Scottish Court of Session Decisions

The Scottish Co-operative Wholesale Society, Limited, appellants, being dissatisfied with a decision of the Sheriff-Substitute of Ayrshire at Kilmarnock ( Robertson) in an arbitration under the Workmen's Comensation Act 1906 (6 Edw. VII, cap. 58) between the appellants and Robert Dunn, respondent, appealed by Stated Case. The respondent died after the presentation of the appeal, but his executrix was sisted in his place.

The Case stated—“This is an arbitration under the Workmen's Compensation Act 1906, brought in the Sheriff Court of Ayrshire at Kilmarnock at the instance of Robert Dunn, blanket finisher, 60 Titchfield Street, Galston, now deceased, in which he craved the Court to grant warrant to the Sheriff-Clerk to record a memorandum of agreement alleged to have been entered into between the claimant and the respondents on 25th February 1922, by which the respondents agreed to pay to the claimant the sum of one pound per week, with the statutory additions, in respect of total incapacity in terms of the Workmen's Compensation Act 1906, and the Workmen's Compensation (War Additions) Acts 1917 and 1919. The said memorandum of agreement proceeded on a certificate, dated 20th January 1922 by the certifying surgeon appointed under the Factory and Workshops Act 1901, that the claimant, a workman under no legal disability, was suffering from dermatitis produced by dust or liquids, a disease coming within section 8 of the Workmen's Compensation Act 1906, and was thereby disabled from earning full wages at the work at which he was employed. The respondents objected to the said memorandum of agreement being recorded and after hearing the evidence in the case and parties' agents thereon I found the following facts proved:—1. That

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the claimant worked for nine years previous to the arbitration as a blanket scourer in the employment of the respondents at their mills at Galston. 2. That on 20th January 1922 he was certified by Dr Alexander W. Aird, the certifying surgeon appointed under the Factory and Workshop Act 1901, as suffering from dermatitis, produced by dust or liquids, a disease scheduled under section 8 of the Workmen's Compensation Act 1906. 3. That the respondents thereupon agreed to pay to the claimant the sum of £1 per week for total incapacity and did so down to 23rd June 1922. 4. That there was sufficient evidence apart from the aforesaid certificate that the claimant suffered from dermatitis caused by sulphur dust to which he was exposed in the course of his said employment. 5. That in December 1921 the doctor attending the claimant detected albuminuria and diagnosed nephritis. 6. That by June 1922 the claimant's dermatitis was no longer active, his skin being quiescent with a latent inflammatory condition. 7. That the claimant still suffers from dermatitis though it is not severe. 8. That from December 1921 the claimant continued to develop nephritis till it became acute and permanent. 9. That the claimant's dermatitis was severe, long-continued, and suppurating, and resulted from long-continued exposure to sulphur dust in the course of his said employment. 10. That it is possible in occasional cases for nephritis to be caused by blood poisoning resulting from absorption of toxic matter during the currency of severe suppurating long-continued dermatitis, though this is rare. 11. That the claimant's nephritis resulted from his primary ailment of dermatitis. 12. That the claimant was carefully treated and followed the treatment prescribed. 13. That in consequence of the said nephritis the claimant has been since 23rd June 1922 totally incapacitated. 14. That apart from nephritis the claimant would on account of dermatitis be disabled for employment in the process in which the dermatitis was contracted.

Upon the foregoing facts I found the respondents liable to the claimant in compensation for total incapacity in terms of the Workmen's Compensation Act 1906, from 23rd June 1922, and granted authority to the Sheriff-Clerk to record the memorandum of agreement in terms of the prayer.

The questions of law for the opinion of the Court were—“1. On the facts found proved was I entitled to hold that the claimant was entitled to compensation for incapacity ( a) caused by nephritis, or ( b) resulting from dermatitis? 2. On the facts proved was it competent for me to grant warrant to record the said memorandum of agreement?”

