Scottish Court of Session Decisions

The Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37), First Schedule, enacts (Sec. 11—“Any workman receiving weekly payments under this Act shall, if so required by the employer, … from time to time submit himself for examination by a duly qualified medical practitioner provided and paid by the employer, … but if the workman objects to an examination by that medical practitioner, or is dissatisfied by the certificate of such practitioner upon his condition when communicated to him, he may submit himself for examination to one of the medical practitioners appointed for the purposes of this Act, … and the certificate of that medical practitioner as to the condition of the workman at the time of the examination shall be given to the employer and workman, and shall be conclusive evidence of that condition. If the workman refuses to submit himself to such examination, or in any way obstructs the same, his right to such weekly payments shall be suspended until such examination has taken place.” Sec. 12—“Any weekly payment may be reviewed at the request either of the employer or of the workman, and on such review may be ended, diminished, or increased.” …

John M'Kay, 76 Jewel Cottages, Portobello, a miner in the employment of the Niddrie

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and Benhar Coal Company, Limited, met with an accident on February 24th 1902, whereby he sustained injuries which disabled him from following his ordinary employment. M'Kay's earnings at the time of the accident amounted to 25s. per week, and the compensation payable to him under the Workmen's Compensation Act 1897 was settled by agreement at 12s. 6d. per week. He was paid compensation at this rate from March 10th 1902, and at the date of the appeal after mentioned was still receiving compensation.

On February 9th 1903 a memorandum of the foresaid agreement, dated January 30th 1903, was recorded at the instance of the workman in the special register kept for that purpose by the Sheriff-Clerk

On February 11th 1903 the Niddrie and Benhar Coal Company presented to the Sheriff-Substitute at Edinburgh ( Henderson) an application for review under section 12 of the First Schedule of the Act alleging that M'Kay's incapacity for work arising from his injuries did not extend beyond November 7th 1902.

The case came before the Court of Session on an appeal by the Niddrie and Benhar Coal Company (appellants) against the interlocutor pronounced by the Sheriff-Substitute in this application for review.

The case for appeal stated:—“The respondent was examined by a medical practitioner provided and paid for by the appellants who on 7th November 1902 granted a certificate that the respondent was fit for work. Thereupon the appellants intimated to him that his compensation would be stopped unless he submitted himself to examination by a medical referee, under section 11 of the first schedule of the said Act. The respondent intimated to the appellants that he was dissatisfied with said medical certificate, but prior to the presentation of the said application [ i.e. the application for review] the respondent, while alleging that he was willing to discharge all statutory obligations incumbent upon him, did not submit himself to examination by one of the medical experts appointed under the Act owing to his inability, as he averred, through poverty to pay the fee in connection therewith. In these circumstances I suggested that the parties might lodge any medical certificates upon which they respectively founded. The appellants did not produce the medical certificate of 7th November 1902, and opposed an allowance of proof on the ground that the respondent not having submitted himself for examination by a medical referee when called upon to do so had no other remedy under the Act. No evidence was led before me. The respondent produced a certificate under the hand of a medical practitioner, dated 14th February 1903, certifying that in his opinion respondent was suffering from spinal cord debility and unable to resume his usual employment.

“Considering that the medical certificate produced by the respondent was not sufficient to enable me to dispose of the said application, and also holding that the delay on the part of the respondent to submit himself for examination on the ground of alleged poverty did not necessarily terminate his right to compensation, I, on 10th March 1903, under section 13 of the second schedule appended to the said Act, and relative regulations, remitted to one of the medical referees under the act to report whether the respondent was physically fitted to return to his former work, or if not, to what extent he was capacitated for work or incapacitated from work. The respondent after this remit duly submitted himself to examination by the medical referee. On 26th March 1903, the medical referee having made his report, I pronounced the following interlocutor:— Edinburgh, 26 th March 1903.—The Sheriff Substitute having considering the report of the medical referee appended to the reference made to him, Finds in terms of said report that John M'Kay, the workman with regard to whose physical state the said reference was made, is still unfit for his usual employment, that he is only capable of light work with his hands, and that it is at present impossible to fix any date at which he may be able to resume his ordinary work; therefore, as it appears from the report of the medical referee that M'Kay, although still unfit for his usual employment, is capable of some light work with his hands, diminishes the weekly payments due to him under the memorandum of agreement by 3s. per week; Ordains the minuters (the appellants) to pay to the said John M'Kay the sum of 9s. 6d. per week, and that from and after the date of this deliverance: Finds M'Kay entitled to expenses,” &c.

