Scottish Court of Session Decisions

In an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), in the Sheriff Court at Cupar, between Stewart Cruden, miner, Coaltown of Wemyss, Fife ( respondent), and the Wemyss Coal Company, Limited, East Wemyss ( appellants), the Sheriff-Substitute ( Hannay),at the request of the company, stated the following Case for appeal:—“This is an arbitration in an application to end the compensation, under the Workmen's Compensation Act 1906, Schedule I, section 16. The facts of the case are as follows—(1) On 9th August 1910 Stewart Cruden, the claimant, who was working as a miner underground, sustained injury to his left eye as the result of an accident while in the course of his employment

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with the appellants at their Lochhead Colliery, East Wemyss.… (3) On 12th June 1911 the claimant was examined by Dr George Mackay, 20 Drumsheugh Gardens, Edinburgh, medical referee in ophthalmic cases under the Workmen's Compensation Act 1906, on a remit under section 15 of Schedule I of said Act. (4) The report of said medical referee, lodged on 13th June 1911, is in the following terms—‘The said Stewart Cruden has a scar upon the cornea of his left eye, due to a septic ulcer which followed upon an abrasion by a piece of coal accidentally striking his eye while at work on August 9th, 1910. The direct vision of this eye is thereby reduced to about one-fourth of normal for distance, but the eye is now free from inflammation, has a fair field of vision, and though impaired is still capable of doing useful service. The other eye is practically normal, only requiring reading glasses suited to his age. Cruden has a good judgment of distance and direction even in subdued light. He has been already engaged for three months in surface work; and his condition is such that I consider he ought now to be fit to resume his ordinary work as a miner below ground.’ (5) Following upon said report, the appellants lodged in process in the Sheriff Court at Cupar a minute craving the Court to end the claimant's compensation as at 12th June 1911. The claimant lodged answers to said minute, stating, inter alia, that he had not recovered from the injuries which he had sustained, and that he had not recovered his earning capacity following upon said injuries; that he was still under medical treatment; that as the result of the injuries which he had sustained he was suffering from giddiness and headaches, both during his shift and after; that these headaches, &c., were most frequent when he had to stoop or bend, and were a result of the injuries which he had sustained; that they interfered with his capacity for work and his earning ability; that his eyesight was weak as a result of the accident and became dim and fagged by the end of the shift; and further, that he was unable to work in the flare of a naked light or in strong sunlight. The claimant also stated that while his earning capacity had been and was at that time much reduced as a result of the injuries which he had sustained, he was prepared to try work below ground so that his earning capacity at mining work might be properly tested. He averred, further, that it was necessary for a certain period to elapse to enable him to accustom himself to his altered conditions. (6) I heard parties on the minute and answers, and allowed the parties a proof of their respective averments and to the claimant a conjunct probation. The question argued before me was whether the proof should be limited to the question of the workman's earning capacity. Following Arnott v. Fife Coal Company, Limited, June 17, 1911, 48 S.L.R. 828, I allowed an open proof on the footing that certain questions as to the claimant's physical capacity might be necessary and competent, although in a general way evidence on this subject was clearly incompetent.”

The questions of law for the opinion of the Court were—“1. Was I right in allowing parties a proof of their respective averments, and to the claimant a conjunct probation. 2. Should I have restricted the proof to the wage-earning capacity of a one-eyed miner?”

Argued for the appellants—The Sheriff erred in allowing an unrestricted proof of respondent's averments. It should be restricted to a proof of the earning capacity of a miner whose eyesight was in the condition of that of the respondent as described in the report— Ball v. William Hunt & Son, Limited, [1912] AC 496, per Lord Shaw at p. 511, 49 S.L.R. 711, at p. 715. The respondent's averments in stat. 5 as to his physical condition and physical fitness for employment were inadmissible, because by paragraph (15) of Sched. I of the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) the medical referee's report was final on these points— Gray v. Shotts Iron Company, Limited, 1912 S.C. 1267, 49 S.L.R. 906; Arnott v. Fife Coal Company, Limited, 1911 S.C. 1029, 1912 S.C. 1262, 48 S.L.R. 828, 49 S.L.R. 902. By rule 10 of the Statutory Rules, dated 27th June 1907, applicable to medical referees in Scotland, the medical referee was bound to hear any statement the workman had to make with regard to his condition for work, and it must be assumed that he had done so here. But the medical referee's report was to the effect that he was fit for work. In an unreported case— Walker v. Fife Coal Company, Limited, July 18, 1911—a report to the effect that an injured limb “should be quite as strong as the sound one” was held to be conclusive as to the workman's fitness for work. The interlocutor in Arnott v. Fife Coal Company, Limited (cit.), 1911 S.C. at p. 1031, 48 S.L.R. at p. 830, allowed a proof at large per incuriam, such a proof being inconsistent with the opinions in the case. Carlin v. Stephen & Sons, Limited, 1911 S.C. 901, 48 S.L.R. 862, was referred to.

Argued for the respondent—The Sheriff was right in allowing an unrestricted proof. The medical referee's report was only final as to a workman's fitness for work where it was conclusive on the point —Gray v. Shotts Iron Company, Limited, cit., per Lord President (Dunedin), 1912 S.C., at p. 1272, 49 S.L.R., at p 908—but the report here only said that the respondent “ought now to be fit” to resume work. Moreover, it showed that the respondent's condition was now different from what it had been before the accident, and therefore the respondent ought to have an opportunity of leading proof with regard to his physical condition in order to show that his wage-earning capacity had been diminished. The interlocutor here should be in the same form as that in Arnott v. Fife Coal Company, Limited, cit.