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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Clark v. George Taylor & Co. [1914] ScotLR 418 (06 March 1914)
URL: http://www.bailii.org/scot/cases/ScotCS/1914/51SLR0418.html
Cite as: [1914] SLR 418, [1914] ScotLR 418
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SCOTTISH_SLR_Court_of_Session
Page: 418↓
Court of Session Inner House First Division.
[Sheriff Court at Ayr.
v.
Facts:
On 7th October 1910 a workman was injured by accident arising out of and in the course of his employment. His employers admitted liability and paid him compensation down to 11th July 1913, when they ceased payment on the ground that he had recovered from the effects of his injuries. The workman then sent a memorandum of an alleged agreement to be recorded; the employers objected to the recording and applied for review of the weekly payments. The proceedings for warrant to record were sisted till the issue of the result of the application for review. On the motion of both parties a remit was made to a medical man to examine the workman and to report “(1) whether the defender has recovered from the effects of the injury to his body on 7th October 1910; (2) whether the defender is now, so far as said injury is concerned, fit to resume his employment as a miner and to earn full wages; (3) if not, whether he is fit for the work of a labourer on the surface, or for any other employment.” On 8th October 1913 the medical man examined the workman and reported—“(1) The defender has recovered from the direct effects of his injury, but not from the indirect. (The injury having thrown the man out of work for a time, his age—sixty-three years—coupled with his disposition to obesity have told against him, so that from lack of continuity of activity he has become less and less fit for labour of any kind.) (3) He is not fitted to undertake any work other than that of a more or less sedentary character—for example, a watchman.” In response to further questions the medical man added on 15th November—“The man's incapacity for work has arisen from the fact that he has been doing no hard work during the last three years.” It was admitted that the workman had been incapacitated for work for a time by the accident, and that he had consequently been doing no hard work since 7th October 1910.
Held ( dissenting Lord Johnston) that the arbitrator was not entitled on these facts to find that the workman's incapacity for work, resulting from his injuries on 7th October 1910, had ceased on 8th October 1913, and to end as at that date the compensation.
Hugh Clark, miner, Ayr, appellant, being dissatisfied with a determination of the Sheriff-Substitute at Ayr (Valentine), acting as arbitrator under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), in an arbitration between him and George Taylor & Company, coalmasters, Ayr Colliery, respondents, appealed by Stated Case.
The Case stated—“This is an arbitration in which the said George Taylor & Company crave the Court to review, and on such review to end or diminish, as at 11th July 1913, weekly payments of twelve shillings and elevenpence claimed by the said Hugh Clark from the said George Taylor & Company, from the said 11th day of July 1913, during the total incapacity for work of the said Hugh Clark resulting from his bodily injuries, caused by his having been, on 7th October 1910, when he was employed by the said George Taylor & Company as a coal miner in Drumley Pit, Ayr Colliery, Ann-bank, accidentally crushed by a fall of coal at the coal face in said pit, the said accident having arisen out of and in the course of his said employment.
