B e f o r e :
LORD JUSTICE DENNING
LORD JUSTICE ROMER
and
LORD JUSTICE PARKER
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IN THE MATTER of AN APPLICATION by ROBERT GILMORE
FOR AN ORDER OP CERTIORARI
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IN THE MATTER of AN APPLICATION by the said ROBERT GUMORE
FOR AN ORDER OF MANDAMUS
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IN THE MATTER of A DECISION NO. 125/11/56 OF THE MEDICAL APPEAL TRIBUNAL AT NEWCASTLE-UPQN TYNE DATED THE 11th MAY OF JUNE,1956.
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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters, Ltd., Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, W.C.2.)
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Mr D.J. TURNER-SAMUELS (instructed by Messrs Gaster & Turner, Agents for Mr I.E. Geffen, Durham)
appeared on behalf of the
Applicant.
Mr RODGER WINN (instructed by The Solicitor for the Minister of Pensions and National Insurance)
appeared on behalf of the Respondents.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
LORD JUSTICE DENNING: This is an application by Robert Gilmore for an order of certiorari to Remove into this Court a decision of a Medical Appeal Tribunal for the purpose of quashing it. It involves the correct application of Regulation 2 (5) of the National Insurance (Industrial Injuries Benefit) Regulations, 1948. That Regulation deals with an injury to one of two "paired organs", as they are called, such as eyes, legs, and so forth. If a man with two good eyes loses the sight of one of them in an industrial accident, his disablement is assessed at 30 per cent. But if a one-eyed man (who lost the sight of an eye many years ago) should lose the sight of his remaining good eye in an industrial accident, then Regulation 2 (5) says that his disablement must be assessed as if the blindness in his bad eye was itself the result of losing his good eye. In nther words, the blindness in both eyes is deemed to be due to the accident. His disablement benefit is therefore to be assessed not at 30 per cent but at 100 per cent.
Now for the facts of this case: Some 20 years ago Robert Gilmore was injured in both eyes by lime burns. It made him almost blind in his right eye, but he had sufficient sight in his left eye to enable him to continue at his work as a blacksmith.
19 years later, in March 1955, whilst he was at work, some ash blew out of the fire into his eyes. This made his left eye — the one on which he relied — a good deal worse than it had been before, so that he could no longer do his work as a blacksmith. He was nearly blind in both eyes. He claimed disablement benefit under the National Insurance (Industrial Injuries) Acts. The first Medical Board on the 2nd October, 1955, made a provisional award under which they assessed the degree of disablement at 100 per cent. The second Medical Board on the 17th January, 1956, made a similar provisional award of 100 per cent. A third Medical Board, however, on the 6th March, 1956, found that, although his sight was still very bad, it was due to a pre-existing condition and was not due to the accident in March 1955* So they made no disablement award at all. He appealed to the Medical Appeal Tribunal, who asked a specialist to examine him.
On the 16th May, 1956, the specialist gave his report. It was in favour of the workman. I will give the material parts of it:
"The right eye is densely scarred from the lime burns in 1936 and has no connection with the recent injury, except that being a blind eye he had no vision in reserve and was entirely dependent on the left eye. We have the definite evidence that from 1936 till 1955 he worked as a blacksmith (pick sharpener). He tells me that he actually performed the work himself and was not supervising. He certainly could not do this now with his present sight and so I feel satisfied that his sight was further markedly impaired as a result of his accident and hypopion ulcer. I should consider that his defective sight was aggravated by the injury on 30.3.55 (this should be 17.3.55) and that this aggravation will be permanent. In regard to prognosis it is too early to say. The graft at present is not transparent enough to give useful sight but it may improve or alternatively it may be possible to do a further graft with better results".
On the 13th June, 1956, the Medical Appeal Tribunal gave their decision in these words:
"With reference to your claim for disablement benefit, the Medical Appeal Tribunal which considered your case on 11th June, 1956, decided that a loss of faculty has resulted from the industrial accident on 17.3.55. The extent of the disablement from the loss of faculty is to be assessed at 20% for the period from 15.4.56. This is a final assessment. The findings of the Tribunal are summarised as follows:
Hearing commenced de novo. The specialist Mr Arkle states in his report of 16.5.56
'I consider that the defective sight was aggravated by the injury on 30.3.55 and that the aggravation will be permanent'.
