Scottish Court of Session Decisions

This was a stated case from the Sheriff Court at Hamilton in an arbitration under the Workmen's Compensation Act 1906 between David Morgan, driver, High Blantyre ( appellant), and William Dixon Limited, Blantyre Colliery, Blantyre ( respondents).

The Case stated—“This is an arbitration in which the appellant claimed an award of compensation under the said Act in respect of an injury to his left foot, which injury is alleged to have been sustained while he was in the employment of the defenders as an underground driver on 3rd June 1910.

After the petition for an award of compensation had been presented the respondents required the appellant to submit himself for examination by a duly qualified medical practitioner provided and paid by them, under section 4 of the First Schedule of said Act.

The appellant, however, refused to submit himself for such examination unless upon condition that his own medical attendant should be present throughout the examination.

The respondents refused to accede to this condition, and contended that appellant's refusal to submit himself to medical examination unless on the condition above referred amounted to obstruction in terms of the said section. They lodged a minute in the arbitration craving the Court to sist the appellant's application for arbitration until he submitted himself for medical examination in terms of said section.

Parties were heard upon this minute, and it was conceded in argument by the appellants that there were no special circumstances in his case which called for the presence of his medical attendant at the examination, his contention being that it is the right of the workman in every case, without alleging any special reason, to have his medical attendant present at the examination, and to refuse to submit himself for examination unless and until his employers consented thereto.

The arbiter, while willing to consider any special grounds which might make it expedient that the appellant's medical attendant should be present, held that the appellant's contention was not well founded, and he accordingly granted the crave of said minute, and sisted the application for arbitration until the appellant submitted himself for medical examination as required by the respondents.”

The question of law for the opinion of the Court was—“Whether, apart from any special circumstances in a particular case, a workman is entitled to have his own doctor present throughout the examination by the medical practitioner on behalf of the employers, in terms of section 4 of the First Schedule of the Workmen's Compensation Act 1906, and whether the workman's refusal to submit himself for examination unless his doctor is allowed to be present

Page: 297↓

amounts to ‘refusal’ or ‘obstruction’ in terms of said section?”

Argued for appellant—The respondents would have some difficulty in explaining to the Court why they objected to the presence of the workman's doctor. It was by means of medical evidence that the truth as to his condition would be ascertained. Moreover, according to universal practice inspectio corporis was made in presence of the medical adviser of the party examined. The appellant had not “refused” to submit to examination within the meaning of the Act— Devitt v. Owners of Steamship “ Bainbridge” [1909], 2 K.B. 802.

Argued for respondents—It was conceded before the arbiter that there were no special circumstances calling for the attendance of the appellant's medical adviser. In Devitt v. Owners of Steamship “ Bainbridge” ( sup. cit.) the arbiter held that the workman had not “refused” within the meaning of the section. All that the Court there decided was that his conduct was reasonable in the circumstances. The true view was that the employer was absolutely and unconditionally entitled to have the workman examined by a medical practitioner without anyone else being present— Osborn v. Vickers, Sons & Maxim [1900], 2 Q.B. 91. The Regulations by the Secretary of State as to the medical examination said nothing whatever about the workman's right to adject a condition—Statutory Rules and Orders, 28th June 1907, Workmen's Compensation Act 1906. The only purpose of the examination was that the employer might be medically advised as to whether he should make a tender.