“The following facts were admitted, namely, that the said George Taylor & Company admitted liability to pay compensation, in terms of said Act, to the said Hugh Clark, and made an agreement with him to pay him compensation at the rate of twelve shillings and elevenpence weekly; that they paid him said sum per week from the date of said accident (7th October 1910) till the said 11th day of July 1913, when they ceased payment, alleging that the said
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Hugh Clark had then recovered from the effects of said injuries, and was no longer incapacitated for work in consequence thereof; that on 14th August 1913 the law agent of the said Hugh Clark sent a memorandum of an alleged agreement made by him with the said George Taylor & Company to the Sheriff-Clerk of Ayrshire, in order that the memorandum might be recorded by the Sheriff-Clerk in the Special Register of the Sheriff Court of Ayrshire at Ayr, and the Sheriff-Clerk, on the last-mentioned date, sent a copy of the memorandum to the said George Taylor & Company in terms of paragraph 11 (1) of the Act of Sederunt, dated 26th June 1907; that on 22nd August 1913 the said George Taylor & Company sent notice to the Sheriff-Clerk that they objected to the recording of the memorandum in the Special Register on the grounds set forth in their notice; that on 29th August 1913 the said Hugh Clerk lodged a minute craving the Court for a warrant to the Sheriff-Clerk to record the said memorandum in the Special Register, a copy of which minute was duly served on the said George Taylor & Company, who on 12th September thereafter presented an application for review of the weekly payments by them to the said Hugh Clark as mentioned at the beginning of this Stated Case; that on the motion of parties the said proceedings for warrant to record the said memorandum were sisted till the issue of the said application for review of the said weekly payments; that in this application a remit, on the motion of parties, was, on the 2nd October 1913, made to Dr A. Ernest Maylard, No. 12 Blythswood Square, Glasgow, to examine the said Hugh Clark, and to report to the Court (1) ‘Whether the defender' (Hugh Clark) ‘has recovered from the effects of the injury to his body on 7th October 1910? (2) Whether the defender’ (Hugh Clark) ‘is now, so far as said injury is concerned, fit to resume his employment as a miner and to earn full wages? (3) If not, whether he is fit for the work of a labourer on the surface, or any other employment?’ That on 8th October 1913 Dr Maylard examined the said Hugh Clark, and reported to the Court as follows:—‘In reply to the questions contained in the joint-minute—(1) The defender’ (Hugh Clark) ‘has recovered from the direct effects of his injury, but not from the indirect (The injury having thrown the man out of work for a time, his age—sixty-three years—coupled with his disposition to obesity have told against him, so that from lack of continuity of activity he has become less and less fit for labour of any kind.) (3) He is not fitted to undertake any work other than that of a more or less sedentary character—for example, a watchman.’ That parties’ agents were on 6th November 1913 heard on Dr Maylard's report, and on 11th November 1913 I issued an interlocutor and note stating that the exact meaning of Dr Maylard's first answer was not clear to my mind. From the report I could not determine whether Dr Maylard meant that Clark was now incapacitated from work other than that mentioned in the answer to question 3 by age and obesity, his obesity having increased on account of the fact that he had been doing no hard work during the last three years; or whether Dr Maylard meant something more than that, viz., that Clark had, made so slow a recovery, and had for so long a period been incapable of any active exertion, that the natural vigour of his system had become impaired by his long illness and weakness—with the result that he was now incapable of work other than that mentioned in the answer to question 3; and that thereafter, in reply to a letter dated 14th November 1913, from the law agents of the said George Taylor & Company, written by joint consent of the parties, Dr Maylard on 15th November 1913 wrote them as follows:—‘In reply to your letter of the 14th inst., the correct interpretation of my statement is embraced in an affirmative answer to the Sheriff's first question—that the man's incapacity for work has arisen from the fact that he has been doing no hard work during the last three years.’ It was admitted at the Bar that the said Hugh Clark had been incapacitated for work for a time by the accident, and that he had consequently been doing no hard work since 7th October 1910. “After hearing parties' agents on Dr Maylard's report and explanatory letter, I, on 2nd December 1913, in respect of the said answers of Dr Maylard and the admissions of the parties, found in fact that the said Hugh Clark by 8th October 1913 was still affected with partial incapacity for work; that his said partial incapacity for work was due to age and obesity; that the said Hugh Clark had been incapacitated for work for a time by the accident, and that he had consequently been doing no hard work since 7th October 1910; that the said Hugh Clark had a natural disposition to obesity; and that his obesity had increased between 7th October 1910 and 8th October 1913 owing to his having been doing no hard work; found that his partial incapacity on 8th October 1913 did not result from the injuries sustained by him on 7th October 1910; I therefore found that the incapacity for work of the said Hugh Clark, resulting from the injuries sustained by him on 7th October 1910 had ceased on 8th October 1913, and I, accordingly, ended the compensation payable by the said George Taylor & Company to him as at said date. I also found the said Hugh Clark liable to the said George Taylor & Company in six pounds six shillings sterling of modified expenses.”
The question of law for the opinion of the Court was—“Was I entitled on the facts to find that the said Hugh Clark's incapacity for work, resulting from the bodily injuries sustained by him on the 7th day of October 1910, had ceased on the 8th day of October 1913, and to end, as at the last-mentioned date, the compensation payable to him by the said George Taylor & Company in respect of said injuries.”
