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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mackinnon, Judicial Review Decision Medical Referee [2002] ScotCS 275 (16 October 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/275.html Cite as: [2002] ScotCS 275, 2003 SCLR 283

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OUTER HOUSE, COURT OF SESSION
P638/02	OPINION OF LORD JOHNSTON In Petition of DONALD McKINNON Petitioner; for Judicial Review of a decision of a Medical Referee in terms of the Police Pensions Regulations 1987 (as amended) Respondent;     ________________

 

 

Petitioner: Ellis, Q.C.; Balfour & Manson

Respondent: Anderson, Q.C.; Edward Bain

16 October 2002

 

1. In this petition for judicial review, the petitioner challenges the finding of a Medical Referee in the context of his claim for an enhanced pension by reason of him being compulsory retired from the Strathclyde Police on grounds of disability.
2. The matter is governed by the Police Pensions Regulations 1987, the salient parts of which are as follows:

Regulation A11 provides inter alia as follows -

"(1) A reference in these Regulations to an injury received in the execution of duty by a member of a police force means an injury received in the execution of that person's duty as a constable ...

(2) For the purposes of these Regulations an injury shall be treated as received by a person in the execution of his duty as a constable if -

(a) the member concerned received the injury while on duty or while on a journey necessary to enable him to report for duty or return home after duty, or ...".

Regulation A12 provides inter alia as follows -

"(1) A reference in these Regulations to a person being permanently disabled is to be taken as a reference to that person being disabled at the time that the question arises for decision and to that disablement being at that time likely to be permanent.

(2) ... disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the Force as the case ma be ...".

Regulation A13 provides -

"(1) for the purposes of these regulations disablement or death or treatment at a hospital shall be deemed to be the result of an injury if the injury has caused or substantially contributed to the disablement or death of the condition for which treatment is being received."

Regulation A20 provides inter alia -

"Every regular policeman may be required to retire on the date on which the Police Authority determine that he ought to retire on the ground that he is permanently disabled for the performance of his duty:"

Schedule A provides inter alia as follows -

"'injury' includes any injury or disease, whether of body or of mind, 'injury received in the execution of duty' has the meaning assigned to it by Regulation A11 and 'the result of an injury' shall be construed in accordance with Regulation A13;"

The substantive right to an injury award is contained in Regulation B4 which provides inter alia as follows -

"(1) This regulations hall apply to a person who ceases or has ceased to be a member of a police force and is permanently disabled as a result of an injury received without his own default in the execution of his duty ...

(2) A person to whom this Regulation applied shall be entitled to a gratuity and, in addition, to an injury pension, ..."

The mechanisms for determining the relevant medical questions which govern the entitlement to an injury award are contained in Part H of the Regulations.

Regulation H1 provides inter alia as follows -

"(1) Subject as hereinafter provided, the question whether a person is entitled to any and, if so, what awards under these Regulations shall be determined in the first instance by the Police Authority.

(2) Where the Police Authority are considering whether a person is permanently disabled they shall refer for decision to a duly qualified medical practitioner selected by them the following questions -

(a) whether the person concerned is disabled;

(b) whether the disablement is likely to be permanent;

and if they are further considering whether to grant an injury pension shall so refer the following questions:-

(c) whether the disablement is the result of an injury received in the execution of duty, and

(d) the degree of the person's disablements; ...

(4) the decision of the selected medical practitioner on the questions referred to him under this Regulation shall be expressed in the form of a certificate and shall, subject to Regulations H2 and H3, be final."

Regulations H2 provides inter alia as follows -

"(2) If the person concerned is dissatisfied with the decision of the selected medical practitioner as set out in his certificate, he may, within fourteen days after being supplied with the certificate or such longer period as the police authority may allow, and subject to in accordance with the provisions of Schedule H, give notice to the Police Authority that that he appeals against the said decision, and the Police Authority shall notify the Secretary of State accordingly and the Secretary of State shall appoint an independent person or persons (hereafter in these regulations referred to as the 'Medical Referee') to decide the appeal.

