Halliday v Barber, Walker & Co Ltd

 

Halliday v Barber, Walker & Co Ltd

HEALTH; Health and safety at work: EMPLOYMENT; Other Employment: ADMINISTRATION OF JUSTICE; Courts

COURT OF APPEAL

SCOTT, DU PARCQ AND TUCKER LJJ

14 DECEMBER 1945, 17 JANUARY 1946

Workmen’s Compensation – Costs – Travelling expenses of workman attending for examination by medical referee – No arbitration actual or pending – Jurisdiction of county court judge – Workmen’s Compensation Act, 1925 (c 42), s 19(2), Sched 1(7) – Workmen’s Compensation Rules, 1926 (SR & O, 1926, No 448), rr 57(9), 76(4).

County Courts – Jurisdiction – Travelling expenses of workman attending for examination by medical referee – No arbitration actual or pending.

The respondent, a miner, was seriously injured in 1940. Total incapacity resulted for a time and the appellants, his employers, paid compensation, without arbitration, on that basis. Subsequently the compensation was, by agreement, reduced to partial payment. In 1944 the respondent was certified by the medical referee as fit only for the lightest work and as suffering from 75 per cent physical disability. The appellants were not able to provide light work and paid compensation on the basis of total incapacity. After the certificate was issued the respondent asked for his expenses of travelling to the medical referee, but the appellant’s insurance company on their behalf refused. In 1945 the appellants again took the necessary steps under the Workmen’s Compensation Act, 1925, to obtain a diminution of the weekly payment, but without success, and a certificate in the same terms as in 1944 was issued by the medical referee. The appellants continued to pay compensation on the basis of total incapacity. The county court judge to whom the matter was referred by the registrar ordered the appellants to pay the expenses incurred by the respondent in attending upon the medical referee:—

Held – Scott LJ dissenting): as no arbitration had taken place and none was pending the county court judge had no jurisdiction to make such an order.

Notes

The right of a workman to travelling expenses on attending for medical examination in consequence of an order made under the Workmen’s Compensation Act, 1925, s 19, depends upon the existence of a specific rule giving that right. The county court judge apparently regarded the power to award the expenses as existing either under rr 57 (9) or 76 (4). Rule 57 (9), however, does not appear to be applicable in the absence of some such words as “incidental to” or “occasioned by” the order, and it is difficult to regard these as “proceedings” taken for which no provision is made, within rule 76 (4). They appear rather to be proceedings within r 57 (9), which is, as indicated above, inapplicable to the expenses in issue in this case. The court differs in its views upon the applicability of Brown v Sherwood Colliery Co to proceedings where there has been no arbitration and no pending arbitration, Du Parcq LJ, holding that the case cannot be so widely construed as to include such proceedings within its ambit.

For the Workmen’s Compensation Act, 1925, Sched 1 (7), see Halsbury’s Statutes, Vol 11, p 594.

Cases referred to in judgments 

Brown v Sherwood Colliery Co Ltd [1940] 2 All ER 25, [1940] 1 KB 726, Digest Supp, 109 LJKB 761, 162 LT 316.

Richards v United National Collieries Ltd (1927) 96 LJKB 716, Digest Supp, 137 LT 467, 20 BWCC 465.

Appeal

Appeal by the employers from an award of His Honour Judge Caporn, made at Worksop County Court, and dated 26 June 1945.

Phineas Quass for the appellants.

F W Beney KC and G C Dare for the respondent.

17 January 1946. The following judgments were delivered.

SCOTT LJ. The question in this appeal is whether the county court judge acting under the Workmen’s Compensation Act, 1925, had jurisdiction to order that the employer should pay the expense incurred by the workman in making two journeys to the consulting room of the medical referee acting in the case, which he was “required” to make by an order of the registrar made on 23 March 1945, in the terms of Form 51 of the Appendix to the Workmen’s Compensation Rules, 1926. The order provided that the workman should attend at such time and place as might be fixed by the medical referee. The workman, who had been a collier when injured, duly attended on the day fixed by the medical referee, but the medical referee was unable to see him that day, and fixed the next day when the workman again attended. A total expense of 14s. for travelling on the two days was incurred by the workman.