Argued for appellant—Although in an original application the onus was on the workman to show that he was injured by
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accident arising out of and in the course of his employment, and similarly in a case of supervening incapacity to show that the incapacity was due to the original accident— M'Ghee v. Summerlee Iron Company, Limited, 1911 S.C. 870, 48 S.L.R. 807—on the other hand, where, as here, there had been admittedly an accident and consequent liability but no admission of recovery, the onus was on the employer to show that the old cause of incapacity was gone and that the workman had recovered from his injuries— M'Callum v. Quinn, 1909 S.C. 227, 46 S.L.R. 141. In any case the accident here caused the idleness, the idleness caused or was a cause of obesity, and the obesity caused or was a cause of the incapacity. Where there was a chain of causation unbroken by any new intervening cause, so that the incapacity did in fact result from the injury ( i.e., succeed as a consequence of the injury), the employer was liable, and it was immaterial whether the incapacity was a probable consequence or not— Brown v. George Kent, Limited, [1913] 3 KB 624; Dunham v. Clare, [1902] 2 KB 292; Golder v. Caledonian Railway Company, November 14, 1902, 5 F. 123, 40 S.L.R. 89; Malone v. Cayser, Irvine, & Company, 1908 S.C. 479, 45 S.L.R. 351; Ystradowen Colliery Company, Limited v. Griffiths, [1909] 2 KB 533; Clover, Clayton, & Company, Limited v. Hughes, [1910] AC 242, Lord Loreburn, L.C., at 245; Fenton v. Thorley & Company, Limited, [1903] AC 443, Lord Lindley at 454–6; Garnant Anthracite Collieries, Limited v. Rees, 1912, 5 But. W.C.C. 694; Drylie v. Alloa Coal Company, Limited, 1913 S.C. 549, 50 S.L.R. 350. By way of contrast they referred to Upper Forest and Worcester Steel and Tinplate Company, Limited v. Grey, 1910, 3 But. W.C.C. 424, where the idleness was not caused by the accident. Argued for respondents—The onus was on the workman to show that he was incapacitated by injury from accident— M'Ghee v. Summerlee Iron Company, Limited ( cit. sup.); Darroll v. Glasgow Iron and Steel Company, Limited, 1913 S.C. 387, 50 S.L.R. 226. In M'Callum v. Quinn ( cit. sup.) there was a recorded memorandum of agreement, and this was the foundation of the decision (Lord Pearson at p. 229). The importance of whether or not there was a recorded memorandum was illustrated by comparing such cases as Donaldson Brothers v. Cowan, 1909 S.C. 1292, 46 S.L.R. 920, and Southhook Fireclay Company, Limited v. Laughland, 1908 S.C. 831, 45 S.L.R. 664. The obesity did not result from the injury. The injury did not cause the obesity. The man's natural vigour was not impaired by the accident. It was necessary for the claimant to do more than show that but for the accident he would have had capacity. He must show that the cause of the incapacity was the accident— Dunnigan v. Cavan & Lind, 1911 S.C. 579, Lord Dunedin at p. 582, 48 S.L.R. 459; Euman v. Dalziel & Company, 1912 S.C. 966, 49 S.L.R. 693; Paton v. William Dixon, Limited, 1913 S.C. 1120, 50 S.L.R. 866; Holt v. Yates & Thom, 1909, 3 But. W.C.C. 75; Malone v. Cayzer, Irvine, & Company ( cit. sup.); Huggins v. Guest, Keen, & Nettlefolds, Limited, 1913, 6 But. W.C.C. 80; Ystradowen Colliery Company, Limited ( cit. sup.); Dunham v. Clare ( cit. sup.); Golder v. Caledonian Railway Company ( cit. sup.); Brown v. George Kent, Limited ( cit. sup.); Simpson v. Byrne, 1913, 6 But. W.C.C. 455. Even if the obesity were due to the accident, the incapacity was not found to have arisen from obesity alone, but from age and obesity. It could not be said the accident caused the age.
