R v Medical Appeal Tribunal, ex parte Gilmore ; Re Gilmore's Application
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE ROMER,LORD JUSTICE PARKER |
| Judgment Date | 25 February 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J0225-2 |
| Date | 25 February 1957 |
| Court | Court of Appeal |
[1957] EWCA Civ J0225-2
Lord Justice Denning.
Lord Justice Romer and
Lord Justice Parker
In The Supreme Court of Judicature
Court of Appeal
Mr. D.J. TURNER–SAMUELS (instructed by Messrs Gaster & Turner, Agents for Mr I.E. Geffen, Durham) appeared on behalf of the Applicant.
My RODGER WINN (instructed by the Solicitor for the Minister of Pensions and National Insurance) appeared on behalf of the Respondents.
: This is an application by Robert Gilmore for an order of certiorari to remove into this Court a decision of a Medical Appeal Tribunal for the purpose of quashing it. It involves the correct application of Regulation 2 (5) of the National Insurance (Industrial Injuries Benefit) Regulations, 1948. That Regulation deals with an injury to one of two "paired organs", as they are called, such as eyes, legs, and so forth. If a man with two good eyes loses the sight of one of them in an industrial accident, his disablement is assessed at 30 per cent. But if a one–eyed man (who lost the sight of an eye many years ago) should lose the sight of his remaining good eye in an industrial accident, then Regulation 2 (5) says that his disablement must be assessed as if the blindness in his bad eye was itself the result of losing his good eye. In other words, the blindness in both eyes is deemed to be due to the accident. His disablement benefit is therefore to be assessed not at 30 per cent but at 100 per cent.
Now for the facts of this case: Some 20 years ago Robert Gilmore was injured in both eyes by lime burns. It made him almost blind in his right eye, but he had sufficient sight in his left eye to enable him to continue at his work as a blacksmith.
19 years later, in March 1955) whilst he was at work, some ash blew out of the fire into his eyes. This made his left eye – the one on which he relied – a good deal worse than" it had been before, so that he could no longer do his work as a blacksmith. He was nearly blind in both eyes. He claimed disablement benefit under the National Insurance (Industrial Injuries) Acts. The first Medical Board on the 2nd October, 1955, made a provisional award under which they assessed the degree of disablement at 100 per cent. The second Medical Board on the 17th January, 1956, made a similar provisional award of 100 per cent. A third Medical Board, however, on the 6th March, 1956, found that, although his sight was still very bad, it was due to a pre–existing condition and was not due to the accident in March 195. So they made no disablement award at all. He appealed to the Medical Appeal Tribunal, who asked a specialist to examine him.
On the 16th May, 1956, the specialist 6ave his report. It was in favour of the workman. I will give the material parts of it: "The right eye is densely scarred from the lire bums in 1936 and has no connection with the recent injury, except that being a blind eye he had no vision in reserve and was entirely dependent on the left eye have the definite evidence that from 1936 till 1955 he worked as a blacksmith (pick sharpener). He tells me that he actually performed the work himself and was not supervising. He certainly could not do this now with his present sight and so I fell satisfied that his sight was further markedly impaired as a result of his accident and hypopion ulcer. I should consider that his defective sight was aggravated by the injury on 30.3,55 (this should be 17.3, 55) and that this aggravation will be permanent. In regard to prognosis it is too early to say. The graft at present is not transparent enough to give useful sight but it may improve or alternatively it may be possible to do a further graft with better results".
On the 13th June, 1955, the Medical Appeal Tribunal gave their decision in these words: "ninth reference to your claim for disablement benefit, the Medical Appeal Tribunal which considered your case on 11th June, 1956, decided that a loss of faculty has resulted from the industrial accident on 17,3,55, The extent of the disablement from the loss of faculty is to be assessed at 20% for the period from 15.4.56. This is a final assessment. The findings of the Tribunal are summarized as follows: Hearing commenced de novo. The specialist Mr. Arkle states in his report of 16.5,56 'I consider that the defective sight was aggravated by the injury on 30.3,55 and that the aggravation will be permanent'. Further treatment is said to be contemplated. Mr. Gilmore had a pre–existing condition of corneal dystrophy hypopion ulcer of which the relationship to injury is doubtful. There remains, however, a possibility aggravation by the relevant condition and we give Mr. Gilmore the benefit of the doubt. We assess the aggravation at 20%".