Further treatment is said to be contemplated. Mr Gilmore had a pre-existing condition of corneal dystrophy hypopion ulcer of which the relationship to injury is doubtful. There remains, however, a possibility of aggravation by the relevant condition and we give Mr Gilmore the benefit of the doubt. We assess the aggravation at 20%".
When Mr Gilmore received that decision, his advisers took the view that the Medical Appeal Tribunal had failed to apply Regulation 2 (5). The 20 per cent represented only the aggravation to the left eye. It ignored the bad sight in the right eye which the Regulation says is to be treated as the result of the injury to the left eye. Mr Gilmore's advisers first sought to get the matter put right by applying to a Medical Board for a review. They relied on Section 40 (1) of the 1946 Act which says that
"any decision of a Medical Board or a Medical Appeal Tribunal may be reviewed at any time by a Medical Board if satisfied by fresh evidence that the decision was given in consequence of the non-disclosure or misrepresentation by the claimant or any other person of a material fact".
The Medical Board held that the case did not come within that provision for review. Mr Gilmore appealed to the Medical Appeal Tribunal. On the 10th December, 1956, the Tribunal rejected his appeal on the ground that his contention was
"not fresh evidence or the non-disclosure of a material fact, but a submission that the Tribunal (in their decision of 13th June, 1956) had misdirected itself in a matter of law which is not a matter upon which a Medical Board can be expected to pronounce".
Mr Gilmore had thus exhausted all the statutory ways of correcting the decision of the Medical Appeal Tribunal. He then sought redress from the Queen's Courts. On the 22nd January, 1957, he moved the Divisional Court ex parte for leave to apply for an order for certiorari to quash the decision, but the Court refused his request. On the 28th January, 1957? he moved this Court ex parte and we granted his request. We thought we ought to extend the usual time limit of six months because he had not been guilty of any delay in seeking redress. We also thought that there was some ground for thinking that there was an error on the face of the record.
On the 12th February, 1957, the application came on for hearing in this Court. After the case was opened, Mr Rodger #inn informed us that he had carefully considered the matter with the responsible officers of the Ministry and as a result he conceded that the decision of the Medical Appeal Tribunal of the 13th June, 1956, was erroneous in point of law. The Ministry, he said, were in some difficulty because the Chairman of the Tribunal had died: but it appeared that the Tribunal had either overlooked Regulation 2 (5) or had thought that on the merits (presumably because they doubted whether there was any aggravation at all due to the injury) 20 per cent was a fair award. In either case the Tribunal had gone wrong in law. The Regulation makes it clear that, once they accepted aggravation to the left eye, they ought to assess the disablement not only for the left eye but also the right eye. They were not at liberty to reduce the award because of their doubts on aggravation any more than a Judge is at liberty to reduce damages because of his doubts on liability.
We might perhaps have acted on Mr Winn's concession and quashed the decision straightaway: but in the course of the discussion some points of very considerable importance emerged upon which we took time to consider our Judgment.
The first point is whether the error of the Tribunal appears on the face of the record. It does not appear on the face of their written adjudication of the 13th June, 1956. There is not a word there about the right eye, or even the left eye for that matter. But the Tribunal gave an extract from the specialists report and thereby, I think, they made that report a part of the record. Just as a pleading is taken to incorporate every document referred to in it, so also does an adjudication. Once the specialist's report is read with the record, we have before us the full facts about the previous injury to the right eye and the subsequent injury to the left. These facts are sufficient to disclose the error in law: for it is then apparent that the award of 20 per cent must be wrong. No reasonable person, who had proper regard to Regulation 2 (5)) could have come to such a conclusion. It is now settled that when a Tribunal come to a conclusion which could not reasonably be entertained by them if they properly understood the relevant enactment, then they fall into error in point of law: see Edwards v. Bairstow, 1956 Appeal Cases, 14. When the primary facts appear on the record, an error of this kind is sufficiently apparent for it to be regarded as an error on the face of the record such as to warrant the intervention of this Court by certiorari.