At advising—
Now it is well-settled law that if the indirect results of the accident still remain compensation is still due, for complete capacity has not been restored; and. therefore the medical gentleman's answer was in the negative to the two questions put to him, because I take it that it cannot now be gainsaid that under this statute, to the language of section 1, which speaks of injury by accident caused to a workman, is to be added the language of the First Schedule, which speaks of incapacity which results from the injury. “The word ‘results’ there, of course, does not mean succeeds in point of time. It means ‘succeeds as a consequence of the injury,’ and not, … as either the necessary or the natural or the probable consequence of the injury, but as the consequence in fact.” These are the words of Lord Justice Buckley in the case of the Ystradowen Colliery Company, Limited v. Griffiths, [1909] 2 KB 533, at p. 537, to which we were referred, and in my judgment they lay down the law with perfect precision.
The arbitrator, however, desired to have further information upon the question put, and a second remit was made to the medical gentleman, whose report was, briefly stated, as follows:—That the workman had a natural tendency to obesity which was checked by active work; that the result of his injury was to incapacitate him from active work; that the result of his enforced abstention
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Now no doubt if the workman had to show that his incapacity to return to his former occupation was the direct and immediate result of the accident which befell him, he would have a very difficult case; but the law throws upon him no such obligation. All that he has to show is that his incapacity is due de facto to the accident which happened, and not to some new cause intervening; and however remote, however indirect, however improbable, however unnatural the result may be, nevertheless, if it is the result of the accident which befell him, he is entitled to have compensation. That appears to me to be the law as laid down in the case of Dunham v. Clare, [1902] 2 KB 292, by the Master of the Rolls, where he says, at p. 296—If incapacity “in fact resulted from the injury it is not relevant to say that ‘incapacity’ was not the natural or probable consequence thereof. The question whether death resulted from the injury resolves itself into an inquiry into the chain of causation. If the chain of causation is broken by a novus actus intcrveniens, so that the old cause goes and a new one is substituted for it, that is a new act which gives a fresh origin to the after consequences.” “The only question to be considered is—Did … incapacity in fact result from the injury?”
Now here the chain of causation appears to me to be complete and unbroken. The accident occurs on the 7th October 1910. The direct consequence is that the man is incapacited from active employment. The consequence of that is that his natural tendency to obesity is accelerated and increased. The natural consequence of that is that be is unfit to go down the mine and toil at the working face—that he is only capable of being employed at other and less active work. That was substantially the chain of causation in the case of Golder v. Caledonian Railway Company, (1902) 5 F. 123, where the workman was injured about the head and back and suffered shock, the shock lowered his system, his lowered system rendered him an easy victim to a disease which was already upon him—which would ultimately, the Court found, have carried him off sooner or later. The effect of the lowering of his system due to the accident was to render him a rapid and easy victim to this disease, and it was held that his death was the result of his injuries.
The same principle, it appears to me, was laid down by Lord President (Dunedin) in the case of Dunnigan v. Cavan & Lind, 1911 S.C. 579, where he says—“The true question on the merits here is whether the man died from the accident or from a new cause which was introduced, viz., his own foolish action—to say nothing more—in persisting in leaving the hospital and going to his own house when he was suffering from acute pneumonia.” The question therefore always is—Has there been a fresh cause intervening, or is the man's incapacity the result—it may be remote and indirect—of the injuries which he formerly suffered? In this case the facts appear to me to be substantially identical with the facts which were presented in the case of Golder. For the medical gentleman here reports that the man's incapacity for work “has arisen from the fact that he has been doing no hard work during the last three years.” And the case adds—“It was admitted at the Bar that the said Hugh Clark had been incapacitated for work for a time by the accident, and that he had consequently been doing no hard work since 7th October 1910.”
With these findings in fact before him, with a chain of causation which I repeat was complete and unbroken, the arbitrator “found that the incapacity for work of the said Hugh Clark, resulting from the injuries sustained by him on 7th October 1910, had ceased by 8th October 1913.” That appears to me to be a distinct non sequitur from the arbitrator's own finding to the effect that the man had been incapacitated for work by the accident, that he had consequently been doing no hard work since 7th October, that he had a natural disposition to obesity, and that his obesity had increased owing to his having been doing no hard work.
