R v National Insurance Commissioner.ex parte Viscusi
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BUCKLEY,LORD JUSTICE ROSKILL |
| Judgment Date | 19 February 1974 |
| Judgment citation (vLex) | [1974] EWCA Civ J0219-2 |
| Date | 19 February 1974 |
| Court | Court of Appeal (Civil Division) |
[1974] EWCA Civ J0219-2
In The Supreme Court of Judicature
Court of Appeal
Appeal of Georgio Visousi from order of the Divisional Court of the Queen's Bench Division on 14th November, 1972.
Revised
The Master of the Rolls (Lord Denning),
Lord Justice Buckley and
Lord Justice Roskill.
In the Matter of an Application by Georgio Visousi for an order for certiorari
and
In the Matter of the Decision of a Commissioner dated 12th February 1969
Mr. D.J. TURNER-SAMUELS, Q.C., and Mr. ALEXANDER IRVINE (instructed by Messrs. W.H. Thompson) appeared on behalf of the Appellant.
Mr. GORDON SLYNN (instructed by the Solicitor, Department of Health and Social Security) appeared on behalf of the Respondent.
This case raises several questions of interest to those who administer industrial insurance.
Mr. Viscusi came to this country from Italy. He cannot read or write. He cannot speak English. He worked in the woodlands near Haslemere. In July 1965, when he was 55, he trod on a nail and twisted his knee. In October 1965 it was operated on at the Haslemere Hospital. He was paid injury benefit and afterwards disablement benefit. The question is: For how long is he entitled to benefit?
The insurance history has three chapters:-
THE FIRST CHAPTER. On 27th January, 1966, Mr. Viscusi had the first Medical Board. It was found that his walking was impaired. The Board made a provisional assessment of 50% to continue for 6 months. The Ministry thought this was an over-assessment. They referred it to the first Medical Appeal Tribunal. On 3rd March 1966 that Tribunal affirmed the 50% as reasonable. It extended the period to 25th September 1966. Meanwhile on 14th July 1966 he was examined by a consultant at the Haslemere Hospital, who reported that he was fit for work and added: "His imagined disability is the result of injury that was cured by operation 20/10/65 when it was found there was no ligament damage. This seems to be a psychological problem."
THE SECOND CHAPTER. On 12th September 1966 there was the second Medical Board. They found that his right leg was swollen. They found that he was handicapped "not at all", and added this remark:-
"The Board is of the opinion, having studied the hospital report and examined the case carefully, that the swelling of the right leg and the physically abnormal findings are an artefact and that the claimant is malingering." (I may say that the word "artefact" means that it was caused by himself.) So that Board did not continue the award. He appealed to the second MedicalAppeal Tribunal, Prior to the hearing he went to the Italian Hospital in Queen's Square and was kept there a week. The surgeon there reported that the "man has reached a permanent state in the condition of his right knee which can be classified as traumatic elephantiasis." With that report, the case went to the second Medical Appeal Tribunal. They allowed his appeal. They found that "His right leg is swollen and tense from the upper thigh to foot, as a result, in our opinion, of a deep femoral vein thrombosis. The right leg condition is a serious disablement and in our opinion has arisen from the accident." They made a provisional assessment of 50% and extended it to 25th June 1967.
THE THIRD CHAPTER. On 6th June 1967 he had the third Medical Board. The Board found that his walking was impaired and made a final assessment of 50% for life. The Ministry referred that to the third Medical Appeal Tribunal. On 23rd August 1967 the Appeal Tribunal said that they desired to have a further opinion. "Before adjudicating we desire to have an opinion from Mr. Noel Thompson of the Middlesex Hospital as to the cause of the swelling and its relevance to the industrial accident of 28 July 1965." In pursuance of that request the medical officer of the Ministry prepared a history of the case and appended to it the findings of fact of the three Medical Boards, but not their decisions or remarks. He did not append any part of the records of the three Medical Appeal Tribunals.
