Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), section 8, is quoted in the immediately preceding case of Garrett v. Waddell & Son. By order of the Secretary of State, dated 22nd May 1907, the provisions of section 8 were extended, inter alia, to nystagmus.

Peter Winters, miner, Uddingston, claimed compensation under the Workmen's Compensation Act 1906 from Robert Addie & Sons Collieries, Limited, Uddingston, and being dissatisfied with a determination of the Sheriff-Substitute at Hamilton (A. S. D. Thomson), acting

Page: 941↓

as arbitrator under the Act, appealed by Stated Case.

The Case stated—“This is an arbitration in which the appellant claimed an award of compensation under the said Act in respect, he alleged, that he had been a miner in the respondent's employment for a considerable period prior to 25th July 1910, and was from 9th September 1910 totally incapacitated for work as a result of an affection of the eyes known as miner's nystagmus, and was certified on 4th October 1910 to be suffering from and to be disabled by said disease, which disease is one of the scheduled diseases under said Act.

The case came before me, the appellant producing and founding upon (1) A certificate of disablement granted by Doctor John Goff, Bothwell, one of the certifying surgeons under the said Act, and (2) A certificate granted by Dr Freeland Fergus, Glasgow, a medical referee under said Act, to whom the respondents had appealed against the said certificate of the certifying surgeon.

The said certificate of the certifying surgeon is herewith produced. It bears that the surgeon having personally examined the appellant on 4th October 1910, certifies that he was suffering from nystagmus; that he was thereby disabled from earning full wages at the work at which he had been employed, and that the disablement commenced on 25th July 1910. It also bears that the leading symptom of the disease is ‘inability to see in artificial light.’ The said certificate by the medical referee, dated 4th November 1910, is herewith produced, and bears that the referee decided as follows—‘Subject to the note which I have sent with this to the Sheriff-Clerk-Depute, I dismiss the appeal of Messrs Addie against the certificate of disablement given to Peter Winters on the 4th day of October 1910.’

The ‘note’ referred to is also herewith produced, and is as follows—‘This case presents features of special importance, and questions arise which seem to me as not admitting of a categorical answer.

Winters unquestionably has nystagmus, and I believe it to be miners' nystagmus. It is, however, of a very mild type, and taking the nystagmus per se, I would certify Peter Winters as being able to work above ground. In severe cases I would prefer a man to refrain from all work for some time. The difficulty of vision does not depend largely or even materially on the nystagmus, but on the fact that there is disease, and that not connected with his work, in the choroid of each eye, which is worse in the right. When on the 25th of July the works' manager objected to Winters going below on account of his defective vision, I have no doubt that the defective vision was not due to the nystagmus but to the night blindness which invariably accompanies this form of disease. I have no information that would lead me to suppose that miners' nystagmus was present on the 25th of July. The man himself wished to go down the pit on that date. In view of a certificate granted by Dr John Goff, I am of opinion that he had it on the ninth day of September 1910.’

The respondents lodged a note of defence to the appellant's claim for an award, in which they plead, ‘The claim of the pursuer is resisted on the ground that the slight nystagmus from which he suffers is not the cause of his incapacity for work, but that same is due to disease unconnected with his employment with the defenders. Reference is made to the report of the medical referee, and to the note attached thereto, in which the referee says …’ and they proceed to quote a portion of the note by the medical referee above set forth at length.

The parties were heard upon the whole case, and after consideration I pronounced an interlocutor on 21st February 1911, having a note appended in which I set forth the grounds of judgment. By the interlocutor I found, in terms of the report of the medical referee, Doctor Freeland Fergus, that the defender suffers from miners' nystagmus, which began on 9th September 1910, but that it is of a very mild type, and is not the cause of, nor does it materially contribute to, his incapacity for work, which incapacity is due to disease unconnected with his employment, and I therefore dismissed the petition and found the appellant liable in expenses.

These findings were based upon the view that the report and note of the medical referee must be read as one document, and that a fair construction of the document warranted these findings and the judgment which followed upon them. I refused the appellant's motion for a proof, but offered to send the report and note back to the medical referee that he might either amend it or answer specific questions to be adjusted by parties for his consideration. The offer, however, was declined.”

The questions of law for the opinion of the Court are—(1) Was the arbiter entitled to read the note along with the report of the medical referee? (2) Did the decision of the medical referee warrant the findings and judgment of the arbiter? (3) Was the medical referee, when dismissing the appeal against the certificate of disablement, entitled to determine the date of disablement and to alter the date of disablement certified by the certifying surgeon?

Argued for the appellant—The duties of a certifying surgeon or medical referee were confined to the matters referred to them in section 8 of the Act, and if anything further were added by either as a note, that was irrelevant, and could not be referred to for the purpose of negativing or qualifying the actual decision. Here the decision put the miner in the same position as if there had been an accident. It was not within the scope of the referee's remit to find that the workman had recovered.

Argued for the respondent—There were three conditions or requisites in section 8 of the Act, which the certifying surgeon or medical referee had to hold as

Page: 942↓

satisfied in order to put the workman in a position equivalent to where an accident had occurred, namely, (1) that the workman was suffering from a scheduled industrial disease, (2) that he was thereby disabled, (3) that the disease was due to the nature of the employment. Here the referee had negatived the second. His decision was final.

At advising—