smith v. petrie [1913] ScotLR 749 (20 May 1913)

smith v. petrie [1913] ScotLR 749 (20 May 1913)

The arbiter must pronounce a finding as to whether the workman's wage-earning capacity is nil, or if not, determine the amount of compensation. Recording the memorandum as wholly operative without such a finding is improper. If wage-earning capacity is not nil, compensation must be fixed accordingly.

Citation
[1913] ScotLR 749
Parties
Appellant: John Smith; Respondent: David Petrie
Jurisdiction
Scotland
Judgment Date
20 May 1913
Procedural Posture
Appeal From Arbitration Under Workmen's Compensation Act 1906 / Post Arbitration Appeal, Remitted to Sheriff Substitute, Final Dismissal
Outcome
Appeal dismissed by consent after finding that workman's earning capacity was nil.
Legal Topics
Workmen's Compensation, Master and Servant, Incapacity, Memorandum Recording, Onus of Proof
Employment Law Compensation Law Workmen's Compensation Master and Servant Incapacity Memorandum Recording Onus of Proof

Case Brief

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Parties

John Smith

Appellant

David Petrie

Respondent

Procedural Posture

Appeal From Arbitration Under Workmen's Compensation Act 1906 / Post Arbitration Appeal, Remitted to Sheriff Substitute, Final Dismissal

Legal Issues

  1. 1 Whether the arbiter was justified in dismissing the employer's application for review and allowing the memorandum to be recorded
  2. 2 Whether total incapacity had ceased and the agreement was spent
  3. 3 Whether the onus shifted to the workman to prove partial incapacity

Ratio Decidendi

The arbiter must pronounce a finding as to whether the workman's wage-earning capacity is nil, or if not, determine the amount of compensation. Recording the memorandum as wholly operative without such a finding is improper. If wage-earning capacity is not nil, compensation must be fixed accordingly.

Court Disposition

Appeal dismissed by consent after finding that workman's earning capacity was nil.

Orders

  • Remitted to Sheriff-Substitute to pronounce finding on wage-earning capacity and compensation.
  • Sheriff-Substitute found earning capacity nil; appeal dismissed and decerned.