The terms of employment of a goods guard in the service of the Midland Railway are, so far as is material to the present case, as follows: The regular day's work is ten hours and the week's work sixty hours, for which a fixed wage is paid. If the week's work exceeds sixty hours, the guard is entitled to extra pay. After being on duty for ten hours he is entitled to nine hours' rest, and that is the regular rest time between long outward and return journeys. He has frequently to lodge away from home, and on these occasions is entitled to a lodging allowance. If the lodgings are provided by the company. the allowance is-country 1s. and London 1s. 6d. If he finds his own lodgings, the allowance is-country 2s. and London 3s. The minimum time for which a lodging allowance may be drawn is nine hours. If a guard has to remain away longer than nine hours, further allowances are made. For the purpose of ascertaining the time during which a guard is on duty with his train and off duty, and entitled to a lodging allowance, he "signs on" when he takes his train from the home station. When he arrives at a station where he is to wait nine hours or more, he "signs off"; when he rejoins his train for the return journey, he "signs on " again, and "signs off" on his arrival at the home station. At the end of his journey he makes a return of the hours during which he has been "signed on," that is, at work, and his wages are regulated accordingly. He also separately makes a claim for lodging allowance in respect of the hours during which he has been "signed off." The object of the lodging allowance was stated by an official of the company to be to cover out of pocket expenses to which a guard is put through having to sleep away from home. It was found as a fact by the county court judge that the amount of the allowance was about equal to the reasonable cost of board and lodging, or of board only if the company's lodgings are used, for the time covered by the allowance. It was proved that no inquiry is made as to the expenses incurred by a guard for board and lodging, and it was admitted that if a guard boarded and lodged with a friend, and at the friend's expense, or if he took his own food with him, he would nevertheless be entitled to his lodging allowance. The county C. A. 1903 SHARPE V. MIDLAND RAILWAY. C. A. 1903 SHARPE v. MIDLAND court judge was of opinion that a guard might make a profit out of his allowance, but he had no evidence before him that the deceased or any other guard ever did in fact make any profit, and the guards who gave evidence stated that at times the cost of their board and lodging exceeded the allowance. The deceased always found his own lodgings, and during the three years previous to his injury had lodged out on 214 occasions, and drew in all 231. 2s. for lodging allowance. The county court judge was of opinion that the sum in question formed part of the deceased's earnings within the meaning of the Act. He was of opinion that the absences from home were incidents of the service, and that the allowance could not be regarded as a mere repayment of out of pocket expenses, being in fact a fixed payment, independent of what the guard actually expended in board and lodging; and, further, that as the guard must sleep and eat, whether at home or away from home, the fact that he has a special allowance for lodging and food when away from home was of some pecuniary benefit to him. The judge pointed out that a guard was as much entitled to the allowance, when the occasion arose, as to his regular wages, and that the allowance made an addition to the regular wages. An award was therefore made on the footing of including the amount received for lodging allowance in the earnings of the deceased. The respondent company appealed. April 23. Hugo Young, K.C., and J. D. Crawford, for the company. The lodging allowances formed no part of the earnings of the deceased. They were paid, not for the time that he was at work, but for periods when he was off duty. They were paid to recoup him for expenses incurred in the interest of his employers. The case is the same as if the company had contracted with some one to provide board and lodging, and had paid the amounts direct to the person with whom they contracted. In such a case it would be impossible to treat them as earnings. The payments were to cover the expenses of the deceased incurred by reason of his duties. preventing his returning home, and it is found as a fact that the allowance is about equal to the cost. The term earnings is not applicable to money which the workman receives with one hand and pays away with the other. A sum, for instance, allowed to a commercial traveller for his railway fares could not properly be treated as part of his income. The most that could under any circumstances be taken into account as earnings would be the profit made by the deceased. As to the proportion of the payment which could be treated as profit there was no evidence, and to arrive at the amount it would have been necessary to determine how much of the allowance was in excess of the expenditure the guard would have incurred at home. Lastly, the earnings must be of such a nature that the deceased's dependants were dependent on them, which was not the case, since these moneys represented sums actually spent by the deceased when away from his family. S. T. Evans, K.C., and Clement Edwards, for the