Scottish Court of Session Decisions

In an arbitration in the Sheriff Court at Lanark under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) between the Coltness Iron Company, Limited, Forth, appellants, and Thomas Brownlee, miner, Forth, respondent, to fix the amount of compensation payable by the appellants to the respondent in respect of total incapacity for work, due to insanity, the Sheriff-Substitute ( Scott Moncrieff) awarded compensation, and stated a Case for the opinion of the Court.

The Case stated—“This is an arbitration brought under the Workmen's Compensation Act 1906 in the Sheriff Court of Lanarkshire at the instance of the respondent in which the Sheriff was asked to award him compensation under the said Act at the rate of 14s. 5d. per week from 5th November 1913 in respect of injuries sustained by him through accident arising out of and in the course of his employment with the defenders on 28th February 1912.

The case was heard before me and proof led on the 17th day of November 1916, when the following facts were admitted or proved:—1. That the respondent while in the employment of the appellants upon 28th February 1912 met with a severe accident to the scalp of his head, which incapacitated him from work and caused his removal to the infirmary. 2. That liability upon the part of the appellants was admitted and compensation paid until 5th November 1913 although not under a recorded memorandum of agreement. 3. That upon last-mentioned date compensation was stopped, but that it was subsequently offered at a reduced rate, and that the respondent refused to accept it. 4. That in February 1915 the appellants offered to pay to the respondent the sum of £50 in full settlement of his claim, and that respondent accepted said offer upon 24th March 1915, received the money and granted a receipt, also signing a memorandum of agreement which was subsequently recorded upon 3rd April following. 5. That in the following month of December the respondent brought an action of reduction of said receipt and memorandum in the Court of Session upon the ground that when he signed said document he was of unsound mind. 6. That upon 6th July 1916, after certain proof had been led, the

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Lord Ordinary of consent granted the reduction sought. 7. That there is nothing to show that prior to the accident the respondent was other than a healthy man in mind and body. 8. That the respondent is now and has been since at least September 1914 insane, and that he is incapacitated for work at present in consequence of his insanity. 9. That there is no physical incapacity for work nor has there been for some time. 10. That the respondent's average earning amounted to £1, 8s. 10d. per week.

I found that while the respondent had failed to prove that the insanity which accounts for his present incapacity is due to the accident, the appellants had not proved that a new cause has intervened, and that the onus being in point of law upon them they had not discharged it. I therefore found the respondent entitled to compensation at the rate of 14s. 5d. per week as from 5th November 1913 until further orders of Court. I also found the respondent entitled to expenses, and certified Doctors Robertson and Cotterill as skilled witnesses.”

The questions of law for the opinion of the Court were—“1. Was I right in the circumstances in holding that the onus was on the appellants to dissociate the cause of respondent's incapacity since September 1914 from the injury sustained by him in February 1912? 2. In the circumstances was I entitled to award compensation to the pursuer?”

The Sheriff-Substitute appended the following note to his judgment:—

Note.—“In my opinion an important question in this case is upon whom lies the onus of proof? There are two recent decisions in the Court of Session dealing with the subject. In one of them the onus was held to be on the employer, in the other upon the workman. The former is that of M'Callum v. Quinn, 1909 S.C. 227, 40 S.L.R. 141, in which the arbitrator found that a workman was unable to work in consequence of a cardiac affection which was not proved to be in any way connected with the injuries for which compensation was payable. He also found it not proved that a workman still suffered from such injuries as to be incapable. It is the first of these findings which bears upon the present case. Lord Pearson says (and the other Judges do not differ)—“I think it rests upon the employer to prove (1) that the supervening cause was not connected with the original injuries, and (2) that the original injuries have ceased to operate as an effective cause of incapacity.” I infer from this that even if the arbitrator had found that incapacity from the original injuries had ceased, in Lord Pearson's opinion the employer would have still had to disconnect the supervening cause from the original injuries. This is what in my view they failed to do in the present case. I consider that neither party has succeeded in establishing what each seeks to prove. There is a conflict of medical evidence. There are presumptions which favour both sides. A man, hitherto healthy in mind and body, sustains a severe injury to his head—is in fact scalped. After an interval undoubted symptoms of insanity manifest themselves and still continue. An eminent alienist authority sees a clear connection of cause and effect between the accident and the present condition. On the other hand there seems to have been no actual injuries to the material of his brain, and slight, if any, concussion, and the symptoms of insanity took a very considerable time to develop, though they may have been preceded by those of a neurasthenic character. Two specialists going upon these facts, and also upon the form of the insanity which is known as persecutory paranoia, consider that there is no connection between the brain injury and his present mental condition. The verdict which I return is one of not proven. There are two circumstances in which the case of M'Callum differs from the present. In the former there was a recorded memorandum of agreement entered into after the accident; here there was none. In that case also it was the employer who came into Court; here it is the workman. But while it is only upon a recorded agreement that a workman can do diligence, it seems to me that where parties are at one as to the accident and the liability for compensation, and compensation is actually paid, the absence of a recorded document does not affect the position of the workman. As to the fact that in this case it is the employee who comes into Court that certainly throws upon him a certain onus, but this onus can shift. Here it has been proved that he was incapacitated, that compensation was paid and offered even at a date two years after the accident, that (and this most important) his recovery has never been established either by certificate of medical referee or decision of an arbitrator, and finally, that he is presently unable to work. Does it not lie upon the defenders in this state of matters to prove that a new cause of incapacity has intervened? I take the view that it does? The other case to which I have referred is that of M'Ghee v. The Summerlee Iron Company, Limited, 1911 S. C. 870, 48 S. L. R. 807. In that case the arbitrator found himself in the same position as I now find myself. He held that the workman had not proved that a supervening incapacity was due to the accident, but also that if the onus was on the employers they had not discharged it. He was of opinion, however, and the Court of Appeal agreed with him, that the burden of proof lay with the former and decided accordingly. But in this case a medical referee had already certified that the workman was fit for his former work, and it was upon this ground that he was held bound to prove that his renewed incapacity was due to the accident. Here there has been no such evidence of recovery, and in this fact lies the distinction between M'Ghee's case and the one now under consideration.”

The appellants argued—The class of injury in the present case was quite different from the injury in any other case in which the onus had been laid on the employers to dissociate it from the resultant incapacity for work of the employee. It was a very high onus on the employers to have to prove that the injury could not possibly have been the

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cause of the incapacity, and especially was this so where, as in the present case, the new injury was so entirely different from the original injury. A long interval elapsed between the date of the accident and the first appearances of symptoms of insanity. Counsel referred to M'Callum v. Quinn, (1909) S.C. 227, 46 S.L.R. 141; M'Ghee v. The Summerlee Iron Company, Limited, 1911 S.C. 870, 48 S.L.R. 807.

The respondent argued—The employers here were the pursuers, and as such ought to prove their case. The workman established the original issue when he obtained compensation. In the present case there was an incapacity lasting for twenty months, whereupon insanity supervened. It resembled other cases where some physical defect supervened. However improbable the result of the injury might be, if there was evidence of it the Court was bound to accept it. The second finding here amounted to an admission of incapacity for work, and the employers had to show that it was unconnected with the original injury. The fact that insanity was a possible result of the injury sustained was established by the Sheriff-Substitute. Counsel cited Dunham v. Clare, [1902] 2 KB 292; Euman v. Dalziel & Company, 1913 S.C. 246, 50 S.L.R. 143; Malone v. Cayzer, Irvine, & Company, 1908 S.C. 479, 45 S.L.R. 351; Wishart v. Gibson & Company, 1914 S.C. (H.L.) 53, 51 S.L.R. 516.

At advising—