Rosie v Mackay
| Jurisdiction | Scotland |
| Judgment Date | 14 June 1910 |
| Date | 14 June 1910 |
| Docket Number | No. 107. |
| Court | Court of Session |
Lord President, Lord Justice-Clerk, Lord Low, Lord Ardwall, Lord Dundas, Lord Johnston.
Master and ServantWorkmen's Compensation Act, 1897 (60 and 61 Vict. cap. 37), First Schedule (1) (6) (12)ReviewIncapacityPermanent InjuryTemporary RecoveryNominal AwardSuspensory Order.
In an application by an employer for review of a weekly payment of 18s.
to a workman who had been ruptured by an accident, the arbitrator, with consent of parties, remitted to a medical referee, who reported that, while the workman was not incapacitated and was able for his ordinary work, yet the ruptures probably would, in the future, prove detrimental to him. No further evidence was led, and the arbitrator reduced the compensation to 9s. per week.
In an appeal by stated case, held (1) that there was no evidence of incapacity for work before the arbitrator to justify his award of compensation; (2) that it was incompetent to give a nominal award for the purpose of keeping open the claim for compensation; and (3) that the compensation should be ended (diss. Lord Low and Lord Skerrington on the ground that the proper course was to stop the payments and sist procedure, with leave to renew the application for review in the event of a change of circumstances).
Observations (per the Lord President and Lord Johnston) on the competency of evidence to shew that the wage-earning capacity of the workman was diminished, notwithstanding his ability to perform his ordinary work.
Clelland v. Singer Manufacturing Co.SC, July 18, 1905, 7 F. 975, followed.
Owners of the vessel Tynron v. MorganELR, [1909] 2 K. B. 66, disapproved.
Nicholson v. PiperELR, [1907] A. C. 215, commented on.
In an arbitration under the Workmen's Compensation Act, 1897, raised in the Sheriff Court at Edinburgh at the instance of George Rosie, builder, against Alexander Mackay, mason, the Sheriff-substitute (Guy) awarded compensation, and at the request of the applicant, stated a case.
The case set forth:
This is an arbitration under the Workmen's Compensation Act, 1897, in which the arbitrator was asked by the appellant to review a weekly payment of 18s. due by him to the respondent under a memorandum of agreement recorded in the Special Register as on 24th August 1908.
The respondent while working as a mason in the employment of the appellant in Edinburgh, on 20th November 1906 sustained certain injuries in respect whereof the appellant for some time paid compensation to the respondent under the said Workmen's Compensation Act as for total incapacity at the rate of 18s. per week.
On 19th July 1909 the appellant presented an application in the Sheriff Court of the Lothians and Peebles at Edinburgh to have the said weekly payment reviewed in terms of section 12 of the First Schedule of the said Act by being ended or diminished on the averment that the respondent's incapacity for work arising out of said accident had entirely ceased, or at least had become greatly lessened. The respondent maintained that he was still totally and permanently incapacitated for his work. In the course of the proceedings, and without any proof having been led or tendered, the parties by joint minute consented to a remit to a medical referee in terms of the Workmen's Compensation Act, 1897. For that purpose the parties agreed upon the following as the statement of the circumstances of the accident and of the injuries to the respondent:While engaged in the demolition of a tenement and when working on the top of a gable wall, the wall gave way and the applicant was precipitated to the basement of the building whereby he sustained injuries as followsSeveral of his ribs were broken, he was severely bruised, and he was also ruptured.
I accordingly pronounced the following interlocutor:Edinburgh, 31st August 1909.The Sheriff-substitute having considered the joint minute for the parties now lodged, in respect thereof and of consent of parties makes a reference to Dr Wallace, Edinburgh, medical referee. John G. Guy. And on 31st August 1909, I made a remit under section 15 of the Second Schedule of the Workmen's Compensation Act, 1906, corresponding to section 13 of the Second Schedule of the Workmen's Compensation Act, 1897, to David Wallace, Esq., Edinburgh, one of the medical referees appointed by the Secretary of State, to examine the said Alexander Mackay, and to reportWhether, in so far as medical examination can shew, the appellant is still totally incapacitated for work, and if not totally incapacitated for work, whether he has recovered his whole capacity for work, or whether he has only partially recovered his capacity for work, and in this last event what proportion of his former capacity for work he has recovered.
