an industrial accident and became entitled to dis
ablement benefit under the National Insurance
(Industrial Injuries) Act, 1946. Under reg. 2 (5)
of
the National Insurance
(Industrial Injuries)
(Benefit) Regulations, 1948, his disablement was
to be assessed as if the injury to his right eye was
incurred as a result of losing the sight of his left
eye;
and, under Sch.
i
to the regulations, the
disablement for blindness in one remaining eye
was to be assessed in such circumstances at a
hundred per cent.
A medical appeal tribunal,
failing to apply reg. 2 (5), assessed the applicant's
disablement at twenty per cent.
The facts on
which the tribunal based their decision did not
appear on the face of their written adjudication,
but the adjudication contained an extract from
the report of a specialist who had examined the
applicant and had set out in his report the full
facts in regard to the previous injury and to the
injury in 1955.
Section 36 (3) of the Act of 1946
provides that any decision of a medical appeal
tribunal of a question arising under the Act " shall
be final."
On an application by the applicant
for an order of certiorari to remove the decision
of the medical appeal tribunal into the High Court
to be quashed, it was conceded that the decision
was erroneous in point of law.
HELD :
the order of certiorari would be granted
as
the court had jurisdiction for the following
reasons—
(i) the tribunal, by giving an extract from the
specialist's report, had made the report a
part of the record, and, as the tribunal came
to a conclusion which could not reasonably
have been entertained by them if they had
had proper regard to reg. 2 (5) of the Regu
lations of 1948, they had fallen into error in
point of law, which was thus apparent on
the face of the record.
(ii) the provision in s. 36 (3) of the Act of 1946
that the tribunal's decision should be " final "
merely meant that the decision should be
final on the facts and should not be the
subject of appeal, and the sub-section did
uot exclude jurisdiction by certiorari.
Per Denning, L.J. :—On looking again into the
old books I find it very well settled that the remedy
by certiorari is never to be taken away by any
statute except by the most clear and explicit words.
The word " final " is not enough. That only means
" without appeal."
It does not mean " without
recourse to certiorari."
It makes the decision
final on the facts, but not final on the law. Not
withstanding that the decision is by » statute made
" final," certiorari can still issue for excess of
jurisdiction or for error of law on the face of the
record.
I venture, therefore, to use in this case the words
which I used recently, in Taylor
v.
National Assist
ance Board (1957) i. All E.R. 183) with suitable
variations to certiorari:
" The remedy is not excluded by the fact
that the determination of the board is by statute
made ' final.'
Parliament gives the impress of
finality to the decisions of the board only on the
condition that they are reached in accordance
with the law. .
."
In my opinion, therefore, notwithstanding the
fact that the statute says that the decision of the
medical appeal tribunal is to be final, it is open to
this court to issue a certiorari to quash it for error
of law on the face of the record.
I am glad to
notice that modern statutes never take away in
express words
the right
to certiorari without
substituting an analogous remedy. This is probably
because the courts no longer use it to quash for
technical defects, but only use it in case of a sub
stantial miscarriage of justice. Parliament nowadays
more often uses the word " final," or " final and
conclusive" or some such words, which leave
intact the control of the courts by certiorari.
Romer, L.J. :
I agree. In my judgment, it would
be deplorable if we were constrained to hold that
the decision of a medical appeal tribunal however
wrong in law, and however obviously wrong,
was immune from review by Her Majesty's courts.
I cast no reflection whatever on tribunals such as
that in the present case, and they do their work
conscientiously and with efficiency.
In the nature
of things, however,
these and similar
inferior
tribunals (and there are many of them nowadays)
are bound to go wrong from time to time in matters
of law.
Their members consist, in the main, of
people who have devoted their lives to activities
far removed from the study and practice of the
law; and neither by training nor by experience
can they be expected to have that knowledge of
principles of construction which is so necessary
for the proper understanding and application of
the various statutes and regulations which often
come before them.
Injustice may well result, and
a sense of injustice is a grievous thing. I, therefore,
think (and I have said as much before) that it is
not in the public interest that inferior tribunals
of any kind should be ultimate arbiters on questions
of law. Parliament, of course, can make them so .
93