Nicolson v. Piper - [1907] UKHL 620

No judgment structure available for this case.

Page: 620↓

House of Lords.

Tuesday, June 18. 1907.

(Before the Earl of Halsbury, Lords James of Hereford, Robertson, and Atkinson.)

45 SLR 620

Nicolson

v.

Piper.

Subject_Master and Servant — Workmen's Compensation Act 1897 (60 and 61 Vict. cap. 37) — Payment during Incapacity under Agreement — Cessation of Incapacity — Termination of Payment on Application for Review — Incapacity again Supervenes — Application for Review under Schedule 1 (12) — Competency.
Facts:

By an agreement duly recorded under the Workmen's Compensation Act 1897, between an injured workman (appellant), and his employer (respondent), the latter agreed to pay the former a certain sum weekly as compensation during incapacity, or until the weekly payment should be ended, diminished, increased, or redeemed under the Act. Subsequently, in an arbitration at the instance of the employer for the review and termination of the weekly payments, on the ground that the injured man's incapacity had ceased, the County Court Judge pronounced an order that the agreement “be this day terminated, and that the weekly payments to the workman thereunder be ended accordingly.” At a later period the injured man again became incapable, and in his turn demanded an arbitration for the review and increase of the weekly payment under Schedule 1, section 12.

Held ( affirming a judgment of the Court of Appeal) that the application was incompetent, there being no longer any weekly payment in existence capable of being reviewed, the whole matter having been finally terminated by the Judge's order.

Headnote:

Appeal from a judgment of the Court of Appeal ( Collins, M.R., Cozens-Hardy and Farwell, L.JJ.), affirming an order of the Judge of the County Court of Kent made in an application under the Workmen's Compensation Act 1897.

The facts are stated in the rubric.

At the conclusion of the arguments their Lordships gave judgment as follows:—

Judgment:

Earl of Halsbury—Speaking for myself in this case, I am of opinion that the judgment of the Court of Appeal is right and ought to be affirmed. The language of the judgment of the learned County Court Judge is, I think, not so ambiguous as has been suggested. It appears to me that I must follow the ordinary natural use of the words. He has decided that the payments are to be ended. The natural meaning of the words is plain. I really think that it is not capable of being expressed more clearly than in the language of the judgment itself. Upon the question of keeping alive the power of going back to the County Court Judge in the event of new circumstances arising which may render such a thing appropriate, I do not think it desirable to pronounce any definite opinion here. It is enough for me to say that the order of the County Court Judge is, to my mind, absolutely intelligible, and if I had any doubt about it I think that what the County Court Judge intended is very clearly shown by the fact which has been called to your Lordships' attention by both the learned counsel—namely, that a practice has existed now for some years of making a nominal payment in order to keep the question alive. I do not say that there is any legal effect in that practice. I mention it because, when I am considering the language of the County Court Judge, I cannot entertain any doubt that if he had intended to prolong the period during which the application might be made he would have had recourse to that practice. But he does not. He uses the language of the statute that the payment is to be “ended.” Now, it has been suggested that there would have been some difficulty in

Page: 621↓

appealing against that order of the County Court Judge in this language, because at the time that the application was made, as the learned counsel for the workman admits, there was no incapacity. But to my mind that is not a sufficient answer, because although it may well be that the incapacity had ended for the time, yet if there was a known practice of keeping the claim alive by some form or another (whether that form is effectual or not, as I have said, I do not pause to discuss), but if there was a known form of keeping it alive and the judge made an order which precluded the possibility of any future application, it would have been quite competent to the workman or his advisers to appeal against that form of order upon the very ground that has been argued here, that there is a right to have some compensation at whatever period the incapacity may occur. The answer made by Collins, M.R. is, to my mind, perfectly conclusive. If the order is, as it is to my mind, clear and intelligible, and does preclude any future applications by reason of the recurrence of the incapacity, the form of the order was a subject-matter of appeal and the workman could have appealed. But he has not appealed. The result is that you now have an order which the learned Judge was capable of making, which, duly construed, puts an end to the right of the workman to apply again. That order was not appealed against, and therefore it is impossible for your Lordships to decide otherwise than as the Court of Appeal has decided, that this is an order properly made within the learned Judge's capacity, and not appealed against, and therefore it must be obeyed. The form of the order is such that it is hardly possible to deny—indeed it has been very faintly denied by the learned counsel—that it does put an end to the power of the workman of applying again. I wish to leave entirely untouched the question whether the practice of making a nominal payment per week is one which can have any legal effect or not. That question is not raised at present, and I do not desire to decide more than is actually before your Lordships' House. At all events the result, to my mind, is that the order of the Court of Appeal appealed against is right and ought to be affirmed, and therefore I move your Lordships to dismiss this appeal with costs.

Lord James of Hereford—I concur in the opinion expressed by my noble and learned friend with some hesitation and certainly with regret. I agree with him that the County Court Judge intended that this order should be a final settlement. We were unable to obtain information at the Bar as to whether any application was made to the judge to make a formal suspensory order for 1s. or 1d. But take it either way, either that the County Court Judge refused to make such a usual order, or that the application was not made at all, in either case the County Court Judge must have intended his order to be final. I hesitate to concur in my noble and learned friend's view as to whether there could have been an appeal from that order. I am not sure that it is quite correct. In one sense there could have been an appeal from the order, but if so the appeal would be one that would be open to every applicant in such a case. Therefore I think that the only argument that could have been addressed to the Court of Appeal would have been that every order in such a case ought to be a suspensory order, because there were no incidents in this case to give this applicant any particular right to have that order made any more than any other suitor under similar circumstances. That being so, I think that the real question here, upon which there may be differences of opinion, is as to the power of review. I am not disposed to differ entirely from my noble and learned friend's view on that point, but I should like to reserve my opinion upon it by saying that I am not entirely convinced that there is no such power of review. The instances that were put in argument—of perjured witnesses, or an absolute mistake having occurred, where the learned Judge has been misled—give rise to the question whether there could be an application in the shape of what may be termed a new trial; but in this case I do not understand that there would be any other incident shown except the revival of this illness or incapacity from causes which could not then have been foreseen. Therefore it is that I feel a doubt as to whether there ought not to be a power of review given as to incapacity in the same way as there has been a power of review given in the case of nearly all judicial decisions. I do not think that I am entitled to differ from the view that has been expressed, and I therefore with some hesitation concur in the motion that has been made.

Lord Robertson—I think that the judgment is right. This application is made under section 12 of the first schedule to the Act. That section provides, and provides only, for the revision of a weekly payment, and it postulates as the thing to be operated upon by the Court an existing weekly payment, susceptible of being “ended, increased, or diminished.” Now, here there is no such weekly payment extant, and on this short ground the application was untenable. I am satisfied that in the present instance the County Court Judge who ordered the payment to “end” intended a final termination. I reserve my opinion as to the appropriate course to be taken under this Act by any judge who thinks that possibly there may still be a latent evil which may in the sequel produce incapacity. Accordingly I entirely reserve my opinion as to the propriety or legality of giving a payment at some nominal rate during the period in which ex hypothesi there is no extant incapacity.

Lord Atkinson concurred.

Appeal dismissed.

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Counsel:

Counsel for the Appellant— Shearman, K.C.— E. Browne. Agents— Pattinson & Brewer, Solicitors.

Counsel for the Respondent— Horridge, K.C.— Shakespeare. Agents— William Hurd & Son, Solicitors.

1907

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