The referee returned a report dated 8th September 1909, in the following terms:I have examined Alexander Mackay at 41 Drummond Place on 8th September 1909, and I beg to report as follows on the questions submitted to me:1. The applicant, Alexander Mackay, is not incapacitated for work. 2. He is able for his ordinary work.
After allowing parties to inspect the medical referee's report, and hearing parties' procurators, I then pronounced the following interlocutor:Edinburgh, 21st October 1909. Finds that in respect of the statements made at the bar by the workman's agent, the medical referee ought to be communicated with in order to clear up doubt as to the footing on which he proceeded in giving his said report, and allows the parties to see the letter which has been addressed to-day by the Sheriff-clerk to the medical referee on the instructions of the Sheriff-substitute, a copy of which is in process. John C. Guy.
The letter referred to in the foregoing interlocutor was in the following terms:
Edinburgh, 21st October 1909.
Dear Sir,I am directed by Sheriff Guy to draw your attention to the reference in this case which was sent to you on 31st August 1909, and to your report dated 8th September 1909, in which you state that the applicant, Alexander Mackay, is not incapacitated for work he is able for his ordinary work.
You would observe that in the description contained in the reference of the injuries which the workman sustained through the accident it is stated, among other things, that he was ruptured. The Sheriff is informed that the rupture was a double hernia, and that the rupture still exists. The Sheriff has heard no proof in the case, and the remit to you was by consent of parties. The said description of the workman's injuries caused by the accident was adjusted and agreed to by the agents of both the workman and employer, and the Sheriff is therefore of opinion that the case must be taken and decided on the footing that the workman was ruptured through the accident.
The Sheriff desires you to inform him whether your report is to be taken that notwithstanding double hernia still remains as the result of the accident, the workman has totally recovered his capacity for work as a mason's labourer, or whether he is to take your report as meaning that you have not regarded the ruptured condition as a result of the accident. Of course, if you have not satisfied yourself as to the existence of the rupture, you may require to examine the man again. You may also desire to reconsider your report, and I shall be glad to hear from you as early as possible.
William Gardiner, Sheriff-Clerk.
The medical referee replied in the following terms:
Edinburgh, 22d October 1909.
Dear Sir,In reply to your letter of 21st October I have to say:
I gave my report after examination of the workman Alexander Mackay and consideration of the double rupture from which he suffers, and, in my opinion, the ruptures (herni) do not incapacitate him from following his ordinary occupation. The agents for the employers and workman have agreed that the workman was ruptured through the accident, and the Sheriff is therefore of opinion that the case must be taken and decided on that footing. It is only right, therefore, that I should say that although I consider the ruptures do not at present prevent Alexander Mackay from doing his ordinary work, yet they may, and probably will, in the future become more marked (i.e., increase in degree), and prove detrimental to him.
I then allowed parties to see the medical referee's supplementary report, and appointed parties to be again heard, and thereafter pronounced the following interlocutor:
Edinburgh, 18th November 1909. Finds in fact (1) that on 20th November 1906, the claimant while in the employment of the respondent as a mason at the demolition of a building at Planestane Close, Canongate, Edinburgh, sustained personal injury by accident arising out of and in the course of his employment; (2) that said personal injury was as follows:Several of his ribs were broken; he was severely bruised, and he was also ruptured; (3) that the claimant was totally incapacitated for work by said injuries; (4) that by memorandum of agreement between the parties recorded in the Special Register kept for the purpose by the Sheriff-Clerk of Midlothian as at 24th August 1908, the respondent agreed to pay to the claimant compensation under the Workmen's Compensation Act, 1897, at the rate of 18s. per week; (5) that the claimant has now partially recovered his capacity for work, but still suffers from rupture, viz., double hernia, as the result of said accident. In these circumstances diminishes the weekly payment payable to the claimant under said memorandum of agreement to the sum of 9s. per week as from 19th July 1909, being the...
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