(3) The decision of the Medical Referee shall, if he disagrees with any part of the certificate of the selected medical practitioner, be expressed in the form of a certificate of his decision on any of the questions referred to the selected medical practitioner on which he disagrees with the latter's decisions, and the decision of the Medical Referee shall, subject to the provisions of Regulation H3, be final."

Regulation H3 provides certain limited grounds of reconsideration of the relevant medical questions.

The procedure for the appeal to the Medical Referee is set out in Schedule H.

Paragraph 3 thereof provides -

"A medical referee shall appoint a time and a place for interviewing the appellant and for such further interviews or examinations as he may consider necessary and shall give reasonable notice thereof to the appellant and Police Authorities."

Paragraph 4 thereof provides -

"At any time before any interview with the Medical Referee the appellant or the Police Authority may submit to the Medical Referee a statement relating to the subject matter of the appeal, and if they so submit a statement they shall send a copy thereof to the other party."

3. Thereafter the petitioner goes on to aver:

"6. That the Petitioner accepts that he is permanently disabled in terms of the Police Pensions Regulations 1987 (as amended). The Petitioner however contends that his disablement which is due to his psychological condition is a permanent disablement which is the result of an injury received in the execution of duty as defined in those Regulations. The Petitioner suffered a road traffic accident whilst on duty as a Police Inspector on or about 1 November 1995. As a result of that incident the Petitioner suffered from a psychological condition. That incident precipitated a series of poor reports and conflicts with colleagues at work whereas prior to that time the Petitioner had enjoyed good assessments. A copy of the Closed Record (as further amended) in an action at the instance of the Petitioner against the driver in that road traffic accident which sets out the Petitioner's contentions in that regard is produced.

7. That the Petitioner was compulsorily retired from Strathclyde Police on 3 November 1996. This retirement followed upon an examination conducted by Dr. W.D.S. MacLay on 7 October 1996 and the subsequent issue of a Certificate by Dr. McLay. Dr. McLay was the Medical Practitioner appointed by the First Respondents under Regulation H1. His certificate dated 3 November 1996 is produced. Dr. McLay's determination was that the pursuer was suffering from stress and was permanently disabled in terms of the Regulations. He did not however certify that the disablement was the result of an injury received in the execution of the Petitioner's duty. By letter dated 15 November 1996 the Petitioner appealed said decision on the ground that his disablement was the result of an injury received in the execution of his duty in terms of the Regulations. The Second respondents' predecessor by letter dated 5 February 1997 appointed the Medical Referee in terms of Regulations H2.

8. That a Medical Referee issued the Petitioner with an appointment for interview at 11.30am on 14 March 1997. The interview duly took place. By letter dated 13 March 1997 which was not intimated to the Petitioner or his advisers Dr. McLay sent to the Medical Referee a statement setting out his contentions as to why the Petitioner's disablement was not the result of an injury received in the execution of his duty. In particular that letter put forward certain views about the effects of the said road traffic accident. The Petitioner was unaware of that letter at interview and at any time before the Medical Referee's decision dated 11 June 1997. The decision from the Medical Referee is produced. The letter containing that decision revealed to the Petitioner and his advisers the letter from Dr. McLay for the first time. The letter containing the Medical Referee's decision also makes it clear that the letter from Dr. McLay was taken into account by the Medical Referee when reaching his decision. The conclusion of the Medical Referee was that the Petitioner was suffering from chronic anxiety and depression of moderate severity and that it was appropriate for him to be retired. It further dealt with the appeal in relation to whether the disablement was the result of an injury received in the execution of duty by stating "" am unable to identify any specific injury or specific stress factor relating to his job, which could account exclusively for his symptoms". In consequence no certificate was issued as there was no disagreement with the views of the selected medical practitioner. As a result the Petitioner is denied an injury award. The Medical Referee's decision is final."