I may add that, even if we had not been able to have recourse to the specialist's report, we would have been able to get the facts by ordering the Tribunal to complete the record by finding the facts, as the Regulations require them to. By Regulation 13 of the Determination of Claims Regulations, 1948, it is enacted that
"a tribunal shall in each case record their decision in writing ... and shall include in such record .. a statement of the reasons for their decision, including their findings on all questions of fact material to the decision".
It seems to me that the Tribunal cannot, by failing to find the material facts, defeat an application for certiorari. The Court has always had power to order an inferior tribunal to complete the record. Chief Justice Abbott long ago gave very good reasons in this behalf. He said
"If an inferior Court ... send up an incomplete record, we can order them to complete it ... If we are not to order, or allow the officers of the Court below to make a perfect record, which unquestionably they are at liberty to do, it will be in their power, by making an imperfect record, to defeat a writ of error whenever it shall be brought. The power of doing that lies in their hands, unless we prevent it": see Williams v. Baygot, (1824) 4 Dowling and Ryland, 315.
Likewise a tribunal could defeat a writ of certiorari unless the Courts could order them to complete or correct an imperfect record. So the Courts have power to give such an order: see Rex v. Warnford (1825) 5 Dowling and Ryland, 489.
The second point is the effect of Section 36 (3) of the 1946 Act which provides that
"any decision of a claim or question ... shall be final".
Do those words preclude the Court of Queen's Bench from issuing a certiorari to bring up the decision?
This is a question which we did not discuss in Rex v. Northumberland Compensation Appeal Tribunal, 1952 1 King's Bench, 338, because it did not there arise. It does arise here, and on looking again into the old books I find it very well settled that the remedy by certiorari is never to be taken away by any statute except by the most clear and explicit words. The word "final" is not enough. That only means "without appeal". It does not mean "without recourse to certiorari". It makes the decision final on the facts, but not final on the law. Notwithstanding that the decision is by a statute made "final", certiorari can still issue for excess of jurisdiction or for error of law on the face of the record.
Lord Coke started this train of authority when he said that the words of an Act of Parliament "shall not bind the King's Bench because the pleas there are coram ipso Rege": see Foster's Case, (1615) 11 Coke's Reports, at page 64b. Chief Justice Kelynge gave the train an impetus in 1670 when an order of the Commissioners of Sewers was brought before him. It was pointed out that the Statute enacted "that they should not be compelled to certify or return their proceedings" and "that they shall not be reversed but by other Commissioners". Chief Justice Kelyngc disposed of the objection by saying:
"Yet it was never doubted, but that this Court might question the legality of their orders notwithstanding: and you cannot oust the jurisdiction of this Court without particular words in an Act of Parliament. There is no jurisdiction that is uncontrollable by this Court": see Rex v. Smith & Others Commissioners of Sewers, 1 Modem Reports, at page 45, Callis on Sewers, Fourth Edition, page 342.
A few years later, in 1686, the Court of King's Bench had a case where the collectors of the tax on chimneys had distrained on the landlord of a cottage. The Act said that "If any question shall arise about the taking of any distress, the same shall be heard and finally determined by the justices". The justices made a determination which was erroneous in law on its face in that it did not state sufficient grounds for making the landlord liable. The Court issued a certiorari to quash their determination and said:
"The statute doth not mention any certiorari which shows that the intention of the lawmakers was that a certiorari might be brought, otherwise they would have enacted, as they have done by several other statutes, that no certiorari shall lie. Therefore the meaning of the Act must be that the determination of the justices shall be final in matters of fact only": Rex v. Plowright, (1686) 3 Modern Reports, 94.
In 1699,in the famous case of the College of Physicians, Lord Holt gave the full weight of his authority to those decisions, especially mentioning the case of the Commissioners of Sewers: see Groenwalt v. Burwall, 1 Lord Raymond's Reports, at page 469. In 1760 Lord Mansfield was faced with the Coventicles Act which said "that no other Court whatsoever shall intermeddle with any cause or causes of appeal upon this Act: but they shall be finally determined in Quarter Sessions only". Nevertheless Lord Mansfield ordered certiorari to issue, saying
"The jurisdiction of this Court is not taken away, unless there be express words to take it away: this is a point settled": see Rexv.Moreley, (1760) 2 Burrow's Reports, at page 1042.
