Scottish Court of Session Decisions

This was a Stated Case on appeal from the Sheriff Court at Airdrie against a decision of the Interim Sheriff-Substitute ( Millar Craig) in an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap 58), between John M'Ghee, miner, Airdrie, appellant, and the Summerlee Iron Company, Limited, Coatbridge, respondents.

The Case stated—“This is an arbitration under the Workmen's Compensation Act 1906, in which the Sheriff is asked to find that the appellant's right to compensation under the Workmen's Compensation Act 1906, in respect of an accident arising out of and in the course of his employment with the respondents at Dunsyston, Chapelhall, on 22nd June 1909, ceased on 14th February 1910, or at such subsequent date as to the Court may seem just, or alternatively to grant an award of partial compensation from such date or dates as to the Court may seem just, and to find the appellant liable in expenses. On 22nd June 1909 the appellant sustained injury to his right eye resulting in the loss of the sight of the eye, by an accident arising out of and in the course of his employment as a miner with the respondents in their said colliery. On 14th February 1910 Dr A. Maitland Ramsay, one of the medical referees appointed to act for Lanarkshire under the said Act, to whom the question of the appellant's fitness for work was remitted under section 15 of Schedule 1 of the Act, reported as follows — ‘(1) The said John M'Ghee is to all intents and purposes blind in his right eye, but the condition of the left is perfectly satisfactory, and his condition is such that he is fit to work as a miner. (2) The incapacity of the said John M'Ghee was due to the injury sustained on or about the 22nd June 1909.’

Thereafter the respondents presented a petition craving the Court to find that the appellant's right to compensation ceased on 14th February 1910, or such subsequent date as to the Court might seem just, or alternatively to grant an award of partial compensation. Defences were lodged by appellant in which they averred, inter alia, that since the date of the medical referee's examination the appellant's sight had diminished, and that he was then, and would be for the future, unfit for his work. Proof having been allowed, the parties lodged a joint-minute agreeing that medical reports lodged therewith should be held as the proof in the case, and craving the Court to remit the case again to the medical referee. On 13th October 1910 the Sheriff-Substitute (Glegg), in respect of the conflict in the medical evidence, remitted under section 15 of Schedule 2 of the Act to Dr A. Maitland Ramsay. The questions submitted to the medical referee and his answers were as follows—‘ Ques. 1. Has M'Ghee again become incapacitated since the date of your examination on 14th February 1910, when you certified him as fit for his former work as a miner?— Ans. 1. M'Ghee is again incapacitated and unfit for his former work as a miner. Ques. 2. If so, is M'Ghee fit for any kind of work?— Ans. 2. M'Ghee is fit for work on the surface. Ques. 3. In the event of M'Ghee being certified unfit for work, is the unfitness the result of his accident?— Ans. 3. I cannot say whether or not M'Ghee's present incapacity is the result of his accident.’

Thisreport was dated 18th October 1910. After hearing parties on the foregoing questions and answers by the medical referee, I issued an interlocutor allowing parties to lead further proof on the questions (1) whether the appellant is incapacitated, and (2) whether the incapacity, if any, is due to the accident.

In terms of said interlocutor, proof was led on 19th December 1910, before Dr A. Maitland Ramsay as medical assessor and myself as arbitrator, when the appellant adduced two medical witnesses, who gave evidence to the effect that the appellant's present incapacity for work was due to the original accident, while the respondents led no evidence, but relied on the medical certificates previously lodged by them.

On 10th January 1911 I issued an interlocutor, in which I found that the following facts, inter alia, were admitted or proved—(1) That in terms of the medical referee's report, the appellant's incapacity had ceased on 14th February 1910. (2) That on 13th July 1910 the appellant was again totally incapacitated in consequence of partial loss of sight in the remaining eye—the left. (3) That on 18th October 1910 the appellant was partially incapacitated, but was fit for work on the surface. (4) That the appellant is now totally incapacitated by reason of the condition of his left eye. (5) That it is not proved that the said condition is due to sympathetic affection.

On these facts I held—(1) That the onus lay on the appellant to prove that the incapacity which supervened in consequence of the partial loss of sight in the left eye was due to the accident; (2) that he had failed to discharge that onus. Had I held that the onus lay on the respondents to prove that the appellant's supervening incapacity was not due to the accident, I should have held that the respondents had not discharged that onus. I therefore ended the compensation as at 14th February 1910, and found no expenses due to or by either party.

The question of law for the opinion of

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the Court is—‘Was I right in holding that the onus of proving that his supervening incapacity was due to his accident was on the appellant?’”

Argued for appellant — The Sheriff was wrong. There was a continuing liability to pay compensation. The onus accordingly lay on the employer, who was seeking to upset the contract. He must show cause why compensation should be ended— M'Callum v. Quinn, 1909 S.C. 227 (Lord M'Laren at 228), 46 S.L.R. 141. It required to be established affirmatively by proof that the workman's present incapacity was not the result of the original accident. (2) Esto that the onus was on the workman, it had been discharged. At the proof there was no evidence to support the Sheriff's conclusion. The evidence was all in the workman's favour. The Sheriff had proceeded entirely contrary to evidence—see Mackinnon v. Miller, 1909 S.C. 373 (Lord President at 378), 46 S.L.R. 299; Sneddon v. Greenfield Coal and Brick Company, Limited, 1910 S.C. 362, 47 S.L.R. 337.

Argued for respondents—The Sheriff was right. The employer was, in the first instance, pursuer in the issue when he made application that compensation should be stopped— Baker v. Jewell, [1910] 2 KB 673. It was enough for him to prove that incapacity had ceased at the time of application. The arbiter was then entitled to terminate the weekly payment as from the date of the application — Donaldson Brothers v. Cowan, 1909 S.C. 1292, 46 S.L.R. 920. It was no doubt true that the medical referee's certificate by itself did not bar a future application if there was supervening incapacity — King v. United Collieries, Limited, 1910 S.C. 42, 47 S.L.R. 41. The workman must, however, prove that the supervening incapacity was due to the original accident. He must satisfy the requirements of section 1 of the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), just as if he were making an original application. The case of M'Callum v. Quinn ( cit. sup.) was different. The employer there had not proved that incapacity had ceased. He had not discharged the onus under section 15 of the first schedule of the Workmen's Compensation Act ( cit. sup.).