4. Against that background the petitioner alleges that the decision of the Medical Referee was fundamentally flawed in two respects, firstly, that the Medical Referee misdirected himself as to the test to be applied in determining the issue and secondly, that there was procedural unfairness in breach of the relevant regulation, Paragraph 4 of Schedule H that the petitioner had not been given notice of the letter by Dr McLay dated 13 March 1997 which was submitted to the Medical Referee.
5. In that respect, as is apparent from his decision dated 11 June 1997, the Medical Referee had before him that letter but also a report led by Dr Ian Matson on behalf of the petitioner dated 11 February 1997. For the sake of completeness I should mention that I was also referred to a further psychiatric report from a Dr Livingston dated 15 October 1998, some significant time after the determination by the Medical Referee.
6. Before taking the matter any further, I required to note that in paragraph 6 of the Petition the Petitioner perils this case on a road traffic accident which was said to have taken place on 1 November 1995. As I have quoted, he avers specifically that the problems he has related occurred as a result of that accident. It has however to be noted that Dr Matson's report contains no reference even to the occurrence of such a road accident and as far as the decision of the Medical Referee is concerned, while he refers to it, he states specifically on the second page of the letter as follows:

"Whilst he (Mr McKinnon) recounted being involved in a road traffic accident, he denied his anxiety/depressive symptoms related to this accident"

All this has to be looked at in the context or against the background of a civil action of damages raised by the petitioner in the Court of Session in relation to that road accident against the driver of the other vehicle. I was favoured with the copy of the Closed Record in that action which was settled shortly before it went to proof. It has again to be noted in that Record there are substantial averments of psychological problems and work related problems, all of which are attributable in the action to the road traffic accident. On the other hand, it has to be noted that in that Record, the defender puts in issue the extent to which the psychological problems were work related and unrelated to the road accident. These contradictory assertions in relation to the Court of Session action on the one hand and the original applications made apparently to the Medical Referee on the other, formed a fundamental plank of the defender's resistance to the current petition.

7. Before turning to those points, however, I require to record the position of the petitioner which was as follows:
8. In the first place he submitted that the Medical Referee had applied the wrong test in terms of the Regulations having regard particularly to the last sentence of his second last paragraph of the report which is as follows:

"I am unable to identify any specific injury or specific stress factor relating to his job which account exclusively for his symptom."

Counsel submitted that that was not the proper test which should be more broadly based against the background of the working environment and a causal connection between any psychological injury and that work environment. In this respect he referred to R. v Kellam 2000 I.C.R. 632 where Richards J lays out at some length, six aspects of what he considers to be the proper tests at pages 644 and 645 of the report. I do not require to go into this matter in any detail since counsel for the defenders did not dispute that the proper test was being discussed. His position was that this petitioner was periled in his pleading on the issue of the road accident which had been expressly discounted before the Medical Referee and accordingly the conclusions drawn by the Medical Referee could not be challenged against that background, whatever might be the overall position revealed in Dr Matson's report with regard to the possible existence of a stress related illness caused by the working environment.

