Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), Schedule II (15), enacts—“Any committee, arbitrator, or judge may, subject to regulations made by the Secretary of State and the Treasury, submit to a medical referee for report any matter which seems material to a question arising in the arbitration.”

The Statutory Rules and Orders, June 27, 1907, Part V (20), enact—“Before making any reference the committee, arbitrator, or sheriff shall be satisfied, after hearing all medical evidence tendered by either side, that such evidence is either conflicting or insufficient on some matter which seems material to a question arising in the arbitration, and that it is desirable to obtain a report from a medical referee on such matter.”

The Clyde Spinning Company, Limited, Arthur Street, Bridgeton, Glasgow, applied in the Sheriff Court at Glasgow for review of the compensation payable to Margaret Grade, carder, 33 Mill Street, Bridgeton, Glasgow, in respect of injury sustained by her by accident arising out of and in the course of her employment with them. They alleged that her incapacity was due, not to the injury sustained by her, but to her unreasonable conduct in refusing to undergo a minor operation. The Sheriff-Substitute ( Mackenzie), as arbiter, diminished the weekly compensation payable. Both parties were dissatisfied, and Cases for appeal were stated.

The Case at the instance of the Employee stated—“The appellant on or about 15th April 1914, while in the employment of the respondents in their spinning-mill at Arthur Street, Bridgeton, Glasgow, met with an accident involving injuries to four fingers of her right hand. A memorandum of agreement between the parties was recorded at Glasgow on 10th June 1914, in terms of which the respondents agreed to pay the appellant compensation at the rate of 6s. per week.

“On 5th October 1914 the respondents, on the averments that the wounds to the appellant's fingers were then healed, and that any incapacity she was then under was and had for some time past been due to her unreasonable conduct in refusing to undergo a minor operation to restore in a large measure, or altogether, the use of her hand by freeing the scars which in their then state prevented free extension and flexion of the fingers, craved the Court to end or diminish the weekly payments to the appellant under said memorandum of agreement as from the date of said application and to find the respondents entitled to expenses.

The appellant in answer to said application averred that it was incompetent and irrelevant. She admitted that the wounds on her fingers were healed, but denied that her then incapacity was due to her unreasonable conduct in refusing to undergo a minor operation to recover the use of her hand. She explained that such an operation as the respondents wished her to undergo was not a minor operation but a very delicate one, and that there was no guarantee that it would have any beneficial effect on her hand, but would rather tend to leave the hand in a worse condition than before the operation. I heard parties' procurators on the relevancy, which question was raised on the report by the respondents' doctor, which was lodged in process, and before answer allowed a proof.

The application was heard and proof led before me on November 27, 1914, at which John Barlow, M.D., one of the medical referees appointed under said Act, sat with me as assessor, when the following facts were established:—1. That the appellant is a carder, residing at 33 Mill Street, Bridgeton, Glasgow, and the respondents are the Clyde Spinning Company, Limited, Arthur Street, Bridgeton, Glasgow. 2. That the appellant on 15th April 1914, while in the employment of the respondents, met with an accident arising out of and in the course of her said employment by having her hand caught in the fluted roller of a carding machine, by which the fingers have been rendered stiff and are maintained in a semi-flexed position. 3. That the appellant was incapacitated for work by said accident from its date. 4. That an operation for the purpose of freeing the scar so as to permit extension and flexion would probably have the effect of restoring the appellant's hand in a large measure to its former usefulness. 5. That the appellant refuses to undergo said operation on the advice of her doctor, who advised her against doing so. 6. That said operation is a minor one, and not attended with more risk than is involved in all operations; that there is a reasonable prospect of its diminishing or putting an end to the appellant's incapacity. 7. That said operation involves the use of anæsthetics.

I found that it had not been established by the evidence led whether or not there was any special risk in the case of the appellant in the use of anæsthetics. I therefore, in hoc statu, under the provisions of Schedule II, paragraph 15, of the Act, remitted to David Newman, M.D., one of the medical referees under said Act, to examine the appellant, and to report whether there would be any risk to appellant more than ordinary in her having to undergo an operation under anæsthetics. Dr Newman reported as follows—‘I examined Margaret Gracie to-day, and find her to be Suffering from an injury to the right hand, as described in the medical reports. The risk of

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taking an anæsthetic is not more than ordinary, but I consider that an operation would be of little benefit, and that the injury to the hand is permanent.’

I heard parties' procurators on said report, and at the debate I was asked on behalf of the respondents to disregard the opinion expressed by the medical referee in his report that ‘an operation would be of little benefit, and that the injury to the hand is permanent,’ and to delete it from the report on the ground that he had gone beyond the terms of the remit to him.

“I issued an award on 17th February 1915, and held that I could not delete said expression of opinion from the report of the medical referee, but that neither could I take said opinion as a factor in the case, as it had gone beyond the terms of the remit, which was confined to a point which the other evidence had not made clear. I therefore found that ‘the risk of taking an anæsthetic is not more than ordinary’ in the case of the appellant, and in respect (1) that by the proposed operation the appellant's total incapacity might have been modified to partial incapacity, and (2) that she had refused to undergo such operation, I diminished the weekly compensation from 6s. to 5s., and found the appellant liable to the respondents in expenses, modified to the sum of £5, 5s.”

The questions of law for the opinion of the Court were—“1. Was the remit to the medical referee competent in the circumstances? 2. Was I, in the circumstances, justified in reducing the compensation?”

The Case at the instance of the Employers, after the same narrative, mutatis mutandis, submitted these questions of law— “1. Is the respondent, by her refusal to undergo the said operation, precluded from insisting on payment of compensation? 2. In view of the facts found was I bound to end or suspend the respondent's compensation?”

Argued for the employee—(1) The arbiter had power to remit to a referee when there was evidence which was insufficient or conflicting on a point of importance in the case—Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), Schedule II (15); Statutory Rules and Orders, June 27, 1907, Part V (20)—but not when there was no evidence— Carroll v. Gray & Sons, 1910 S.C. 700, 47 S.L.R. 646. Here there was no evidence on the question of risk in the use of anæsthetics. (2) When the Sheriff did remit, he was bound to consider the whole of the report. (3) The arbiter should not have diminished the compensation. The question for him to consider was whether incapacity was due to the original injury, or was due to a nova causa interveniens, the workman's unreasonable conduct in refusing to undergo an operation. He had considered not this question but the question whether the workman's conduct was unreasonable or not. The evidence given in the facts stated could only lead to the conclusion that incapacity was not caused by unreasonable conduct— Sweeney v, Pumpherston Oil Company, Limited, June 23, 1903, 5 F. 972, 40 S.L.R. 721; Devlin v. Chapel Coal Company, Limited, 1915 S.C. 71, per Lord Mackenzie at p. 78, Lord Skerrington at p. 79, 52 S.L.R. 83, at p. 87.

Argued for the employers—(1) Remit to a referee was competent. The evidence was conflicting on the question whether the operation was a reasonable one, and the effect of the use of anæsthetics was part of that question. (2) The referee's function was to answer the questions put to him, and the arbiter was right in disregarding his report so far as it went beyond the remit. (3) The question whether incapacity was due to the injury or to subsequent unreasonable conduct was one for the arbiter. He had considered it, and there was evidence on which he was entitled to hold that incapacity was due to unreasonable conduct— Sweeney v. Pumpherston Oil Company, Limited ( supra), per Lord President at 5 F. 974, 40 S.L.R. 723; Donnelly v. William Baird & Company, Limited, 1908 S.C. 536, 45 S.L.R. 394. Devlin v. Chapel Coal Company, Limited ( cit.), had no bearing on the present case.