The findings of the arbitrator therefore appear to me to state clearly a chain of causation, complete and unbroken, to negative completely the intervention of a nova causa, and therefore to lead to a conclusion exactly the opposite of that at which he has arrived. I am therefore for answering the question which he puts to us in the negative.
The question of his employers' continued liability for statutory compensation to Clark came up on an application to record and a counter application to review. The procedure has been unusual. There has been no proof, but by consent a remit to a medical referee, and I assume that the parties are bound to accept what the referee says, as in lieu of proof. But unfortunately the referee's report leaves us without explanation as to essential facts, some of which were not within his province, as, for
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The referee answers three questions, and he afterwards explains his answers in reply to a letter from the Sheriff. Then there is an admission by the parties. And then the Sheriff gives his findings in fact and his conclusion. The greatest difficulty is created by the so-called admission by the parties, which to me is not intelligible. It was admitted that Clark had been incapacitated for work for a time by the accident, and that he had been “ consequently” doing no hard work since the accident. As we are not told what time or anything else about the man, the scope and effect of the admission is to seek. I could understand the sequence, but the consequence needs explanation.
The finding of the Sheriff was that the incapacity of Clark for work resulting from the injuries sustained on 7th October 1910 had ceased by 8th October 1913, and he accordingly ended the compensation. The question is, was he entitled on the facts to arrive at that finding? I think that he was, and that we have no right to disturb his award.
In a case of this kind there are always two questions—1st, Did the evidence justify the Sheriff's findings in fact? But it is not for this Court to review by way of appeal the Sheriff's findings in fact. All that we can ask ourselves is, had the Sheriff evidence before him on which he could reasonably find in fact as he did?
2nd, Did the facts found by the Sheriff justify his conclusion in law—in other words was the Sheriff here, on the facts as stated by him, justified in finding that incapacity had ceased and ending compensation? That is a question for this Court.
The Sheriff's findings in fact, altering somewhat their sequence, were—1. Clark had been incapacitated for a time by the accident. 2. Consequently he had been doing no hard work since the date of the accident, 7th October 1910. 3. Clark had a natural disposition to obesity. 4. His obesity had increased between 7th October 1910 and 8th October 1913. 5. This increase was owing to his having been doing no hard work during that period. 6. On 8th October 1913 he was still partially incapable for work. 7. This partial incapacity was due to his advanced age and to his obesity at the date last mentioned. 8. It did not result from the injuries sustained by him on 8th October 1910.
Subject to a disturbing factor to which I shall afterwards refer, I do not think that any of these findings in fact are questionable or can be altered by us. That we should do so we must be able to say (7) that this partial incapacity was not accounted for by age and obesity, but (8) that it did result from the injuries received on 8th October 1910—and that, so clearly, that we are able to say that the Sheriff has gone against evidence, or else to say that the Sheriff has misdirected himself in law and has drawn a wrong conclusion from the facts—I do not think that there is enough to justify us in doing so.
The Sheriff was told by the doctor that Clark had recovered from the direct effects of the injury, but not from the indirect, with the added explanation:—“The injury having thrown the man out of work for a time, his age—sixty-three years—coupled with his disposition to obesity have told against him, so that from lack of continuity of activity he has become less and less fit for labour of any kind.”
This is, I think, quite clear, but the Sheriff was not quite satisfied that he understood what the doctor meant by the distinction “direct” and “indirect.” He asked information, and in reply the doctor affirmed the proposition that Clark was now incapacitated for anything except light work by age and obesity, his obesity having increased from the fact that he has been doing no hard work during the last three years, and negatived the proposition that Clark had made so slow a recovery and had for so long a period been incapable of any active exertion that the natural vigour of his system had become impaired by his long illness and weakness, with the result that he was now incapable of any but light work.
On that assumption I think that the Sheriff had enough before him to justify his conclusions in fact, or it may be in fact and law, 7 and 8. It is immaterial whether we would have come to the same conclusion, though personally I should have done so.
