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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Morgan v. William Dixon Ltd [1910] ScotLR 296 (24 December 1910) URL: http://www.bailii.org/scot/cases/ScotCS/1910/48SLR0296.html Cite as: [1910] SLR 296, [1910] ScotLR 296 |
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Page: 296↓
[Sheriff Court at Hamilton.
The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) enacts — Schedule I (4) — “Where a workman has given notice of an accident, he shall, if so required by the employer, submit himself for examination by a duly qualified medical practitioner provided and paid by the employer, and if he refuses to submit himself to such examination, or in any way obstructs the same, his right to compensation, and to take or prosecute any proceeding under this Act in relation to compensation, shall be suspended until such examination has taken place.”
A workman having claimed compensation under the Workmen's Compensation Act 1906, his employers required him to submit to examination by a duly qualified medical practitioner provided and paid by them. The workman refused except on condition that his own medical attendant was present throughout the examination. He conceded that there were no special circumstances in his case which called for the presence of his medical attendant.
Held that the workman was not entitled to refuse to submit to examination unless his own medical attendant was present.
This was a stated case from the Sheriff Court at Hamilton in an arbitration under the Workmen's Compensation Act 1906 between David Morgan, driver, High Blantyre ( appellant), and William Dixon Limited, Blantyre Colliery, Blantyre ( respondents).
The Case stated—“This is an arbitration in which the appellant claimed an award of compensation under the said Act in respect of an injury to his left foot, which injury is alleged to have been sustained while he was in the employment of the defenders as an underground driver on 3rd June 1910.
After the petition for an award of compensation had been presented the respondents required the appellant to submit himself for examination by a duly qualified medical practitioner provided and paid by them, under section 4 of the First Schedule of said Act.
The appellant, however, refused to submit himself for such examination unless upon condition that his own medical attendant should be present throughout the examination.
The respondents refused to accede to this condition, and contended that appellant's refusal to submit himself to medical examination unless on the condition above referred amounted to obstruction in terms of the said section. They lodged a minute in the arbitration craving the Court to sist the appellant's application for arbitration until he submitted himself for medical examination in terms of said section.
Parties were heard upon this minute, and it was conceded in argument by the appellants that there were no special circumstances in his case which called for the presence of his medical attendant at the examination, his contention being that it is the right of the workman in every case, without alleging any special reason, to have his medical attendant present at the examination, and to refuse to submit himself for examination unless and until his employers consented thereto.
The arbiter, while willing to consider any special grounds which might make it expedient that the appellant's medical attendant should be present, held that the appellant's contention was not well founded, and he accordingly granted the crave of said minute, and sisted the application for arbitration until the appellant submitted himself for medical examination as required by the respondents.”
The question of law for the opinion of the Court was—“Whether, apart from any special circumstances in a particular case, a workman is entitled to have his own doctor present throughout the examination by the medical practitioner on behalf of the employers, in terms of section 4 of the First Schedule of the Workmen's Compensation Act 1906, and whether the workman's refusal to submit himself for examination unless his doctor is allowed to be present
Page: 297↓
amounts to ‘refusal’ or ‘obstruction’ in terms of said section?” Argued for appellant—The respondents would have some difficulty in explaining to the Court why they objected to the presence of the workman's doctor. It was by means of medical evidence that the truth as to his condition would be ascertained. Moreover, according to universal practice inspectio corporis was made in presence of the medical adviser of the party examined. The appellant had not “refused” to submit to examination within the meaning of the Act— Devitt v. Owners of Steamship “ Bainbridge” [1909], 2 K.B. 802.
Argued for respondents—It was conceded before the arbiter that there were no special circumstances calling for the attendance of the appellant's medical adviser. In Devitt v. Owners of Steamship “ Bainbridge” ( sup. cit.) the arbiter held that the workman had not “refused” within the meaning of the section. All that the Court there decided was that his conduct was reasonable in the circumstances. The true view was that the employer was absolutely and unconditionally entitled to have the workman examined by a medical practitioner without anyone else being present— Osborn v. Vickers, Sons & Maxim [1900], 2 Q.B. 91. The Regulations by the Secretary of State as to the medical examination said nothing whatever about the workman's right to adject a condition—Statutory Rules and Orders, 28th June 1907, Workmen's Compensation Act 1906. The only purpose of the examination was that the employer might be medically advised as to whether he should make a tender.
If I thought that any of the decided cases laid down such a rule as the appellant maintains I should certainly consider that this case required to be dealt with by a larger Bench. I do not find that any such rule has been laid down in any case that has been decided. The latest case is the case of Devitt [1909], 2 K.B. 802, decided by the Master of the Rolls and two other Judges in the Court of Appeal, where the circumstances were simply these — A medical practitioner for the master called on a man who had been injured and asked to be allowed to examine him. The workman said that he had no objection provided his own doctor was present. The medical man took that as a refusal to be examined and went away; and then it was maintained that the compensation should be stopped because the workman had refused to be examined by the medical man of the master. In that case the arbitrator decided that that was not a refusal in terms of the statute, and I think he was right. The Court of Appeal upheld his judgment in the circumstances disclosed, deciding that it was not reasonable to hold that the workman had refused to be examined. There may have been many circumstances in that case as to which no inquiry or investigation was made, but which might have made the suggestion of the workman a perfectly reasonable and proper suggestion. It might have been most dangerous to the man himself to proceed without the practitioner being present who knew him and knew the state of his health and constitution, and who, if anything was being done in the course of the examination, could suggest that something ought to be done or something ought not to be done as the case might be. That is not the kind of case we have here.
In regard to the other case quoted — Osborn v. Vickers, Sons & Maxim [1900], 2 Q.B. 91—which also came before the Court of Appeal, I agree with everything that Lord Justice Collins, afterwards Master of the Rolls, said in that case—he states most properly that the refusal of the workman to submit to examination without the presence of his own medical man may be reasonable or it may not. I think the whole circumstances stated by the Sheriff-Substitute indicate that in this case the refusal was not reasonable, and therefore I am for refusing the appeal.
Page: 298↓
The Court pronounced this interlocutor — “Answer the first branch of the question of law … in the negative, and the second branch thereof by finding that the workman's refusal to submit himself for examination unless his doctor was allowed to be present amounted in the circumstances of the stated case to refusal in terms of section 4 of the First Schedule of the Workmen's Compensation Act 1906: Therefore refuse the appeal, and decern,” &c.
Counsel for the Appellant — Moncreiff. Agents— Simpson & Marwick, W.S.
Counsel for the Respondents— Dean of Faculty (Dickson, K.C.)— Carmont. Agents— W. & J. Burness, W.S.
