Kennedy v. William Dixon, Ltd [1913] ScotLR 453 (18 February 1913)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] Scottish Court of Session Decisions You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kennedy v. William Dixon, Ltd [1913] ScotLR 453 (18 February 1913) URL: https://www.bailii.org/scot/cases/ScotCS/1913/50SLR0453.html Cite as: [1913] ScotLR 453, [1913] SLR 453 [ New search ] [ Printable PDF version ] [ Help ] SCOTTISH_SLR_Court_of_Session Page: 453 ↓ Court of Session Inner House Second Division. Sheriff Court at Hamilton. Tuesday , February 1913 . 50 SLR 453 Kennedy v. William Dixon, Limited. Subject_1 Master and Servant Subject_2 Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58), Sched. 1 (15) Subject_3 Certificate of Medical Referee Subject_4 Ambiguity. Facts: An arbitrator under the Workmen's Compensation Act 1906 is entitled to send back to the medical referee for explanation a certificate which is ambiguous. Headnote: The Workmen's Compensation Act 1906 (6 Edw. VII, c. 58), Schedule I (15) enacts—“The medical referee to whom the matter is referred shall, in accordance with regulations made by the Secretary of State, give a certificate as to the condition of the workman and his fitness for employment … and that certificate shall be conclusive evidence as to the matters so certified.” In an application for review of the compensation payable under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) by William Dixon, Limited, Holytown, respondents , to Charles Kennedy, miner, Wishaw, appellant , the Sheriff-Substitute at Hamilton (Hay Shennan) , acting as arbitrator, ended the compensation, and at the request of the appellant stated a Case for appeal. The Case stated—“(1) The appellant, on or about 22nd December 1911, received injury to his right eye in the course of his employment as a miner with the respondents at their Carfin Colliery. (2) The defenders paid compensation to the appellant at the rate of ten shillings and one penny per week down to 12th August 1912. No question was raised in the present arbitration as to the compensation for the period between 12th August 1912 and 18th November 1912. (3) Parties lodged a joint minute upon 9th November 1912 in the following terms:—‘In respect that the said Charles Kennedy, on or about 22nd December 1911, received an injury to his right eye while in the course of his employment with the defenders at their Carfin Colliery, and by agreement between the parties was paid compensation under the Workmen's Compensation Act 1906, and in respect the defenders now aver pursuer has so far recovered from his injury as to be fit for light work, which contention pursuer denies, and the parties being at variance and no agreement being likely to be arrived at: Therefore the said Charles Kennedy and the said William Dixon, Limited, crave the Court, in terms of section 15 of the First Schedule to the Workmen's Compensation Act 1906, to refer the matter to the medical referee, being an eye specialist, including in such reference the question whether any incapacity from which the said Charles Kennedy may now suffer is due to said accident.’ (4) The reference was Page: 454 ↓ sent by the Sheriff-Clerk on 12th November 1912 to Dr Freeland Fergus, Glasgow, being a medical referee under said Act, who reported on 18th November 1912 as follows:—‘ I hereby certify as follows—1. The said Charles Kennedy is now recovered from a serious injury to the right eye which has completely and permanently deprived him of the use of the eye. The injured organ is now quite quiet, and there is no pain even on deep pressure, and his condition is such that he is fit for any work which can be done on the surface by a man with one eye. 2. The incapacity of the said Charles Kennedy is not now due to the accident although it has been so probably till now. There is a distinct colour scotoma present, which I believe is due to his use of strong tobacco.’ “I was of opinion that, this being a reference by agreement under Schedule I (15) of the Workmen's Compensation Act 1906, the second answer by the medical referee was conclusive on the question of the cause of the appellant's existing incapacity, and that I was bound to end the appellant's compensation. While my impression from reading the combined findings was that possibly the medical referee intended by the second answer merely to find that the physiological effects of the accident had ceased, and determined, I was of opinion that looking to the absolute terms of the second finding I was not entitled to submit it to construction. Further, I was of opinion that in the case of such a reference I had no power to send the report back to the medical referee for explanation. Accordingly on 5th November 1912 I ended the compensation as from 18th November 1912.” The question of law, inter alia , was—“Had I power to send the report back to the medical referee for explanation?” Judgment: Lord Dundas — [After dealing with questions with which this report is not concerned] —I should like to add a single word—though it is not necessary to do so, looking to the way in which the case is to be disposed of—in regard to the third question put to us. The learned arbiter expresses the opinion that in the case of a reference like this he had no power to send the report back to the medical referee for explanation. I do not agree with that view. Where the report of a referee is unintelligible to the arbiter, or ambiguous, or open to construction, I can see nothing to prevent him sending back the report for an explanation as to its meaning. Lord Salvesen — [After dealing with questions with which this report is not concerned] —I entirely agree with what Lord Dundas has said, and I think it is quite necessary that we should express our opinion because of the view which the Sheriff-Substitute has taken. I cannot lend any countenance to the view that when there is a living man who has given a report, and there seems to be great difficulty in getting at his meaning, one should be compelled to solve that difficulty on a construction of the language he has used when the readiest method of getting at his meaning is to ask the man himself. I therefore disagree with the learned Sheriff in holding that his hands are tied by the statute or by any other consideration from asking the medical referee what he meant if there is an obvious ambiguity in his report. Lord Guthrie — [After dealing with questions with which this report is not concerned] —I agree also in the view expressed by Lord Dundas and by Lord Salvesen that the Sheriff was wrong in thinking that, the medical referee's findings being ambiguous, he was not entitled to send them back to ascertain exactly what was meant. The Lord Justice—Clerk concurred. The Court answered the question of law in the affirmative. Counsel: Counsel for the Appellant—Crabbe Watt, K. C.—J. A. Christie. Agents—St Clair Swanson & Manson, W. S. Counsel for the Respondents—Horne, K. C.—Strain. Agents— W. & J. Burness, W. S. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/scot/cases/ScotCS/1913/50SLR0453.html