In 1800 a conviction by justices was erroneous on the face of the record, because it did not exclude a possible defence. When the defendant moved to have it quashed, the prosecutor objected "that the defendant having elected to appeal to the Sessions, the certiorari was in effect taken away by the Act, because it said that the determination of the Sessions shall be final": but Lord Kenyon, the Lord Chief Justice, said "That would be against all authority; for the certiorari being a beneficial writ for the subject, would not be taken away without express words": see Rex v. Jukes, (1800) 8 Term Reports, at page 544. Joseph Chitty commenting on this case said the words "finally determine" merely prohibit a reinvestigation of the facts: see Chitty's Practice, Volume II, page 219. Finally, in 1823 the Court of King's Bench in its golden age presided over by Chief Justice Abbott summed up the whole matter by saying that "certiorari always lies, unless it is expressly taken away, and an appeal never lies, unless it is expressly given by the Statute": see Rex v. Cashiobury Justices, (1823) 3 Dowling and Ryland, at page 35*
It was no doubt that train of authority which Lord Sumner had in mind when he said in Rex v. Nat Bell Liquors Ltd., 1922 2 Appeal Cases, 128, at page 159:
"Long before Jervis's Acts, statutes had been passed which created an inferior court and declared its decisions to be 'final' and 'without appeal', and again and again the Court of King's Bench had held that language of this kind did not restrict or take away the right of the Court to bring the proceedings before itself by certiorari".
I venture therefore to use in this case the words I used in the recent case of Taylor v. National Assistance Board, 1957 2 Weekly Law Reports, at page 193,(about declarations) with suitable variations to certiorari:
"The remedy is not excluded by the fact that the determination of the Tribunal is by Statute made 'final'. Parliament only gives the impress of finality to the decisions of the Tribunal on the condition that they are reached in accordance with the law".
In my opinion, therefore, notwithstanding the fact that the Statute says that the decision of the Medical Appeal Tribunal is to be final, it is open to this Court to issue a certiorari to quash it for error of law on the face of the record. It would seem to follow that a decision of the National Insurance and Industrial Insurance Commissioners is also subject to supervision by certiorari (a point left open by the Divisional Court in Regina v. National Insurance Commissioners, 1954 2 All England Reports, 292) but they are so well versed in the law and deservedly held in such high regard that it will be rare that they fall into error such as to need correction.
In contrast to the word "final" I would like to say a word about the old Statutes which used in express words to take away the remedy by certiorari by saying that the decision of the Tribunal "shall not be removed by certiorari". Those Statutes were passed chiefly between 3680 and 1848 in the days when the Courts used certiorari too freely and quashed decisions for technical defects of form. In stopping this abuse the statutes proved very beneficial but the Court never allowed those statutes to be used as a cover for wrongdoing by tribunals. If tribunals were to be at liberty to exceed their jurisdiction without any check by the Courts, the rule of law would be at an end. Despite express words taking away certiorari, therefore, it was held that certiorari would still lie if some of the members of the tribunal were disqualified from acting: see Regina v. Cheltenham Corporation, (1841) 1 Queen's Bench, 417, where Lord Denman, Chief Justice, said "The Statute cannot affect our right and duty to see justice executed". So also if the tribunal exceeded its jurisdiction (see Ex parte Bradlaugh, 3 Queen's Bench Division, 509) or if its decision was obtained by fraud (see Regina v. Sillyard, (1848) 12 Queen's Bench, 527) the Courts would still grant certiorari. I do not pause to consider those cases further: for I am glad to notice that modern Statutes never take away in express words the right to certiorari without substituting an analogous remedy. This is probably because the Courts no longer use it to quash for technical defects but only in case of a substantial miscarriage of justice. Parliament nowadays more often uses the word "final" or "final and conclusive" or some such words which leave intact the control of the Queen's Courts by certiorari.
The value of this ancient writ of certiorari is well shown by the present case in which-it is only by reason of it that a workman blinded at work obtains the industrial insurance benefit to which he is by law entitled, as now acknowledged on all hands. The order must issue to quash the declaration 6f the Medical Appeal Tribunal of the 13th June, 1956. There is no need for a mandamus because the Tribunal will no doubt consider the claim afresh and come to a right decision on it.