In a note appended to his award the arbitrator, inter alia, stated—“… Two minor points raised by the defence require to be first dealt with. It is true that the schedule under the heading, ‘Description of Disease or Injury’ couples with the great majority of enumerated diseases in each case the sequelœ thereof, while in a few such as dermatitis the sequelœ are poin—tedly omitted. I am of opinion that this merely means that the sequelœ included in the schedule are themselves certifiable with all the consequent statutory advantages to the workman. The sequelœ of dermatitis on the other hand are not certifiable. This distinction is probably because the sequelœ included in the schedule are an ascertained class, while the sequelœ of diseases 11, 12, 14, 16, 17–24 are not. I cannot conclude that the omission indicated either (1) that there are medically no sequelœ of dermatitis, or (2) that there is legally no claim for incapacity resulting from such sequelœ. Similarly I am of opinion that there is no obstacle to pursuer's claim in the Statutory Order 1923, No. 6, dated 2nd January 1923. For the proof satisfies the proviso. I hold, in fact, that the claimant's dermatitis resulted from long-continued exposure to sulphur dust in the industry in which he was engaged at the time of his disablement, although his dermatitis, unless nephritis be its sequela, has disabled him only from employment in that particular process in which the disease was contracted or other processes of a like nature. The claimant cannot have been sensitive to sulphur dust or he would have been attacked years before. The claimant's medical witnesses maintain that nephritis has resulted from blood-poisoning from severe suppurating dermatitis. The respondents' witnesses maintain that this is medically impossible, or if theoretically possible, has never been known and is not in fact the case. In these circumstances I considered it unsafe for me to attempt to decide between these two opinions and have remitted the proof to the official medical referee with the following question:—‘Whether the nephritis from which the claimant has been admittedly suffering since the beginning of the year 1922 could be caused by blood poisoning resulting from severe long-continued and suppurating dermatitis?’ To that question the medical referee replies thus—‘It is possible in occasional cases for nephritis to be caused by blood poisoning resulting from absorption of toxic substances during the currency of severe long-continued and suppurating dermatitis, as, for example, in extensive burning by fire or scalding fluids, but it is comparatively rare in dermatitis arising from the effects of sulphur compounds.’ That is the only question I asked the learned referee and I accept his reply and hold in fact accordingly. The question remaining for me is whether this is one of those rare cases. It is not possible for the respondents to maintain or even suggest that the nephritis is the cause of the dermatitis. Dr Aird's certificate that the dermatitis was caused by sulphur dust has been accepted since its date, and acted upon as correct, no appeal having been taken. The earliest diagnosis of nephritis is in December 1921 by the claimant's own doctor. By that date the claimant had repeatedly suffered from violent dermatitis, and had had it on him for five years before the proof. There is no proof that the claimant ever suffered from severe scalding or burning, and I think the scars from which Dr Alexander inferred

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such an event were the scars of the severe suppurating dermatitis. The skin was covered with ‘large red blotches’ in September 1922. I gather from the proof that nephritis can arise from other and varied causes, but what is the use of that if none of them are proved to have been present? It is a question of proof, and there is no proof that the man's nephritis is caused by extensive burning; or such antecedent ailments as scarlet fever, &c. It remains a mere conjecture. Nor is there any ground for the suggestion that he was wrongly treated or did not follow the prescribed treatment. That seems to me not only an unfounded but an invidious suggestion. There is no justification for describing his nephritis as chronic, not acute. Since the date of the proof the claimant has died, but as this is not part of the case I have decided the claim on its present form. I find in the proof not only enough to justify me, but I think to compel me to find for the claimant, once the medical referee has resolved my doubts as to the medical possibilities of this case.”

Argued for the appellants—The certificate was final as to the cause of the incapacity to which the agreement related. That incapacity having, according to the arbitrator's findings, ceased, the agreement and the certificate were of no effect. It was not competent in an application to record a memorandum of such an agreement to go beyond the certificate and raise questions of liability for compensation outside the agreement— Bedford v. Cowtan & Sons, Limited, [1916] 1 K.B. 980, per Cozens-Hardy, M.R., at p. 985, 9 B.W.C.C. 208; Dulton v. Sneyd Bycars Company, Limited, [1920] 1 K.B. 414, per Warrington, L.J., at p. 418, and Eve, J., at p. 422. Further, the sequelœ of dermatitis were not included in Schedule III, so that the agreement could not be extended to the incapacity caused by nephritis as one of the sequelœ. The memorandum therefore should not be recorded. The nephritis was a new disease breaking the claim of causation, and the arbitrator's finding that it resulted from the dermatitis was wrong in law. It could only do so in the meaning of the Act if it was an aggravation of the original trouble— Carr v. Burgh of Port-Glasgow, 1923, S.C. 844, per the Lord Justice-Clerk, at p. 848, and Lord Hunter, at p. 854, 60 S.L.R. 511; Saddington v. Inslip Iron Company, (1917) 10 B.W.C.C. 624; Brown v. George Kent Limited, [1913] 3 KB 624.

Argued for the respondent—The certificate put the workman in the position of one injured by accident arising out of and in the course of his employment, and so long as incapacity continued he was entitled to compensation. The question of whether nephritis was a sequela of dermatitis had no bearing on the case. Once the certificate was obtained any results although not natural or expected, which were connected by a chain of causation with the original disease were grounds for compensation— Corser v. Bussell Limited, 1921, S.C. (H.L.) 31, [1921] 1 A.C. 351, 58 S.L.R. 80; Fanning v. Evans & Company, Limited, 1923, 16 B.W.C.C. 43; Dunham v. Clare, [1902] 2 KB 292; Ystradowen Colliery Company, Limited v. Griffiths, [1909] 2 KB 533.