9. Counsel for the petitioner's second position was that the admitted breach of the Regulation with regard to the disclosure of documents with regard to the letter from Dr McLay rendered the decision of the Medical Referee invalid on grounds of breach of statutory Regulation and also common law unfairness. In this respect however counsel for the respondent's position was that, given the background on which the petition was presented, the letter of Dr McLay which also discounted the road accident to any material extent was nothing to the point.
10. I should say at once that with this latter proposition I entirely agree. I think nothing turns on the fact that the letter from Dr McLay was sent directly to the Medical Referee given the comment by him relating to the irrelevance of the road accident, and was not shown to the petitioner, given the way this petition is presented to me, namely periled on that very issue.
11. I am therefore required to consider the issue of whether or not the decision of the Medical Referee is unsound or invalid by reason of him having applied the wrong test. In doing so however I require to consider some powerful submissions put forward on behalf of the defenders against the whole principle of this particular application.
12. Counsel for the respondent's position essentially was that what the petitioner was seeking to do at this stage was nothing more or less than a second bite at the cherry on a wholly changed position. He submitted that the petitioner, having gone to the Medical Referee discounting the relevance of the road accident, could not now present an application to this court for review of the decision on a wholly different basis namely that the road accident was responsible for the whole position. The matter was compounded, it was submitted, by the existence and ultimate settlement of the common law action in the Court of Session, indicating effectively that, at various stages of this process, the petitioner was trying to ride two horses and was now simply seeking to come back far too late to reopen the issue, raised by this petition.
13. In relation to the passage of time, counsel for the respondent had an even more powerful submission to the effect that this application was barred by reason of passage of time and therefore mora. In that respect he referred to a decision of my own namely Kwiksave Stores Ltd v The Secretary of State for Scotland 1999 S.L.T. 193 where I endeavour to set out what I regard as certain propositions that could apply to a plea of mora in application for judicial review. In that case it was a decision of a minister but that is not in my opinion a material distinction.
14. It is important to note that counsel for the petitioner could not offer me any explanation as to why there had been, firstly, the initial delay between the decision of the Medical Referee and the apparent decision, taken by reference to correspondence presented to me, in the Spring 2001 to bring an application of judicial review and thereafter the further delay of almost a year before the application was actually brought. The total passage of time from the date of Medical Referee's decision is over 5 years. Counsel for the respondent's position was that that situation was wholly unacceptable and in any event he pointed out that if this application were to succeed, the maximum that could be sought was a further consideration by the Medical Referee of the position that was obtaining, at least at the time he was considering it, if not at the time of the compulsory retirement some six months previously. This, said counsel, was an impossible exercise and it was certainly wholly inappropriate, he submitted, for counsel for the petitioner at this stage to seek to make further submissions to the Medical Referee based upon the subsequent medical history. In any event, this involved a departure from the original position by reason of the apparent now dependence upon the road accident. Looking at the matter across the board, counsel submitted that at the end of the day the discretion that is always invested in the court exercising its supervisory jurisdiction must be exercised in favour of the defender on grounds of general fairness and equity.
15. In my opinion, there is a discretionary position that governs this type of proceeding before this Court. I think it highly relevant that at the original application for enhanced pension, the road accident was effectively discounted, if not ignored. I also regard as highly significant that it became the basis for a claim for all apparent psychological problems which have occurred in the subsequent road accident. This seems to me to be approaching, if not resembling, the notion of approbate and reprobate, something which the Scots courts have never recognised as an appropriate position for any litigant to adopt, whether in one or more than one litigation. If that is an over-extreme view, I am entirely satisfied on the discretionary basis that the delay that has occurred in this case would make it wholly inappropriate for the petitioner at this stage to be allowed to review the whole question of enhanced pension against the background that has developed particularly in relation to the road accident and its apparent contributory cause to the problems. If that was not enough, I agree with counsel for the respondent that what the Medical Referee would be asked to do if I grant this application, is essentially an impossible task after the lapse of time that has occurred, and are wholly inappropriate if the subsequent medical history is to be discussed.
16. For these reasons I consider that this is one of these exceptional cases where an application for judicial review should be refused on a discretionary exercise by reason of the lapse of time that has occurred since the original decision that is being attacked was promulgated and against the background that this application to this court is promoted in the absence of any satisfactory explanation as to why that delay has occurred. Certainty of disposal is an important element in good administration which is not achieved by very late appeals. If I am balancing the interests of justice between the parties on the basis of prejudice, while obviously the petitioner will be prejudiced if the application is refused, there is equal, to my mind, prejudice to the respondents if is allowed to proceed after this passage of time.
17. Counsel for the respondent also raised a question of competency, having regard to the fact that the Regulations do grant a limited right of appeal to the Sheriff from a decision of the Medical Referee. This he submitted was something that was available to the petitioner and thus excludes at this stage of the process an application for judicial review. Counsel for the petitioner's response to this was to assert that the general supervisory jurisdiction of the court prevails in any event. In that respect he referred me to the decision of Lord Hamilton Philips v Strathclyde Joint Police Board 2001 S.LT. 1271. In any event he submitted that the limited power of appeal to the Sheriff did not go so far as to challenge the validity of the Medical Referee's decision and therefore this court had jurisdiction.

I think it is a nice question as to whether the limited rights of appeal do exclude the general supervisory jurisdiction of the court in the context, but if I had to decide the matter I would have preferred the approach that the supervisory jurisdiction is always available, albeit to be exercised on a discretionary basis.

18. However I did not decide this case on that basis. In my opinion, this application quite simply becomes too late in the absence of an acceptable explanation and on that basis alone it will be refused.
19. The petition is dismissed.