The workman had been seriously injured in 1940. Total incapacity resulted for a time and compensation was paid, without arbitration, on that basis. Subsequently it was by agreement reduced to partial payment; but on 1 July 1944, the workman was certified by the medical referee as fit only for lightest work, and as suffering from 75 per cent physical disability. The employer was not able to provide light work, and paid compensation on the basis of total incapacity. The workman asked, after the certificate was issued, for his expenses of travelling to the medical referee, but the employer’s insurance company on behalf of the employer refused. In Mar 1945, the employer again took the necessary steps to obtain a diminution of the weekly compensation under sects 11, 12(3) of the Act, proceeding under sects 18, 19(2). The result was again in the workman’s favour, as the medical referee gave a certificate in the same terms as in June, 1944; and the employer duly continued to pay compensation on the basis of total incapacity. The “matter” was duly docketed in the county court records as “No 23 of 1945”; and all proceedings were carried out on the Forms 49 to 52 contained in the Appendix to the Workmen’s Compensation Rules. The judge to whom the registrar referred the matter ordered repayment of the expenses, hence this appeal.

The employer’s one and only point is that the county court judge had no jurisdiction to make that order. If he had jurisdiction, no question could be raised in this court as to the exercise by him of his discretion. Counsel for the employer argued the case clearly and forcibly, but he did not convince me. I agree with him that statutory power to make the order must be found, but I think it is to be found in the County Courts Act, 1934, and the Workmen’s Compensation Rules made under the Workmen’s Compensation Act, 1925. By the Workmen’s Compensation Rules, 1926, r 1, those rules are to have effect under the Workmen’s Compensation Act, 1925, with reference to any matter or proceeding for the regulation of which rules of court may be made under the Act.

The Workmen’s Compensation Act, 1925, Sched 1, contains various provisions as to procedure. Paras 1 and 2 of that schedule give jurisdiction to the county court judge. Para 7 enables him to exercise complete discretion over all costs of and incidental to the arbitration and proceedings connected therewith, subject to rules of court. That paragraph applies whether an “arbitration” under the Act has actually been started or not. An application and order for a reference to a medical referee has been held to be an interlocutory proceeding although no arbitration had taken place or was even contemplated: see Brown v Sherwood Colliery Co Ltd. The judgment of Goddard LJ in that case treats the question broadly and refers to the feature of all the Workmen’s Compensation Acts, which I regard as fundamental, that the settlement of issues between employer and workman by agreement stands on the same footing as settlement by arbitration, and is a part of the machinery of the Act. I have no doubt that “matter No 23 of 1945” was a “proceeding” in the general sense of the word. On the whole, though not without doubt, I think that the words “connected therewith” should be construed as covering any “proceeding” which is one which may be a step precedent to as well as a step towards an arbitration which in default of agreement is under the Act the only solution of a difference between employer and workman.

Our attention was called by counsel for the appellants to Sched 1, of the Workmen’s Compensation Act, 1925, para 9, and the point was made that that paragraph is limited to the fee payable to the medical referee himself. That is so, but that paragraph does not cut down to wide provisions of the earlier paragraphs which I have quoted, and is therefore irrelevant to this appeal. Had the question of discretion been in issue, para 12 would have been relevant, but as the appeal stands it is immaterial.

The only two Workmen’s Compensation rules which may be directly relevant are rules 57 and 76. The former deals with and is headed “Application for Medical Referee under Section 19 of the Act.” I have already pointed out that the forms required by rule 57(2), (3), (4) were used in the present case. Rule 57(5) reads as follows:

‘Before making such order the registrar shall inquire whether the workman is in a fit condition to travel for the purpose of examination, and if satisfied that he is in a fit condition shall by the order direct him to attend at such time and place as the referee may fix, and if satisfied that he is not in a fit condition to travel shall so state in the order of reference; and it shall be the duty of the workman, on being served with the order, to submit himself for examination accordingly.’

Rule 57(9) contains three separate provisions of which the third only may concern us. It provides that the costs of any application to the registrar may be allowed as costs (a) in any subsequent arbitration for the settlement (ie, of the amount) of the weekly payment or (b) on a review (under sect 11) or (c) by special order of the judge on application in that behalf, such application to be made by not less than 4 days’ notice in writing and in accordance with the provisions of RSC, Ord XII, r II, so far as applicable.