Then Mr. Gilmore received that decision, his advisers took the view that the Medical Appeal Tribunal had failed to apply Regulation 2(5). The 20 per cent represented only the aggravation to the left eye. It ignored the bad sight in the right eye which the Regulation says is to be treated as the result of the injury to the left eye. Mr. Gilmore's advisers first sought to get the matter put right by applying to a Medical Board for a review. They relied on Section 40 (1) of the 1%6 Act which says that "any decision of a Medical Board or a judicial Appeal Tribunal may be reviewed at any time by e Medical Board if satisfied by fresh evidence that the decision was given in consequence of the non–disclosure or misrepresentation by the assistant or any other person of a material fact". The Medical Board held that the case did not come within that provision for review. Mr. Gilmore appealed to the Medical Appeal Tribunal. On the 10th December, 1956, the Tribunal rejected his appeal,) the ground that his contention was "not fresh evidence or the non–disclosure of a material fact, but a submission that the Tribunal (in their decision of 13th June, 1956) bad misdirected itself in a matter of law which is not a setter upon which a Medical Board can be expected to pronounce".
Mr. Gilmore had thus exhausted all the statutory ways of correcting the decision of the Medical Appeal Tribunal. So then sought redress from the Quean's Courts. On the 22nd January, 1957, he loved the Divisional Court ex parte for leave to apply for an order for certiorari to quash the decision, but the Court refused his request. On the 28th January, 1957, he moved this Court ax parte and we granted his request. We thought we ought to extend the Usual time limit of six months because he had not been guilty of any delay in seeking redress. We also thought that there was some ground for thinking that there was an error on the face of the record.
On the 12th February, 1957, the application came on for hearing in this Court. After the case was opened, Mr. Rodger Winn informed us that he had carefully considered the matter with the responsible officers of the Ministry and as a result he conceded that the decision of the Medical Appeal Tribunal of the 13th June, 1956, was erroneous in point of law. The Ministry, he said, were in some difficulty because the Chairman of the Tribunal had died: but it appeared that the Tribunal had either overlooked Regulation 2 (5) or had thought that on the merits (presumably because they doubted whether there was any aggravation at all due to the injury) 20 per cent was a fair award. In either case the Tribunal had gone wrong in law. The Regulation makes it clear that, once they accepted aggravation to the left eye, they ought to assess the disablement not only for the left eye but also the right eye. They were not at liberty to reduce the award because of their doubts on aggravation any more than a Judge is at liberty to reduce damages because of his doubts on liability.
We might perhaps have acted on Mr. Winn's concession and quashed the decision straightaway: but in the course of the discussion some points of very considerable importance emerged upon which we took time to consider our Judgment.
The first point is whether the error of the Tribunal appears on the face of the record. It does not appear on the face of their written adjudication of the 13th June, 1956. There is not a word there about the right eye, or even the left eye for that matter. But the Tribunal gave an extract from the specialists report and thereby, I think, they made that report a part of the record. Just as a pleading is taken to incorporate every document referred to in it so also does adjudication. Once the specialist's report is read with the record, we have before us the full facts about the previous injury to the right eye and the subsequent injury to the left. These facts are sufficient to disclose the error in law: for it is then apparent that the award of 20 per cent must be wrong. No reasonable person, who had proper regard to Regulation 2 (5), could have come to such a conclusion. It is now settled that when a Tribunal some to a conclusion which could not reasonably be entertained by them if they properly understood the relevant enactment, then they fall into error in point of law: see Edwards v. Bairstow, 1956 Appeal Cases, 14. When the primary facts appear on the record, an error of this kind is sufficiently apparent for it to be regarded as an error on the face of the record such as to warrant the intervention of this Court by certiorari.
I may add that, even if we had not been able to have recourse to the specialist's report, we would have been able to get the facts by ordering the Tribunal to complete the record by finding the facts, as the Regulations require them to. By Regulation...
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