Scottish Court of Session Decisions

We were referred to objections as to the procedure in respect of the provisions of the 15th paragraph of the First Schedule, which it was said had not been followed out. I do not think we are entitled to consider these questions of procedure at all, because the Stated Case bears that when the case was called before the arbitrator on 26th September 1917 “the agents for the parties intimated that in order to avoid the expense of a proof they had agreed, subject to my consent, to remit to the medical referee to decide whether there was any chance of respondent's incapacity recurring.” The arbitrator says that he approved of the remit, and accordingly the terms of the remit were adjusted and the medical referee made his report.

It seems to me that in that state of the facts, and having regard to the form of the Stated Case, there is no room whatever for raising the question as to whether the proper statutory procedure was followed out. We must take it that it was followed out, with the result that the medical referee made a report upon which the arbitrator was asked to proceed, and on which he ought to have proceeded in accordance with the law. That report bore that the workman was “in a good state of physical health and quite able for work, and his condition is such that he is fit for his ordinary or other work where the full power of a right-handed man is not required. There is still some risk of recurrence of incapacity to work owing to the condition of his right arm.” It appears from the case that his capacity to work was such that he was making an average weekly wage at least equal to what he had been making prior to the accident.

In that state of matters it is quite plain that the compensation, which had been in fact paid for only a fortnight after the accident, which took place on 27th January 1917, and had been in abeyance for several months, was quite properly in abeyance, and that there was no occasion whatever for it being again brought into operation at present, but that on the other hand there was a liability of recurrence of incapacity for work owing to the condition of the respondent's right arm due to the accident.

In these circumstances it seems to me that the proper course for the arbitrator was to have followed the rule laid down in Taylor's case, and to have pronounced a suspensory award so that if the recurrence does take place the parties can then come to the arbitrator, and by the necessary procedure get the question reopened and the amount of compensation due to the recurring incapacity determined.

I am therefore of opinion that we should answer the first question to this effect, that on the foregoing facts the arbitrator should have granted a suspensory award, and it follows from that that it is unnecessary to answer the second question.

Lord Dundas—It was competent to the learned arbitrator, instead of dismissing the application as he did, to keep it alive by means of a suspensory order, and I am of opinion that he ought to have done so. Whether or not the case of Taylor v. London and North-Western Railway Company, [1912] AC 242, was brought to his notice I do not know, but however that may be, I think the course he ought to have pursued is that which I have indicated. I am of opinion that we ought to answer the question in the way your Lordship suggests.

Lord Salvesen—I concur. The case as presented to the arbitrator was one in which the appellants sought to terminate entirely their liability in respect of the accident which happened to this miner on the 27th January 1917. The course which the proceedings took before the arbitrator was this—The parties being agreed on all the facts except the medical condition of the workman, who alleged that he had not fully recovered from the effects of the accident, and that he might become disabled later in consequence of the accident, agreed to refer that question to a medical referee instead of leading evidence by doctors on either side, and then possibly having to invoke a medical referee to settle the difference between them. It seems to me that that was very proper procedure with a view to saving unnecessary expense.

Then when the medical referee reported he negatived the extreme contention of the appellants, but his report otherwise indicated that the respondent was now quite able to work, that he was in a good state of physical health and fitted for his ordinary work or other work. It further appears from the admissions of parties that he had actually been in receipt for eight months or thereby of the full wages that he had earned before the accident.

I think that but for the case of Taylor the course which the learned arbitrator took would have seemed prima facie to be the right one; but in view of that case I think it was his duty to pronounce the suspensory award which he was asked by the appellants to pronounce, and that he ought not to have dismissed this application, leaving the parties at some future stage to bring up the question again, and so have made all this procedure of no avail.

I agree therefore with your Lordship in thinking that we ought to answer the first question in the affirmative.

Lord Guthrie—At first I thought the appellants had no interest to pursue this case, because it appears that the respondent was willing to have the arbitrator's dismissal of the appellants' application turned into the suspensory order, which the appellants maintain the arbitrator should have awarded. But this would not have met the appellants' interest, which was to have a judicial decision, which will be a guide to other arbitrators in similar circumstances. The respondent's willingness to have the award

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