LORD JUSTICE ROMER: I agree. In my judgment, it would be deplorable if we were constrained to hold that the decision of a Medical Appeal Tribunal, however wrong in law, and however obviously wrong, was immune from review by Her Majesty's Courts. I cast no reflection whatever on Tribunals such as that in the present case, and they do their work conscientiously and with efficiency. But in the nature of things these and similar inferior tribunals (and there are many of them nowadays) are bound to go wrong from time to time in matters of law. Their members consist in the main of people who have devoted their lives to activities far removed from the study and practice of the law; and neither by training nor by experience can they be expected to have that knowledge of principles of construction which is so necessary for the proper understanding and application of the various Statutes and Regulations which often come before them. Injustice may well result, and a sense of injustice is a grievous thing. I therefore think (and I have said as much before) that it is not in the public interest that inferior tribunals of any kind should be ultimate arbiters on questions of law. Parliament, of course, can make them so; but it is clear from the authorities to which my brethren refer in their Judgments (which I have had the advantage of reading in advance) that a legislative indention to do so is not sufficiently expressed by the mere provision that the decision of such and such a tribunal shall be "final". I agree with, and desire to add nothing to, the Judgments of my Lords upon that subject. With regard to Section 36 (3) of the National Insurance (Industrial Injuries) Act, 1946, however, I am clearly of opinion that the provision that "any decision of a claim or question as provided by the foregoing provisions of this section shall be final" means no more than that such decisions shall not be the subject of appeal or reference. This is shown by the opening words of the sub-section "Except as provided by this Part of the Act or by the Family Allowances Act 1946", etc. Part III of the National Insurance Act contains specific provisions for appeals in certain prescribed cases and the Family Allowances Act, 1946, provides by Section 5 for references as therein mentioned to one or more referees. The object, therefore, *f Section 36 (3) *f the National Insurance Act was merely to indicate which decisions (to the exclusion of others) might be the subject of an appeal or reference; the sub-section is not concerned with, and is certainly not prohibiting, applications for orders for certiorari, which are neither appeals nor references.
I accordingly agree with the Order which my Lord has proposed. ,ORD JUSTICE PARKER: In this case Mr Turner-Samuels moves on behalf of Mr Robert Gilmore for an order of certiorari to bring up and quash a decision dated the 11th June, 1956, of a Medical Appeal Tribunal on the ground that there is a manifest error of law on the face of the record. Mr Rodger Winn, who appears for the Ministry if Pensions & National Insurance, and for the Tribunal, concedes that such an error appears and does not oppose an order rf certiorari. Before, however, making such an order the Court must be satisfied that it has jurisdiction to do so. That the Tribunal erred in law is clear, and for the reasons given by my Lord I am satisfied that the error appears on the face of the record. The question, however, remains whether the Court has jurisdiction to make the order.
The remedy by way of certiorari to quash the decision of an inferior tribunal for an error of law on the face of the record has been long established though sometimes overlooked see Walsall Overseers v. London & North Western Railway Co., 1878 4 Appeal Cases, 30; Rex v. Northumberland Compensation Appeal Tribunal, 1951 1 King's Bench,711, and in the Court of Appeal l952 1 King's Bench, 338. It is an important; jurisdiction, and though no doubt Parliament has the power in any case to deprive the Courts of this supervisory jurisdiction it could, as I conceive the position, only do so by clear words. In the present case, unlike many others, the Statute provides that the decision of the Tribunal shall be final. Thus Section 36 (3) of the National Insurance (Industrial Injuries) Act, 1946, provides that "Except as provided by this Part of this Act .... any decision of a claim or question as provided by the provisions of this section shall be final". As appears from the preceding subsections decisions include decisions of Medical Appeal Tribunals which are accordingly final. It is to be observed that the decisions also include decisions of the Commissioner of Industrial Insurance, and the effect of the corresponding provision in regard to the Commissioner of National Insurance was specifically reserved in Reg.v. National Insurance Commissioner, Ex parte Timmis, 1954 3 All England Reports, 292.