The only difficulty arises from the very unsatisfactory finding to which I have already alluded, based on an equally unsatisfactory admission of the parties, viz., that Clark had been incapacitated for a time by the accident, and consequently had been doing no hard work since 7th October 1910. The one thing is not necessarily or logically a consequence, though it may be a sequence of the other. But though I should have preferred to know definitely what is the meaning of the admission, and of the finding of the Sheriff based upon it, I do not think that the certain vagueness which this defect leaves affects the conclusion of the Sheriff when the statement of the medical referee is regarded.
I do not quite know whether your Lordship considers that the Sheriff has merely drawn a wrong conclusion, and one which could not reasonably have been drawn from the facts, or whether you think that misapprehending the law he has equally misconstrued the facts.
Under the combined operation of the Act and the First Schedule, in order to support a claim for compensation, incapacity for work must result from injury occasioned by accident arising out of and in the course of the employment. The Sheriff thinks that the partial incapacity here results not from the injury occasioned by the accident, but from age and increased obesity. The opposite view is that there is an unbroken chain of causation. The accident caused the injury, the injury caused the abstinence from work, the abstinence from work caused the increase of obesity, and the increased obesity
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The phrase the chain of causation was first, I think, used in Dunham v. Clare, [1902] 2 KB 292, where it was found that death may be the result of the injury even though in fact it may neither be the natural or the probable consequence of it. But consider the circumstances, and one at once sees how close and direct even the unexpected consequence was. A man had received an injury to his toe, erysipelas in the wound might have foliowed immediately, or at least within a week of the injury. It did not do so, but it supervened about a fortnight after, in which case, according to the best opinion, it must have been related, not to the original wound, but to a reopening of the wound, probably caused by the man walking to and fro to hospital to get his wound dressed. The present case is at least very wide of these circumstances.
Again, in Ystradowen Colliery Company, [1909] 2 KB 533, we have a still more instructive case. Disease ensued upon the accident, though not directly related to the injury, as thus:—A workman was severely injured by a fall of the roof. He had to drag himself home a considerable distance on an inclement evening in his suffering and weakened condition. He caught a severe cold, which developed into bronchitis, and this produced chronic asthma, from which he had not before suffered, and he became thereby incapacitated from work. The essential question whether the incapacity was in fact caused by the accident was presented in this form—Was the man's present condition the result of the accident in the sense that it was occasioned by his debilitated condition immediately after the accident, and so occasioned by the accident? And it was answered in the affirmative. There is no indication in the statement of the case of anything so remote from the accident and the injury as we have here.
There have also been some cases in Scotland more or less bearing on the point. In Malone, 1908 S.C. 479, where there was supervening insanity and suicide, the Court merely held that the case was not so clearly irrelevant as to exclude inquiry. In Euman's case, 1913 S.C. 246, a fall resulted in direct and painful injury to the ankle, but also in general shock to system. The injury to the ankle improved, but the patient continued to suffer and was in a low state. He was suddenly seized with acute internal pain and died of appendicitis. The Court held merely that there was evidence to support an award. There was continuous suffering, and no one could competently dissociate the final result from the general shock from the accident, though it had nothing to do with the patent external injury.
In the case of Dunnigan, 1911 S.C. 579, again, we get a distinction which exactly covers this case. It was there laid down that the Sheriff was not entitled to ask himself whether but for the accident death or incapacity would not have resulted, but only whether as matter of fact they did result from the accident.
The present case is only one where at best it may be said that but for the accident incapacity would not have occurred when it did, and not one in which it can be said as matter of fact that it did result from the accident.
For these reasons I do not think that there is any ground for disturbing the Sheriff's award.
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The Court pronounced this interlocutor:—“…
Answer the question of law in the Stated Case in the negative: Recal the determination of the Sheriff-Substitute as arbitrator, and remit to him to proceed as accords, and to deal with the question of expenses of new: Find the appellant entitled to expenses of the Stated Case.…”
Counsel for the Appellant— Moncrieff, K.C.— A. M. Stuart. Agents— Macpherson & Mackay, S.S.C.
Counsel for the Respondents— Horne, K.C.— Fenton. Agents— Simpson & Marwick, W.S.