Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), Second Schedule, sec. 5, as applied to Scotland, enacts—“A [sheriff] may, if he thinks fit, summon a medical referee to sit with him as assessor.”

Alexander Cross & Sons, Limited, seed merchants, Glasgow, appellants, being dissatisfied with an award of compensation under the Workmen's Compensation Act 1906 in favour of Mrs Jane Williamson or Connelly and others, respondents, by the Sheriff-Substitute ( Mackenzie) at Glasgow, appealed by Stated Case.

The Case stated—“The following facts were established:—1. That the respondent is the widow of the deceased Joseph Connelly and resides at 8 Fleming Street, Glasgow, and sues as an individual and as tutrix of her pupil children, Lizzie, Margaret, Mary, Jeanie, and John Connelly, all residing with her; and that the appellants are seed merchants and fertiliser manufacturers, having their registered offices at 19 Hope Street, Glasgow, and their works at Port Dundas, Glasgow. 2. That the said deceased Joseph Connelly entered the service of the appellants a few days prior to 13th January 1916 as a labourer; that on said 13th January 1916, while he was in such employment, a slate fell from a building in said works from a considerable height and struck his left foot. 3. That the said deceased stopped working for a short time, but resumed and finished his shift; that on arriving home he informed his wife, the respondent, of the accident, and proceeded to change his boot and socks and bathe his foot, when she observed that the sock was sticking into a wound on the foot. 4. That the said deceased attended to his work on the two following days, Friday and Saturday, and worked a full night shift on Sunday; that on Monday night he went again to work, but was brought home unwell by the assistance of a fellow workman, at 4 a.m. on the morning of Tuesday, 18th January 1916, when he seemed to be ill and shivering, and when swelling was observed on his foot, which was put under a cage, although no external wound was visible. 5. That the deceased was treated at home till the Friday, 21st January 1916, when he was removed to the Western Infirmary; that he died there on the afternoon of Sunday, 23rd January 1916, from blood poisoning; that although the external injury to the deceased's foot had disappeared, there is reason to infer that the blood poisoning from which he died was occasioned by the injury to his foot; that a post mortem examination was held, at which such connection was not established in the opinion of the surgeon who held it, and in whose opinion it was due to muco-pus in the lungs, in respect that there was no evidence of there having been suppuration at the site of the injury; that the house surgeon observed swelling of the foot, but no signs of suppuration; that it is the opinion of the medical assessor that the death is explicable on the evidence of the accident, and that said accident was inferentially a contributory cause of the death. 6. That the wages of the deceased amounted to an average of about 32s. 1d. per week, which is the average wage of workmen in the same grade of employment; and that the respondent was wholly dependent on the deceased. I found in law—(1) that on the above facts it may be inferred that the death of the said Joseph Connelly was caused by accident to his left foot; (2) that the said accident arose out of and was in the course of the deceased's said employment; and (3) that the appellants are liable in compensation to the respondent in respect of said accident, in respect of her total dependency on the said deceased. I assessed said compensation at the sum of £250, awarded same accordingly, and appointed said sum to be paid into Court to await the orders of the Court. I found the appellants liable in expenses.”

To his award the Sheriff-Substitute appended the following

Note.—“I have had considerable hesitation in this case, as the question is purely a medical one. I am advised, however, by the medical assessor that although Dr Wilson's opinion, which is entitled to great respect, is adverse to the theory of blood poisoning having arisen from the injury to the foot, there is yet on the whole evidence reason for supposing that there was such a connection. Dr Wilson tells us that the foot was not microscopically examined at the post-mortem, and the evidence seems to show that there had been a distinct lesion of the foot at the time of the accident, although eleven days afterwards the signs of this may have disappeared. The evidence of pain and tenderness and swelling in the region of the foot is quite distinct throughout. There is no clear proof of any novus actus interveniens, and therefore I am led to the conclusion that this injury was inferentially the cause of the man's death. I take the average wage as at five shifts per week, 5s. 10d. being paid for day shifts and 7s. for night shifts. This works out at the rate of 32s. 1d. per week, and gives the total sum of compensation which I have awarded.”

The questions of law were—“1. Whether the arbitrator was entitled to incorporate in his findings in fact and to rely on the medical assessor's opinion on the evidence that the death was explicable on the evidence of the accident, and that the said accident was inferentially a contributory cause of the death? 2. Whether there was evidence upon which it could competently be found that the death of the said Joseph Connelly was caused by an accident to his left foot?”

Page: 144↓

Argued for the appellants—The arbitrator had not found as a fact that the accident was the cause of death, but had merely found that it might be inferred to be the cause of death. That was simply the theory of the medical assessor, and the arbitrator had not made it a finding. If so, then the other facts found in the case were in contradiction of that theory, and consequently there was no evidence for a finding in fact which would justify the award. The fact that the medical assessor stated that the accident was probably a contributory cause of death was not enough; there must be evidence to the effect that the accident was the probable cause of death, and the case should be remitted for a finding as to whether the accident was the probable cause of death or not. If the proved facts were equally consistent with an inference favourable to the workman and an inference against him the onus of proof was not discharged— M'Kenna v. Niddrie and Benhar Coal Company, 1916 S.C. 1, 53 S.L.R. 1; Pomfret v. Lancashire and Yorkshire Railway Company, [1903] 2 KB 718; Barnabas v. Bersham Colliery Company, 1910, 48 S.L.R. 727; Euman v. Dalziel & Company, 1913 S.C. 246, 50 S.L.R. 143. The medical assessor's theory was not evidence. Booth v. Carter, 1915, 8 B.W.C.C. 106, and Peill & Sons v. Payne, 1915, 8 B.W.C.C. 111, were referred to. The first question should be answered in the affirmative and the second in the negative.

Argued for the respondents—The medical referee's functions differed from those of the medical assessor. As referee the medical man was final on the questions referred to him: as assessor he merely stated opinions which the arbitrator in the whole circumstances might or might not adopt. Booth's case ( cit.) was not in point. Here the arbitrator had adopted the medical assessor's opinion, and there was sufficient in the evidence to justify his so doing. Smith v. Foster, 1913, 6 B.W.C.C. 498; Lewis v. Port of London Authority, 1914, 7 B.W.C.C. 577; Hawkins v. Powell's Tillery Steam Coal Company, [1911] 1 KB 988, were referred to. Both questions should be answered in the affirmative.