One thing is clear beyond doubt. The ordinary remedy by way of certiorari for lack of jurisdiction is not ousted by a statutory provision that the decision sought to be quashed is final. Indeed that must be so, since a decision arrived at without jurisdiction is in effect a nullity. This, however, is not so where the remedy is invoked for error of law on the face of the decision. In such a case it cannot be said that the decision is a nullity. The error, "however grave, is a wrong exercise of a jurisdiction which he has, and not a usurpation of a jurisdiction which he has not", see Lord Sumner in Rex v. Nat Bell Liquors Ltd., 1922 Appeal Cases, at page 151. But is the statement that the decision shall be final sufficient to oust the remedy? There are many instances where a statute provides that a decision shall be "final". Sometimes as here, the statute provides that subject to a specific right of appeal the decision shall be final. In such a case it may be said that the expression "shall be final" is merely a pointer to the fact that there is no further appeal, and the remedy by way of certiorari is not by way of appeal. Since, however, appeal is the creature of statute the expression is strictly unnecessary. In other cases the expression is used in the statutes when no rights of appeal are provided. In such a case it could be said that the expression was of no effect unless it was intended to oust the remedy by way of certiorari. Be that as it may, I am satisfied that such an expression is not sufficient to oust this important and well-established jurisdiction of the Courts.
Not only is there no authority to the contrary but Parliament has, I think, long recognised that the expression does not have that effect. As Lord Sumner points out in Rex v. Nat Bell Liquors Ltd.(vide supra)at pages 159 and 160:
"Long before Jervis's Acts statutes had been passed which created an inferior Court, and declared its decisions to be 'final' and 'without appeal', and again and again the Court of King's Bench had held that language of this kind did net restrict or take away the right of the Court to bring the proceedings before itself by certiorari. There is no need to regard this as a conflict between the Court and Parliament; on the contrary, the latter, by continuing to use the same language in subsequent enactments, accepted this interpretation, which is now clearly established and is applicable to Canadian legislation, both Dominion and Provincial, when regulating the rights of certiorari and of appeal in similar terms. The Summary Jurisdiction Act, 1848, was intended to produce and did produce its result by a simple change in procedure without unduly ousting the supervisory jurisdiction of the superior Court".
Further, it is to be observed that the analogous remedy of setting aside the award of an arbitrator for an error of law on the face of the award is available even though the submission is by Section 16 of the Arbitration Act, 1950, deemed to contain a provision that the award is final.
Accordingly, though the matter has not been fully argued, I am satisfied that this Court has jurisdiction in the present case to grant the order and that it should be made. No question of discretion arises since the Applicant is clearly a party aggrieved.
MR TURNER-SAMUELS: If your Lordship pleases, I ask for the costs here and the costs in the Divisional Court. Your Lordships have already referred to the fact that an application was made to the Divisional Court, which was refused.
LORD JUSTICE DENNING: That must be so.
MR WINN: Yes, my Lord. We did not oppose, but at the same time I am content that your Lordship should make that order.
LORD JUSTICE DENNING: Very well. Then an order of certiorari will issue to quash the decision, and you shall have the costs here and below.
MR WINN: If your Lordship pleases.
LORD JUSTICE DENNING: I suppose we need say nothing about the application for mandamus?
MR TURNER-SAMUELS: Your Lordship will no doubt recollect that I did not move for mandamus in the circumstances.
LORD JUSTICE DENNING: So we need not say anything more about that.
MR TURNER-SAMUELS: Your Lordship need not say anything more.
My Lord, there was one point. There are some costs in relation to the mandamus, and I would ask your Lordship to say that there should be no order so far as the application for mandamus is concerned save that the Applicant should have his costs.
LORD JUSTICE DENNING: What do you say about that, Mr Winn?
MR WINN: It is a little bit like Oliver Twist, my Lord. There was never any need for mandamus here.
LORD JUSTICE DENNING: That is what occurred to me.
MR WINN: I leave it to your Lordships, if I may respectfully say so. I am not anxious that that additional burden should be put upon me.
(Their Lordships conferred)
LORD JUSTICE DENNING: We think no costs. I hope your client will not suffer by it, Mr Turner-Samuels. I do not suppose he will.
MR TURNER-SAMUELS: If your Lordship pleases.