applicant. In an inquiry as to "earnings," the test is not the loss to the widow. The compensation is based on the earnings during the three preceding years. When those have been ascertained, the scale is applied subject to a maximum amount. In estimating the earnings it is clear that something beyond mere wages, ordinarily so called, should be taken into account: Noel v. Redruth Foundry Co. (1); Pomphrey v. Southwark Press (2); Houghton v. Sutton Heath Collieries Co. (3) The wages were computed with regard to certain specified hours of work, there was a payment for overtime at a fixed rate, and allowances for board and lodging, also at a fixed rate, during the time the guard was away from home. It can make no difference that the amount actually paid in respect of this last item was dependent on the movements of the guard. If it had been a fixed estimated sum it would certainly be included in earnings. His absence from home was in the discharge of his duty to his employers, and he was as much entitled to be paid in respect of that as he was to be paid his wages. The question of profit arising from these payments does not arise; but if it did, it is clear that there must be some saving to the (1) [1896] 1 Q. B. 453. (2) [1901] 1 K. B. 86. (3) [1901] 1 K. B. 93. C. A. 1903 SHARPE v. MIDLAND C. A. 1903 SHARPE v. MIDLAND guard, and, if so, it cannot be necessary to discriminate as to [They referred to Nelson v. Kerr. (1)] Cur. adv. vult. May 4. STIRLING L.J. read the following judgment:-This is an appeal by the Midland Railway Company from the decision of his Honour Judge Lindley, as arbitrator under the Workmen's Compensation Act, 1897, holding that the earnings of a deceased railway guard in the employment of that company included certain sums paid to him, in addition to his ordinary wages, under the name of "lodging allowance." The facts are very clearly stated in an excellent written judgment of the learned judge, and it is unnecessary to state them in detail. It appears that railway guards in the course of their duty have frequently to lodge away from home, and on these occasions are, under the terms of their employment by the Midland Railway Company, entitled to receive the allowances in question, which are made on the following scale: If the guard lodges in lodgings provided by the company he is allowed 1s. in the country or 1s. 6d. in London. If he finds his own lodgings he is allowed 2s. in the country or 3s. in London. The object of the allowances is to cover out of pocket expenses to which a guard is put through having to sleep away from home; and the judge finds as a fact that the amount of the allowance is about equal to the reasonable cost of board and lodging (or board only if the company's lodgings are used) for the time covered by the allowance. But it also appears that no inquiry is ever made by the railway company as to the actual expenses incurred by a guard, and it was admitted that, if a guard lodged with and was boarded by a friend or relative, without incurring any expense, he would be entitled to the lodging allowance. The question whether in these circumstances the allowance is to be treated as a repayment of out of pocket expenses or as an addition to wages is one of some nicety; but I find myself unable to differ from the reasoning and conclusions of the learned judge. The allowance is a pay (1) (1901) 3 F. 893. C. A. 1903 SHARPE v. MIDLAND ment to which the guard becomes entitled (no less than to his weekly wages) upon the happening of certain events, whether he has incurred out of pocket expenses or not. He is in no way liable to account to the company in respect of the money he receives, which is as much his own as his weekly wages. The bargain between the guard and the company is that the Stirling L...J. former is at his own expense to provide himself with the ordinary necessaries of life, and, so far as the allowance is made in respect of food, it constitutes an addition to his resources; for, as I understand the finding of the judge, the amount of allowance covers the whole of the reasonable cost of board while the guard is away from home, and not merely any extra cost occasioned to him during that period, so that the domestic establishment is thus relieved from the expense of providing food for the guard in his absence. The allowance, therefore, appears to me to form part of the workman's earnings, although the amount of it may have been calculated by reference to the probable amount of his expenditure on board and lodging. It was strongly urged upon us that the whole of the allowance ought not to be treated as earnings, but only so much as might be shewn to constitute profit in the hands of the workman; but to give effect to this contention would be to embark on an inquiry not contemplated by the Act, which prescribes that the compensation shall be assessed simply by reference to the amount of the workman's earnings at the time of his death, without any investigation as to the mode in which he applied them when received. For these reasons, and also for those given by the learned judge, I think that the appeal fails and ought to be dismissed. I may add that the Master of the Rolls agrees with this judgment. MATHEW L.J. I have had an opportunity of reading the judgment of the Lord Justice, with which I entirely agree. Appeal dismissed. Solicitor for applicant: A. Toovey, for Flint & Son, Derby. A. M. |