Scottish Court of Session Decisions

Lord Adam—The respondent Robert Duncan, who was in the employment of the appellants, was injured on 6th July 1903 by an accident in the course of his employment. The injury involved an operation, described in the stated case as the removal of the semi-lunar cartilage of his right knee. The appellants paid compensation under the Workmen's Compensation Act for some time from the date of the accident at the rate of 10s. per week. After a time it appeared to the appellants that this weekly payment should be modified, and they petitioned the Sheriff to review the weekly payment, with the result that the Sheriff on 27th July 1904 diminished the payment to 5s. per week. On 21st October 1904 the appellants applied again to the Sheriff to review the weekly payment. The Sheriff ordered the application to be served at the last known address of the respondent and also edictally, and caused intimation to be made to his last known agent. When the case came up there was no proof led, but it was admitted that the respondent had gone to Australia for the benefit of his health, and the respondent's agent stated that he had no further information about him. In these circumstances the Sheriff pronounced this interlocutor—[ His Lordship quoted the Sheriff's interlocutor.]

The effect of this interlocutor if adhered to is that 5s. per week will be continued until further evidence of the respondent's condition is brought forward, and this cannot be done as long as Duncan remains abroad. By section 3 of the First Schedule an injured workman may, before compensation is fixed, be required to submit himself to examination by a medical practitioner selected by the employer, and if he refuses or obstructs the examination his right to compensation is suspended. After the weekly payment is fixed, it may, under section 12, be reviewed at the request of either party, and ended, diminished, or increased, the amount being settled by arbitration. Now here the appellants thought that this was a case in which the payment to the respondent should be diminished or ended. The machinery provided by the Act and the obligations of the workman are set out in section 11 of the First Schedule—[ His Lordship read this section.] The words are “shall … from time to time submit himself for examination” by a medical man employed by the employer. These words are imperative. But the respondent has by his own act made it impossible to put that machinery in force. He has left the country. The Act does not contemplate in terms the workman leaving the country. But after prescribing the machinery by which the state of the workman is to be ascertained, it enacts (section 11)—“If the

workman refuses to submit himself to such examination, or in any way obstructs the same, his right to weekly payments shall be suspended until such examination has taken place.” I do not think this is a case of the workman refusing, but I think that it amounts to a case of obstructing. It is a reasonable construction of the word “obstruct” to hold that it covers a case where a man by his own acts prevents examination, or, in other words, makes it impossible to have the examination provided for by the Act made. It prevents the operation of the machinery provided by the Act for ascertaining whether the weekly payment is to be continued.

Accordingly I think we should find that the respondent has obstructed the examination, and that his right to the weekly payment is suspended until the examination takes place.

Lord M'Laren—This case comes before us in the course of an application by the employers of an injured workman to have the weekly payment awarded to him reviewed, in respect that the workman has gone to Australia and that the petitioners are unable to exercise their statutory right of having the respondent examined by a medical referee of their own selection. The question is as to the application of section 11 of the First Schedule of the Act, and that is the only point we are called upon to consider. Under section 11 there are, as I had occasion to point out in a previous case, three courses open to the employers with corresponding obligations upon the workman—(1) The employer may, with his consent, have the workman examined by a medical man selected by the employer himself; (2) the workman may decline an examination by the employer's doctor and claim to be examined by the official referee; or (3) the workman may agree to examination by the employer's medical referee without being bound by his decision, and if dissatisfied with it he may claim to be examined by an official medical referee. Now in this case the respondent having left the country the two, latter courses are not available, because there are no official referees outside the United Kingdom, to which alone the statute applies, and it is only by putting a severe strain upon the language of the statute that the first course could be made available. I can hardly think that the section contemplates the employer sending a medical man to Australia or instructing an agent in Australia to employ a medical gentleman of whom he knows nothing to conduct such an examination. If there was any indication that the Act was intended for the benefit of a workman who goes abroad, it would be necessary to look for some way of working out the provisions of the section, but there is nothing in the principle of the statute nor in its scope to suggest that it was intended to apply to a case of this kind. There is no machinery in the statute appropriate to such a case, and therefore the only safe course is to assume that such a case is not within the statute. I should, if possible.

not wish to say that the present case falls within the category of obstruction, though at the same time I think it is clear that “obstruction” does not necessarily mean wilful obstruction. In the absence of any arrangement between the parties it suffices for the decision of the case that the respondent has made it impossible to carry out the provisions of the statute. I therefore agree with all that your Lordship has said, and concur in the judgment proposed.

Lord Kinnear—I am not disposed to say that a workman cannot go abroad without forfeiting the benefits of the Act provided he gives notice to his employer so as to enable some reasonable arrangement to be made for a medical examination in case the employer thinks the weekly payment should be revised. I agree, however, with your Lordship in the chair that the conduct of the workman in this case has made it impossible to carry out the machinery of the statute which is provided in the employer's interest. The workman has gone to Australia without notice and without leaving any address, and the employer cannot obtain the medical examination which the 11th section entitles him to require that the workman shall submit himself to. The workman has made it impossible to carry out the statutory proceedings, and in the plain meaning of the word there has been obstruction in fact. I therefore agree that the case falls within the provisions of section 11, and that in the meantime compensation must be suspended until the medical examination can take place. Whether that involves suspension until the workman comes back to this country it is not necessary to consider, but until the examination takes place compensation must be suspended. It was not possible for the Sheriff-Substitute to diminish or end the award, because he could know nothing of the condition of the workman. He was therefore right in declining to grant the motion as originally made, but I agree that the compensation should have been suspended in hoc statu.

The Lord President was absent.