appeal must be dismissed. I desire to observe that the question raised and Nov. 13, 1911. decided by the Sheriff was not whether the condition was reasonable Morgan v. (which, I think, was the right question), but whether there existed a right William Dixon, in law, in the absence of special circumstances, as was contended by the Limited. workman before the arbitrator. LORD ATKINSON.-I concur. I think the parties came here to establish an absolute legal right in every workman to require that the medical examination by his employer's medical man should take place in the presence of his own medical man. I concur with my noble and learned friend on the woolsack that the law gives him no such abstract right, and that, therefore, that being the point raised, the appeal should be dismissed. In my view the question whether there is a refusal or not under the Act to submit to examination is a question of fact, and any reasonable requirement that may be put forward by the workman, such as, for instance, having his own medical man present, ought not and would not by any reasonable arbitrator be held to amount to a refusal to submit to examination. I further think that it cannot be held that the request to have the workman's medical man present upon all occasions can be considered as prima facie reasonable. On the contrary I think, having regard to the wording of the statute, the burden of proving that the request is reasonable is thrown not upon the employer, but upon the workman who makes it. concur with my noble and learned friend in thinking that in many cases,— indeed it would appear to me in most cases,—in the absence of any inconvenience or difficulty in getting the attendance of the person required, it is a most reasonable thing that the medical attendant of the workman should be present at the examination. I concur therefore that, your Lordships having no jurisdiction to decide issues of fact, and the appeal having been brought forward to establish this abstract legal right, it should be dismissed. I LORD GORELL.-I concur in the result of the judgments which have been pronounced. I think that the question that was really contested in this case is made plain by reading one paragraph from the stated case, and that is this: "Parties were heard upon this minute, and it was conceded in argument by the appellant that there were no special circumstances in his case which called for the presence of his medical attendant at the examination, his contention" (and this is the real point of the matter) "being that it is the right of the workman in every case, without alleging any special reason, to have his medical attendant present at the examination, and to refuse to submit himself for examination unless and until his employers consented thereto." I think that that paragraph states what was the real contest between the parties, which is expressed in a somewhat different way when you come to the statement of what is the question, at the end of the case, the question being stated as a question of law for the opinion of the Court. I think that what was really raised by that statement and contention was the right of the workman, independently entirely of the question whether it was reasonable or unreasonable (which it may have been), to have his medical Morgan v. Dixon, Lord Gorell. Nov. 13, 1911. man present at every examination in every case as it is here stated. That is a proposition which cannot, in my opinion, be maintained as matter of law, and I concur with what has fallen from the noble and learned Lords who have preceded me. It leaves out of consideration altogether what in these cases is practically a question of fact, whether it is reasonable or not for the workman to have his medical attendant present at the examination made on behalf of the employer. This contention is stated as amounting to a right wholly independent of whether there is any reason or not for another doctor being present-that is to say, that the workman shall have the right to have his own doctor present. I agree with what has fallen from my noble and learned friend Lord Atkinson. I think the burden is on the workman to show that there is some reason for the attendance of a further medical man, because, as I ventured to suggest in the course of the argument, prima facie under the statute the employer has the right to have the examination in order to see what his position is; the workman on the other hand, has to submit to it, and if he raises any objection by reason of his desire to have another medical man present, he raises a condition on his part, and I think it is for him to give the reason for raising such a condition. For these reasons I concur in the view that this appeal should be dismissed. It LORD SHAW OF DUNFERMLINE.