In the present case the workman’s application for payment of his travelling expenses was made to the registrar and by him referred to the judge; and I am inclined to think the judge’s order, vice the registrar, that they should be paid, was a special order for costs under the third limit of rule 57(9).

If it does not fall within that provision, I think it is covered by the general clearing up provision of rule 76(4), because in that event “no provision” would have been “made by these rules.”

The only objection to that interpretation of r 76(4) urged by counsel for the appellants is that there was in the present case no “proceeding.” I am satisfied that that contention is erroneous. “Proceeding” is a very wide word, and includes any step authorized by the Workmen’s Compensation Acts, or rules made thereunder, for enforcing any claim of right by either party. That must include a claim by the workman to have the medical issues as to his condition and fitness for employment referred to the medical referee in order that he may obtain the necessary evidence on which to base an application to the judge for an arbitration. That the certificate will be conclusive, when granted, does not make it any the less evidence on the issues. The certificate in the present case shows that the reference was by agreement of both parties. That the word “proceeding” has a very wide meaning (if there were any doubt  about it, which in my opinion there is not) is shown by its use in rr 96, 97, and under item, No 21 of r 97 an application to refer a matter to a medical referee is one of the “proceedings” within the rule which have to be “recorded” in the county court.

Richards v United National Collieries Ltd, to which we were referred, has no bearing on the present appeal. It was a decision that it was not a condition precedent to the employer’s right to have the workman examined by a medical referee that the employer should provide the workman with conduct money to make his journey to the medical referee’s consulting room, as was contended by the workman in that case. The judgments were carefully limited “to that stage” of the proceedings. It was a question of inferring a condition in statutory words conferring a right, when the words were clear and there was no room for such an implication. That decision does not touch the question of costs which alone is before us.

I would hold that the appeal be dismissed with costs, but my brethren disagree and the order of the court will be as they direct. DU PARCQ LJ. In this difficult case I have come to the opposite conclusion from that arrived at by Scott LJ I am not myself prepared to treat the decision of this court in Brown v Sherwood Colliery Co Ltd as an authority which compels me to hold that the costs of a reference to a medical referee, where there has been no arbitration and there is no pending arbitration, may properly be described as “costs of and incidental to the arbitration and proceedings connected therewith.” I say this because the attention of the court was not directed in that case to any question except that which alone was argued, namely, the question whether the order then under discussion was a final or interlocutory order. It must be supposed that the argument proceeded on the assumption that the order was one which there was jurisdiction to make, but that assumption, though it must be attributed to counsel, is certainly not shown to have been deliberately made by the court, and it was, I think, erroneous. A decision is an authority for what it decides, but not for propositions which were neither debated nor decided, and of which all that can be said is that, if the question at issue had been more thoroughly explored, it would have been manifest that their affirmation was a condition precedent to the decision. I have had the advantage of reading the judgment which Tucker LJ is about to deliver, and, except that, for the reasons I have stated, I am disposed to attach less weight than he does, for the present purpose, to Brown v Sherwood Colliery Co Ltd, I am so completely in agreement with his judgment that I find it unnecessary to add any further words of my own.

In my opinion the appeal should be allowed with costs here and below, and the order of the judge set aside.

TUCKER LJ. The question raised by this appeal is whether the county court judge had jurisdiction to order the employers, who are the appellants in this court, to pay reasonable travelling expenses incurred by the workman respondent in attending before the medical referee, pursuant to an order made by the registrar under the Workmen’s Compensation Act, 1925, s 19(2), in a case where, at the date of the order, no arbitration had taken place or was pending in respect of the workman’s claim to compensation.

The judge’s jurisdiction with regard to costs and the power to make rules of court with regard thereto must be sought in the Workmen’s Compensation Act, 1925, and are to be found in general terms in para 7 of the First Schedule to the Act. So far as material the words of this paragraph are:

‘(1) The costs of and incidental to the arbitration and proceedings connected therewith shall be in the discretion of the … judge of the county court subject … to rules of court. (2) The costs … shall not exceed the limit prescribed by rules of court and shall be taxed in manner prescribed by those

rules … ’

In addition there are to be found in the Act further express provisions with regard to the making of rules and regulations in connection with certain specified matters: see sects 16(2), 19(6), 23(7), 43(1)(f) and Sched 1, para 11, to mention only those which relate to various kinds of references to medical referees. It is to be observed that sect 19 confers no power to make any rule with regard to costs. The power in this case must, therefore, be found, if anywhere, in para 7 of Sched 1 and this raises the question whether the costs of a 􀂭 474􀀉 reference to a medical referee where there is no arbitration past or pending can be described as “costs of and incidental to the arbitration or proceedings connected therewith.”

