Huxley v Wharncliffe Woodmoor Colliery Company. Ltd

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Thankerton,Lord Porter,Lord Uthwatt,Lord Du Parcq,Lord Oaksey
Judgment Date19 March 1948
Judgment citation (vLex)[1948] UKHL J0319-1
Date19 March 1948

[1948] UKHL J0319-1

House of Lords

Lord Thankerton

Lord Porter

Lord Uthwatt

Lord du Parcq

Lord Oaksey

Clara Annie Huxley (Widow)
and
The Wharncliffe Woodmoor Colliery Company Limited

After hearing Counsel, as well on Tuesday the 10th, as on Thursday the 12th and Monday the 16th, days of February last, upon the Petition and Appeal of Clara Annie Huxley, Widow, of 14 Longman Road, Barnsley, in the West Riding of the County of York, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 31st of July 1946, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the Wharncliffe Woodmoor Colliery Company Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 31st day of July 1946, complained of in the said Appeal be, and the same is hereby, Reversed, and that the Cause be, and the same is hereby, remitted back to the County Court Judge of the Barnsley County Court with a Direction to make an award for £400 in favour of the Appellant, and to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by her in the Courts below, and also the Costs incurred by her in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments.

Lord Thankerton

My Lords,

1

The Appellant is the widow, and the only dependant of, Llewellyn Thomas Huxley, who died on the 2nd October, 1945, and she claims compensation under the Workmen's Compensation Acts from the Respondents, in whose employment he had been for certain periods, on ground that his death was caused by one of the Scheduled diseases.

2

The Appeal raises an important question as to the proper construction of section 43 of the Act of 1925, and in particular of paragraph ( f) of the modifications set out in subsection (1) of that section, and as to the finality or conclusiveness in regard to a claim by a dependant of the refusal of a medical referee to give to the deceased workman a certificate of disablement and his certificate as to the condition of the workman at the time of his examination. The learned County Court Judge held that the decision and certificate were binding on the Appellant, and made an award in favour of the present Respondent, and, on an Appeal by stated case, his award was affirmed by a majority of the Court of Appeal, and the Appellant's Appeal was dismissed.

3

The scheduled disease referred to is "Epitheliomatous cancer or ulceration of the skin due to tar, pitch, bitumen, mineral oil or paraffin, or any compound, product or residue of any of these substances." It is not disputed that the deceased workman suffered from epitheliomatous cancer or ulceration of the skin and that his death was caused thereby.

4

The following facts do not appear to be in dispute:—the workman was employed during the years 1917 to 1932 by the Respondent as a dauber in their by-products plant. He was not on the list of those employed on the tar plant, who underwent voluntary medical inspection, but the learned County Court Judge has found that he was exposed during this period to tar or pitch or any compound, product or residue of these substances. In 1932 the Respondent's plant was closed down, and after a short period of unemployment, the workman was employed as a labourer at glass works from 1932 to 1940. In December, 1940, he returned to his previous employment as a dauber with the Respondent and continued therein until the end of July, 1944, when he developed a boil on the scrotum, and came under medical treatment. His condition having improved, he returned to his work with the Respondent in January, 1945, but, after three weeks, he gave it up and took light work, at which he collapsed in April, 1945. He was not able to resume work, and died on 2nd October, 1945. On 8th March, 1946, the Appellant initiated the present arbitration proceedings, claiming, as a dependant, £400 compensation under the Workmen's Compensation Acts.

5

On 11th September, 1944, the workman had obtained from the examining surgeon a certificate of disablement that he was suffering from the scheduled disease above mentioned and was thereby disabled, in terms of section 43 (1) (i) of the Act of 1925. The Respondent appealed to the medical referee, who, on 3rd October, 1944, refused to give a certificate of disablement in terms to which I will refer later. The learned County Court Judge has found that the workman was in contact with tar or pitch or any compound or residue thereof during his employment with the Respondent during 1940 to 1944 and in January, 1945, but, as stated by him, it was conceded by the present Appellant that death was not caused 1944, the date of the medical referee's certificate. In these circumstances, the learned County Court Judge held himself bound, as matter of law, by the medical referee's certificate as final and conclusive, but stated that, if not so bound, he would have held, on the evidence, that the workman was exposed to the substances in question during the years 1917 to 1932, and that the scheduled disease was caused during that period. The only question in the Appeal is whether the medical referee's certificate is so binding, and its decision turns on the proper construction of section 43 of the Act of 1925, and in particular of modification (f) of subsection (1). It will be convenient to quote subsections (1) and (2) of section 43, which provide as follows:—

"43. (1) Where— (i) the examining surgeon appointed under the Factory and Workshop Act, 1901, for the district in which a workman is employed certifies that the workman is suffering from a disease mentioned in the Third Schedule to this Act and is thereby disabled from earning full wages at the work at which he was employed; or

(ii) a workman is, in pursuance of any special rules or regulations made under the Factory and Workshop Act, 1901, suspended from his usual employment on account of having contracted any such disease; or

(iii) the death of a workman is caused by an)' such disease; and the disease is due to the nature of any employment in which the workman was employed at any time within the twelve months previous to the date of the disablement or suspension, whether under one or more employers, he or his dependants shall be entitled to compensation under this Act as if the disease or such suspension as aforesaid were a personal injury by accident arising out of and in the course of that employment, subject to the following modifications:—

( a) "The disablement or suspension shall be treated as the happening of the accident;

( b) "If it is proved that the workman has at the time of entering the employment wilfully and falsely represented himself in writing as not having previously suffered from the disease, compensation shall not be payable;

"( c) The compensation shall be recoverable from the employer who last employed the workman during the said twelve months in the employment to the nature of which the disease was due:

"rovided that— (i) the workman or his dependants if so required shall furnish that employer with such information as to the names and addresses of all the other employers who employed him in the employment during the said twelve months as he or they may possess, and, if such information is not furnished, or is not sufficient to enable that employer to take proceedings under the next following proviso, that employer upon proving that the disease was not contracted whilst the workman was in his employment shall not be liable to pay compensation; and

(ii) "if that employer alleges that the disease was in fact contracted whilst the workman was in the employment of some other employer, and not whilst in his employment, he may join such other employer as a party to the arbitration, and if the allegation is proved that other employer shall be the employer from whom the compensation is to be recoverable; and by a gradual process, any other employers who during the said twelve months employed the workman in the employment to the nature of which the disease was due shall be liable to make to the employer from whom compensation is recoverable such contributions as, in default of agreement, may be determined in the arbitration under this Act for settling the amount of the compensation, or, if the amount of compensation is not in dispute, as may be determined by arbitration under this Act.

"( d) The amount of the compensation shall be calculated with reference to the earnings of the workman under the employer from whom the compensation is recoverable;

"( e) The employer to whom notice of the death, disablement or suspension is to be given shall be the employer who last employed the workman during the said twelve months in the employment to the nature of which the disease was due, and the notice may be given notwithstanding that the workman has voluntarily left his employment;

"( f) If an employer or a workman is aggrieved by the action of an examining or other surgeon in giving or refusing to give a certificate of disablement or in suspending or refusing to suspend a workman for the purposes of this section, the matter shall in accordance with regulations made by the Secretary of State be referred to a medical referee, whose decision shall be final, and the medical...

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