-Differing as I do so radically from your Lordships, I should naturally have desired time for further consideration as to the form of my judgment. But in the circumstances, my mind is so clear as to my own course that I cannot but hold it to be my duty to dissent, although I do so with diffidence. I am glad to be supported in the view which I entertain by the unanimous decision of the Court of Appeal, consisting of the Master of the Rolls and Farwell and Kennedy, L.JJ., in the case of Devitt.1 Your Lordships have not referred to that decision, but in the Court below 2 the learned Lord Justice-Clerk referred to it thus: "There may have been many circumstances in that case as to which no inquiry or investigation was made, but which might have made the suggestion of the workman a perfectly reasonable and proper suggestion. might have been most dangerous to the man himself to proceed without the practitioner being present who knew him and knew the state of his health and constitution, and who, if anything was being done in the course of the examination, could suggest that something ought to be done or something ought not to be done, as the case might be. That is not the kind of case we have here." We were assured by the learned Lord Advocate, who had perused the papers in the case, and it was not denied, that this was a misapprehension on the part of the learned Judge, that there were no such special circumstances in Devitt's case,1 and that the case there presented stood entirely as the present case stands. And there can be little doubt accordingly that the helpfulness and value of the case of Devitt1 was to some extent mitigated by his misapprehension. In my opinion the case of 1 Devitt v. Owners of Steamship "Bainbridge," [1909] 2 K. B. 802. 2 1911 S. C. 403, at p. 405. Devitt was rightly decided, and I desire to express my concurrence with Nov. 13, 1911. the judgment of the learned Master of the Rolls. Morgan v. Limited. Lord Shaw of Dunfermline. I have not heard from any one of your Lordships anything in the nature William of an abstract consideration which would make the proponing of this Dixon, condition unreasonable on the part of the workman. When section 4 of Schedule I. of the Act of 1906 was enacted it provided that "Where a workman has given notice of an accident, he shall, if so required by the employer, submit himself for examination by a duly qualified medical practitioner provided and paid by the employer, and, if he refuses to submit himself to such examination, or in any way obstructs the same, his right to compensation... shall be suspended." What has happened in this case is that the workman, being so requested by the employer to submit to an examination, has consented to that examination subject to his own medical man being present. Anything more unreasonable to my mind than the proposition that that is an out-and-out refusal does not occur to me at present, nor does it occur to me how that can be characterised as an obstruction. I do not find it in any way inconsistent with the statute that unless a refusal or obstruction shall be established the workman's reasonable rights should be respected equally with those of the employer. In this case it is said that the adjecting of this condition amounted to a refusal unless the workman was able to allege a reason in advance for having his desire gratified that his own doctor should be with him while his master's doctor was examining him. In the course of the argument I put the ordinary case: How can an injured workman allege such a reason in advance? He may have sustained injuries—in many cases he does sustain injuries—which produce not only direct but indirect effects, the latter especially being obscure. : It is of the utmost advantage to both parties that medical men representing adverse sides in what might turn out to be a contention should at the same place, at the same time, and under the same circumstances be parties to the one examination. It is, however, now, I presume, declared by law that, unless it is so found in advance as matter of fact that that is a reasonable thing, this House is to be debarred from saying that in point of law that is the workman's right. I put the proposition in point of law thus that the right of the employer on the one hand to compel the submission of a workman to a medical examination has its correlative in the right of the workman to be protected and to have his interests seen to while that examination is conducted. I agree with my noble and learned friend on the woolsack that there is a right on the one side and an obligation on the other, et e converso, and I further agree that it is the duty of both parties to have these rights and obligations reasonably respected and performed. But under those circumstances what has been asked by the workman here? He has been asked to submit to an examination, and on the contrary side he says, "I shall do so, but observe, please, my right, which is that my doctor shall be there." I submit the view to your Lordships, which, I regret, has not been accepted, that in so proponing the workman's right the workman has done that which put the legal situation thus that it was for the employer, denying the right upon the side of the 1 2 K. B. 802. Morgan v. William Dixon, Limited. Lord Shaw of Nov. 13, 1911. workman, to establish that his denial was a reasonable one. As I construe the case, and speaking for myself, it is not the fact that an abstract right of an absolute and universal character is sought to be established. What is sought to be established here is laid down in the proposition by the learned Sheriff. It is to this effect: "Whether, apart from special cirDunfermline. cumstances in a particular case, a workman is entitled to have his own doctor present." I have no hesitation, for