The questions of law for the opinion of the Court were:—“(1) Under section 11 of the first schedule appended to the Workmen's Compensation Act 1897, where a workman has been examined by a duly qualified medical practitioner provided and paid by his employers, and is dissatisfied with the certificate of such practitioner, and owing to his alleged inability through poverty to pay a fee, has not submitted himself for examination to the medical practitioner appointed for the purposes of the said Act for the district in which his case has arisen, does such workman's compensation fall to be suspended so long as he does not submit himself for examination to such medical practitioner appointed for the purposes of said Act? (2) In such circumstances, and there having been no medical evidence led before the Sheriff, was the Sheriff entitled to remit, under section 13 of the second schedule appended to the Act, and relative regulations, to a medical practitioner appointed for the purposes of the said Act to report as to the condition of the workman? (3) Was the report of the medical practitioner to whom the remit was made conclusive (1) as to the condition of the workman, and (2) as to whether the workman's incapacity arose from the injuries in respect of which compensation is claimed?”

Argued for the appellants—The appellants having got the certificate of November 7th 1902 that the respondent was fit for work were entitled under section 11 of the First Schedule of the Act to stop the weekly payments unless and until the

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respondent submitted himself for examination by one of the medical practitioners appointed for the purposes of the Act. With a view to avoid the expense of litigation they had preferred to go on making the weekly payments, and to bring an application for review under section 12 of the First Schedule. They maintained, however, that the respondent's right to the payments was suspended as from November 7th 1902, and their first motion to the Sheriff was to that effect. Section 11 prescribed the manner in which in a simple way the condition of the workman could be definitely ascertained, and was designed to prevent the conflict of testimony and confusion which, as shown in Dowds v. Bennie & Son, December 19, 1902, 5 F. 268, 40 S.L.R. 239, might result from a proof as to the workman's condition, and to provide an employer who has reason to believe that the workman was fit for work with a summary remedy— per Lord Adam in Steel v. Oakbank Oil Company, Limited, December 16, 1902, 5 F. 244, 40 S.L.R. 205. The employer had no power to compel the workman to submit to examination by a specially appointed medical man, but if the workman refused, section 11 in its last sentence prescribed that his right to the weekly payments should be suspended. There was no hardship to the workman in such suspension, for his remedy, if dissatisfied with the report of the medical man provided by the employer, was to submit himself for examination by a medical man appointed under the Act. The contention of the appellants had been upheld and was given effect to in Davidson v. Mossend and Summerlee Iron and Steel Company, Limited, June 10, 1903, 40 S.L.R. 764. The Sheriff was accordingly wrong in disregarding section 11, and making a remit under section 13 of Schedule II. The certificate of 7th November 1902 was not produced in the Sheriff Court, and objection was taken to proof because the only relevant fact was admitted, viz., the refusal of the respondent to submit to examination by a medical practitioner appointed under the Act.

Argued for the respondent—The first question in law for the opinion of the Court was in the circumstances of this case purely academic, as the appellants had continued to make the weekly payments. [Lord kinnear—The Sheriff has ordained a payment of 9s. 6d. per week, and neither party appealed against this decerniture, so that the only practical question is as to the intermediate payments since November 7th 1902.] The Sheriff was right in holding that the delay on the part of the respondent to submit himself to examination by a medical man appointed for the purposes of the Act, on the ground that he was unable to pay the fee, was not a reason for suspending the weekly payments. The Treasury, under Sched. II., sec. 13, of the Act, refused to pay the fee for examination to any medical man unless he had been specially appointed to report by the arbitrator. The option given under section 11 to submit to examination by a medical man appointed under the Act was an option given to the workman. The word was “may,” not “shall.” It was permissive, not imperative. A workman who had submitted to either of the two examinations contemplated in section 11 did not come within the provision at the end of section 11. The words “such examination” were satisfied by either the one or the other of the alternative modes of examination contemplated by the section. The respondent having submitted to examination by the medical man provided by the appellants had not “refused” or “obstructed” examination. The contention of the appellants involved that “may” should be read “shall,” and “such examination” be read “both examinations.” Section 11 must be read along with section 12 of the schedule. The procedure by application for review provided in section 12 of the First Schedule remained open and afforded a speedy remedy to the employer. The appellants had in fact followed that procedure, but they did not produce the medical certificate of November 7th 1902, and led no evidence, so that it was necessary for the Sheriff to remit to a medical referee under section 13 of the Second Schedule. In Davidson v. The Summerlee Iron and Steel Company, Limited (cit. sup.), the agreement between the employer and the workman as to compensation had not been recorded, and the question was whether he was entitled to arbitration. The circumstances of that case were accordingly different, and the opinions of the majority of the Judges had reference to these different circumstances.

At advising—