Richardson v. Redpath Brown and Co. Ltd.

[1944] 1 All ER 110
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The employer of an injured steel erector sued its employee, seeking an injunction that would require the employee to undergo radical surgery to obtain relief from a hernia. The hernia, which arose out of and in the course of the employee’s designated work, rendered the employee incapable of performing key work functions. As per the employment agreement, the employee was receiving weekly payments from his employer on grounds of incapacity.

The employer, who had previously sought review of the employee’s case after an initial failed operation, received notice that the employee had declined to submit to a further surgical operation. Again, review of the employee’s case was sought, and the matter was adjudicated in the Westminster County Court.

At trial, the employer presented evidence from three medical experts, who testified that further surgery was advisable and would not harm the employee. The court’s medical assessor examined the employee, and concurred with this opinion. On the employee’s behalf, evidence was introduced that his own doctor had advised against the operation, and two medical experts testified that due a present nervous condition, further surgical operations could present a danger to the employee’s health.

The trial court judge, citing primarily the opinion of his medical assessor which was not introduced into the court as evidence , ruled in favor of the employers, and ordered the employee to undergo surgery. The Court of Appeal affirmed, and the case was appealed to the House of Lords.

The House of Lords reversed, and dismissed the employer’s application for review of the employee’s case, with costs.

The House of Lords held that the employee was entitled to rely primarily upon the opinion given by his own doctor. While evidence presented at trial showed that alternate opinions could be reasonably reached by medical professionals, and that those professionals in fact argued against the logic which may have governed the primary doctor’s opinion, no evidence attempted to prove directly that the employee should not have relied upon his own doctor’s advice. Given the apparent conflict in opinions, there was no reason to assume any doctor’s advice was more important nor more reliable than that of the employee’s primary physician.

The House of Lords held further that the trial court improperly relied upon its medical assessor’s opinion. In the county trial, following evidence presented by each side, the judge requested a sua sponte examination of the patient by the appointed medical assessor. The opinions of that assessor were delivered directly to the judge, who ruled based primarily on that information. However, the assessor never presented his testimony to the court, nor was any opportunity for cross-examination granted. The role of the medical assessor, according to the House of Lords, was to aid the judge in analyzing technical medical evidence, but not to make direct examinations and offer privileged information for use in judgment.

“[T]o treat a medical assessor, or indeed any assessor, as though he were an unsworn witness in the special confidence of the arbitrator whose testimony cannot be challenged by cross-examination and perhaps cannot be even fully appreciated by the parties until judgment is given, is to misunderstand what the true functions of an assessor are. He is an expert available for the arbitrator to consult if the arbitrator requires assistance in understanding the effect and meaning of technical evidence… The arbitrator may consult him in case of need as to the proper technical inferences to be drawn from proved facts, or to the extent of the difference between apparently contradictory conclusions in the expert field.” Page 113

“[T]he question whether a workman is unreasonable in refusing to undergo a surgical operation is not to be determined by considering whether the best medical opinion would think such an operation advisable or safe, but by judging whether it is proved that the workman, having regard to all the circumstances (including medical advice offered to him against the operation) was unreasonable in so refusing. I venture to quote a sentence of my own in Steele's case, at p 500 ([1942] 1 All ER at p 449):

‘It may in some cases be quite reasonable for a man to decide not to undergo an operation if his own doctors advise him against it, for it is the conclusion reached by his doctor which governs his decision much more than the logic by which his doctor has reached the conclusion.’” Page 114

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