Apart from authority, I should have felt some doubt about this, but I think the decision of this court in Brown v Sherwood Colliery Co Ltd shows that the members of the court took the view that these words ought to receive a wide interpretation and that they cover applications under sect 19 where there is no arbitration and that the costs of such applications are to be taxed as interlocutory. This does not, however, conclude the matter, because assuming the power to make rules with regard to costs in such cases, it is necessary for the workman to point to the specific rule or rules which he says confer the power on the judge or registrar to include in any order as to costs that he may make an order for the payment of these travelling expenses. In this case the matter came before the judge on two applications which were heard together. One was a reference to him by the registrar of an application made to the registrar under the Workmen’s Compensation Rules, 1926, r 76(4), and the other was an application made direct to the judge under r 57(9). It is clear that the order cannot be justified under both rules, since r 76(4) in terms applies only to proceedings for which no provision is made in the rules or scales of costs. It is accordingly sought to uphold the order under one or other of these rules. The judge’s note indicates that he held he had power under either r 57(9) or 76(4), but he does not state under which he acted.

Dealing first with r 57(9), the relevant words are:

‘The costs of any application to the registrar, including the fee mentioned in paragraph (3), … may be allowed by special order of the judge on application in that behalf, such application to be made or not less than four days’ notice in writing and in accordance with the provisions of Order XII r. 11, so far as applicable.’

The application referred to is an application to the registrar for reference to a medical referee under sect 19, and the fee mentioned in para (3) is the medical referee’s fee authorised by para 9 of Sched 1 of the Act.

It seems to me that the costs of the application to the registrar cannot include travelling expenses incurred in carrying out the order in the absence of some such words as “incidental to” or “occasioned by” the order made on the application. I am confirmed in this view by the fact that when the draftsman comes to r 76(6) and (7) he shows that when he wishes to make provision for such travelling expenses in the circumstances there referred to, he uses clear language to express his intention. Furthermore, there would be no need for r 76(6) if the expenses in question could be included in the costs which may be allowed under r 57(9) in a subsequent arbitration.

I am, therefore, of opinion that the judge’s order cannot be justified under r 57(9).

Before passing to r 76(4), I would observe that r 57 appears to me to be framed as a code for the procedure and costs of proceedings under sect 19. Rule 76(4) is as follows:

‘Where proceedings are taken for which no provision is made by these rules or by the scales of costs, reasonable costs may be allowed in respect of such proceedings by the registrar, subject to review by the judge, or by special order of the judge, not exceeding those which may under the scales be allowed in respect of proceedings of a like nature.’

What were “the proceedings” in this case? I think the proceedings began with the application to the registrar and were continued by the medical referee’s examination of the workman and concluded when the medical referee forwarded his certificate to the registrar in accordance with reg 13 of the regulations made by the Secretary of State with regard to references to medical referees. In my view the examination by the referee cannot be considered as a separate “proceeding” which was “taken” within the meaning of r 76(4). It was part and parcel of a proceeding which was “taken” when application was made to the registrar and for the costs of which express provision is made in r 57(9), but in language which is inapt to include the expenses of the workman in travelling to the medical referee, an item which was clearly envisaged both by the draftsman of the rules and the Secretary of State when he made the regulations: vide reg26.

For these reasons I am of opinion that the judge’s order was not authorised by r 76(4), or by r 57(9), and was accordingly made without jurisdiction, and that this appeal should be allowed.

Appeal allowed with costs.

Solicitors: Johnson, Weatherall & Sturt agents for Parker, Rhodes, Cockburn & Co Rotherham (for the appellants); Taylor, Jelf & Co agents for Hopkin & Son, Mansfield, Notts (for the respondent).

C StJ Nicholson Esq Barrister.

[1946] 1 All ER 476