff Court at Perth at the instance of Robert 2D DIVISION. Sheriff of Walker, labourer, Perth, against John James Smith, baker, Pitlochry, Perth. the Sheriff-substitute (Sym) assoilzied the defender, and on appeal the Sheriff (Johnston) adhered. The pursuer appealed to the Court of Session, and presented an application for admission to the poor's-roll. This application having been remitted to the reporters on probabilis causa litigandi, they reported that they were equally divided in opinion as to whether the applicant had or had not a probabilis causa litigandi, and appended a note in which they stated: "Mr Thomson, Advocate, and Mr Boase, Advocate, are of opinion that the applicant has, while Mr Lorimer, W.S., and Mr Whyte, S.S.C., are of opinion that the applicant has not, a probabilis causa litigandi, and we respectfully crave your Lordships to dispose of the remit in the circumstances. We beg respectfully to refer your Lordships to the following cases:-Edgar v. Johnston, (1904) 6 F. 825; Ormond v. Henderson & Sons, (1897) 24 R. 399; Marshall v. North British Railway Company, (1881) 8 R. 939; Carr v. North British Railway Company, (1885) 13 R. 113; and Watson v. Callander Coal Company, (1888) 16 R. 111." The case was heard in the Single Bills of the Second Division (without Lord Guthrie) on 6th July 1912, when, in addition to the authorities noted by the reporters, the case of Clark v. Campbell,1 was cited. LORD JUSTICE-CLERK.-The difficulty in this case arises from the decision in Marshall v. North British Railway Company, where the Court admitted a person to the poor's-roll, although there was not a majority of the reporters in favour of her admission. But, when the facts of that case are examined, I think the difficulty disappears; for the report of the case shows that the applicant there was suing in the Supreme Court, and was not in the position of the applicant here of having two judgments standing against her by the Sheriff and his substitute. Now where, as here, the action is brought in the Sheriff Court and both the Sheriff-substitute and the Sheriff have decided against the party applying for the benefit of the poor's-roll, it is decided by Carr3 and Watson that the party is not entitled to be admitted to the roll. In the former case, |