Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), First Schedule (15), enacts—“… In the event of no agreement being come to between the employer and the workman as to the workman's condition or fitness for employment [the Sheriff-Clerk] … may refer the matter to a medical referee. The medical referee to whom the matter is so referred shall … give a certificate as to the condition of the workman and his fitness for employment, specifying, when necessary, the kind of employment for which he is fit, and that certificate shall be conclusive evidence as to the matters so certified.”

This was an appeal by way of stated case from the judgment of the Sheriff-Substitute ( Glegg) at Airdrie, in an arbitration under the Workmen's Compensation Acts 1897 and 1906 between George King ( respondent) and the United Collieries, Limited ( appellants).

The case as stated by the Sheriff-Substitute set forth—“This is an arbitration under the Workmen's Compensation Acts 1897 and 1906, in which the Sheriff is asked to ascertain and fix the weekly sum of compensation payable to the pur suer, and to grant an award against the defenders in favour of pursuer, finding him entitled to payment of 13s. 2d. per week, beginning the first payment on 8th May 1909 for the week preceding that date, and so on weekly thereafter until the pursuer is again able to earn full wages, or such weekly payments are varied by the Court, with expenses. The pursuer avers that he was injured while working as a stripper in the employment of the defenders on 25th February 1907, and that under agreement he was paid compensation at the rate of 15s. 7d. per week until 20th October 1908. Payments were then stopped, and on 3rd December 1908 the parties applied to the Sheriff-Clerk for a remit to a medical referee, under paragraph 15 of the First Schedule to the Workmen's Compensation Act 1906. The referee reported that incapacity ceased at 20th October 1908. The workman admittedly acquiesced in nonpayment until 8th May 1909. The workman now says that incapacity recurred then, and asks payment of compensation

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as from that date. The defenders plead that the report of the medical referee is conclusive—First Schedule, 15—and bars the present claim.

“I repelled this plea and allowed a proof.”

The question of law for the opinion of the Court was—“Does the said certificate of the medical referee bar the pursuer's application for arbitration?”

The appellants. argued—The medical referee had certified that incapacity had ceased as at 20th October 1907. The certificate was conclusive evidence as to the man's condition at the time—Workmen's Compensation Act 1906, First Schedule, par. 15; M'Avan v. Boase Spinning Company, July 11, 1901, 3 F. 1048, 38 S.L.R. 772; Ferrier v. Gourlay Brothers, March 18, 1902, 4 F. 711, 39 S.L.R. 453. When the workman's incapacity was declared at an end by the medical referee, the liability of the masters ceased, and they were absolutely entitled to apply to an arbitrator for an order ending the weekly payments—First Schedule of Workmen's Compensation Act 1906, par. 16. The arbitrator would have been bound to pronounce such an order, and the matter could not have been kept open by the award of a nominal sum per week— Clelland v. Singer Manufacturing Company, July 18, 1905, 7 F. 975, 42 S.L.R. 757. Once an order “ending” the weekly payments had been made, no further compensation could be claimed in respect of the accident— Nicholson v. Piper, [1907] AC 215. There having been a statutory reference to a referee, and the referee having granted a certificate that incapacity had ceased, it was not now open to the pursuer to apply for an award on the ground of supervening incapacity. The certificate came in place of an agreement, and if the matter was settled by agreement, or by something that came in place of agreement, then arbitration was excluded— Dunlop v. Rankine & Blackmore, November 27, 1901, 4 F. 203, 39 S.L.R. 146. Dempster v. Baird & Company, Limited, 1908 S.C. 722, 46 S.L.R. 119, was distinguishable. Colville & Sons, Limited v. Tigue, December 6, 1905, 8 F. 179 (Lord Low at 189), 43 S.L.R. 129, was also referred to.

Argued for respondent—(1) The certificate here was not in statutory form, because it addressed itself to the question of incapacity prior to the date of granting the certificate. If the certificate did not fall within the provision of the statute, the respondent was not barred thereby, and was entitled to raise the question again— Allan v. Thomas Spowart & Company, Limited, May 23, 1906, 8 F. 811, 43 S.L.R. 599; Morton v. Woodward, [1902] 2 KB 276. (2) In any view, the certificate was only conclusive of the fact that at the time payments ceased the pursuer was fit for employment. It was not fatal to an arbitration under section 1, sub-section 3, of the Act. There was here invoked for the first time a statutory tribunal. Though a nominal award was no longer possible— Clelland v. Singer Manufacturing Company, sup. cit.—there was nothing in the cases to prevent the pursuer, on recurrence of incapacity, from going to arbitration unless the matter had been settled by agreement or payments terminated by order of Court. In Dempster's case ( sup. cit.) it was held that as there was no subsisting agreement arbitration proceedings were competent.