On receiving those papers, Mr. Noel Thompson himself examined Mr. Viscusi. He studied the papers and gave his report on 4th October 1967. It is of particular significance in the case. Mr. Thompson described the man's condition on examination and gave the measurement of the leg. It showed swelling of the right leg. Mr. Thompson said: "I cannot explain these findings: there must be astrong suspicion of lymphoedema artefacta, for the following reasons:"…. Putting that into English, it means a swelling artificially induced by himself. Mr. Thompson then gave his reasons in medical terms, including this, that the swelling was in mid-thigh well above the knee, and at that level it was "suspect as being the level at which a self-applied tourniquet bandage might be applied. The latter by applying compression, together with disuse-atrophy might explain the wasting in the upper thigh. I agree with the late Prof. Ian Aird that oedema of the sole of the foot in an ambulant patient is strongly indicative of a self-inflicted cause."
Mr. Thompson suggested that a further investigation might confirm his view: "Lymphangiography would confirm these conclusions." "Lymphangiography", as we were told, means the injecting a fluid into the vein and seeing the result rather like an X-ray does.
Although Mr. Thompson suggested lymphangiography, it was not held.
The Ministry sent a copy of Mr. Thompson's report to the representatives of Mr. Viscusi together with the papers submitted to Mr. Thompson. Mr. Visousi's representatives had every opportunity of considering them. They did not make any adverse comment upon the way in which the matter was submitted to Mr. Thompson. They did not ask for a further examination by lymphangiography. They attended at the hearing of the third Medical Appeal Tribunal. They argued that Mr. Viscusi was a genuine case and that he would not have enough medical knowledge to fake these symptoms. After hearing these submissions, the third Medical Appeal Tribunal on 30th November 1967 decided that he should no longer be entitled to benefit. They said: "After examination, we accept the report of Mr. Noel Thompson and agreewith his findings and opinion. Whatever may have been the claimant's condition up to 25 June 1967, the condition of his right lower limb thereafter is not attributable to the relevant accident: The assessment must be discharged."
So the third Medical Appeal Tribunal discharged the assessment altogether on the ground that he was malingering. He had tied a bandage himself round his leg and caused the swelling himself.
From that decision Mr. Viscusi appealed to the Commissioner of Insurance. That appeal is only on points of law. On behalf of Mr. Viscusi, it was said that natural justice had not been observed: that there should have been further investigation, and so forth.
On 12th February 1969 the Commissioner, Mr. Watson, gave a reasoned opinion in which he dismissed the appeal. Thereupon an application was made to the Divisional Court for certiorari. It was refused. Now there is an appeal to this Court.
At the outset I would like to say a word about the proceedings on an application for insurance benefit. The proceedings are not to be regarded as if they were a lawsuit between opposing parties. The injured person is not a plaintiff under a legal burden to prove. They are more in the nature of an inquiry before an investigating body charged with the task of finding out what happened and what are the consequences. The man tells about the accident and his injury. He describes his disablement. The Ministry are not there to oppose him. They are simply there to help the Tribunal to come to a correct decision. It is very proper for the Ministry to make investigations, to get medical reports and to put them before the Tribunal. They do it not as trying to defeat the man's claim, but simply to see whether his case is a true one or not.
I turn now to the several points which nave been raised. The first point was as to "finality". It was argued for Mr. Viscusi that the second Medical Appeal Tribunal had considered the charge of malingering and rejected it. It was contended that that decision was "final" on the point.
Section 50 of the National Insurance (Industrial Injuries) Act 1965 says:-
"(1) Except as provided by this Part of this Act, any decision of a claim or question in accordance with this Part of this Act shall be final."
The question of finality has been considered In re Dowling (1967) 1 A.C. 725, in the House of Lords; and more recently in Hudson's case (1972) A.C. 944. Those cases concerned the decisions of the statutory authorities. In the present case we are concerned with the decision of the medical authorities. — It appears to me that a "provisional assessment" is, as the very word says, provisional. It is not final. It only applies for the period for which assessment is made. It is not binding on a future Tribunal in regard to subsequent periods. In Regina v. Industrial Injuries Commissioner, Ex parte Howarth, Knight's Industrial Reports, volume IV, page 621, we considered this point. We said:
"But they were only final in respect of the periods stated in them. Each of these boards made provisional assessments in respect of specified periods. They were final for those periods only. They were not final for any subsequent periods."
I would adhere to what we said then. These provisional assessments are not binding on the subsequent periods.
It would be different if it was sought to reverse the assessments for the selfsame period — to reverse the assessment which had already been made. It would then be a question forreview under section 40(1) of the Act. A review could be had if...
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