my part, in saying that that proposition ought to be answered in the affirmative. I think it is the right of a workman, who has to submit his person for examination, to have his doctor present, apart from any special circumstances in a particular case which would negate and nullify such a right. In those circumstances I should have no hesitation in deciding the case in a contrary sense to that which has been proposed from the woolsack. Now, what are the facts of this case? There are none; there are no special facts found by the learned Sheriff at all. He has decided solely in the abstract that, special circumstances being absent, this right does not exist, or rather he has decided that apart from special circumstances the workman has no such right. As I say, there is no fact here to specialise this case at all and make the workman stand deprived of the right correlative to the examination to which I have referred. I bear in mind further, that in the ordinary case, which is the case we are dealing with here-a case admitted to be apart from specialty-no conceivable harm can be done either to the workman or to the medical adviser of the employer by having a second doctor on the spot. There is to be no charge to the employer, for it is to be done at the workman's own cost; and for my own part my recollection bears me out in saying that my experience of that great profession would be that ninety-five per cent of doctors would prefer another doctor being present so far as their own satisfaction and the ease of the situation and the settlement of the truth were concerned. But in the pre man. sent case there is a special use attached to the presence of another medical Section 4 of the Schedule is not a section applicable to proceedings in foro. It is a section applicable to this situation where only notice of accident has been given, and where it must be the desire of both parties that an amicable and reasonable arrangement be come to. How desirable it is in those circumstances that this situation should be eased in the particular matter, that both doctors should agree as to what is wrong and what would be a suitable remedy. All the demand the workman has made here is that that agreement should be facilitated by the presence of his medical man. I cannot think that in its nature to be unreasonable. There are no facts proved or proceeded upon in this case to make it unreasonable or to suggest that it was unreasonable, and unless it is found in fact to be unreasonable owing to special circumstances, I do not think this House should be debarred from holding that the workman had that right. As I have observed, I do not think the decision come to in the Courts below was a decision in fact. I do not think the Sheriff had addressed himself to it as a question of fact. He has treated the question as one of absolute right (conditioned in the sense I have explained), a right which he concludes not from fact, but from a construction of the Act of Parlia ment. In my view that is a matter of law. My whole view may be Nov. 13, 1911. summed up in this proposition, that in the general case, in my humble Morgan v. opinion, it cannot be reckoned as a refusal if a workman makes the presence William Dixon, of his own medical man a condition of his willingness to submit to examina- Limited. tion by the medical adviser of his employer. I cannot agree that the fact of the adjection of such a condition is ipso jure a refusal or obstruction. I Dunfermline. hold it is nothing else than a reasonable thing, not displaced from its reasonableness by any fact proved. Accordingly, I respectfully dissent from the judgment proposed. LORD CHANCELLOR.-According to my own opinion it is a question of fact whether or not the presence or absence of the workman's doctor is reasonable in the particular case, and your Lordships are not judges of fact. That is all I intended to convey. ORDERED that the appeal be dismissed with costs. DEACON & CO.-SIMPSON & MARWICK, W.S.-BEveridge, Greig, & Co.— Lord Shaw of GEORGE ROSIE, Respondent.-Atkin, K.C.-Constable, K.C.— J. G. Jameson. No. 2. Poor ALEXANDER MACKAY, (Claimant) Appellant.-Anderson, K.C.— Nov. 13, 1911. Workmen's Compensation Act, 1906 (6 Edw. VII. cap. 58), sec. 16- Mackay. The Workmen's Compensation Act, 1906 (which provides for an An appeal having been taken from the judgment of the Court of Session to the House of Lords, held that the judgment of the Court of Session was not a "proceeding consequential" on the medical reference and accordingly that the provisions of the Act of 1897, and not those of the Act of 1906, applied, and excluded the appeal. (IN the Court of Session, June 14, 1910-1910 S. C. 714.) Ld. Chancellor Ld. Atkinson. The claimant, Alexander Mackay, appealed in forma pauperis to (Loreburn). the House of Lords. An objection to the competency of the appeal Lord Gorell. was taken by the respondent, George Rosie, and the question was Lord Shaw of reserved by the Appeal Committee for argument before the House of Dunfermline. Lords. The question was argued before the House on 13th November 1911. Argued for the respondent;-The appeal was incompetent. The accident happened before the commencement of the Act of 1906, and accordingly the arbitration fell to be regulated by the Act of |