Scottish Court of Session Decisions

This was a stated case on an appeal by John Anderson, engineman, Kilsyth, the claimant in an arbitration under the Workmen's Compensation Act 1897, brought by him against William Baird & Co., Ltd., iron and coal masters, Glasgow, in the Sheriff Court at Glasgow, for compensation at the rate of 15s. 10 1 2d. per week from and after 20th September 1901 until the claimant was again able to earn his full wages or until the further orders of the Court.

The Sheriff-Substitute ( Guthrie) stated as follows:—“Proof was led before me and parties heard on July 1 and 3, 1902, when I found that the following facts had been established:—

1. That the appellant was on 18th April 1901 employed in the respondents' works in Kilsyth, and that it was admitted by them that he was entitled to compensation under the Workmen's Compensation Act for an injury to the thumb of his right hand received on that day.

2. That the respondents paid compensation in respect of said injury and appellant's consequent incapacity for his ordinary work until 5th December 1901, at the rate of 15s. 10 1 2d. per week.

3. That after the occurrence of the accident by which the injury was caused the appellant's thumb was amputated at the metacarpal joint.

4. That as the appellant continued to suffer pain, preventing him from using his right hand in his usual work as a washer at a coal-pit, which requires him to shovel coal and pull levers at a washing machine, a further operation on the thumb joint took place at the Royal Infirmary, Glasgow, in June 1901.

5. That the appellant still continued to suffer pain, and to be incapacitated for work in consequence of the adhesion of the skin to the stump.

6. That this was due either to the defective performance of the operation in June, or to some neglect in attending to the hand thereafter.

7. That the appellant was examined on 28th September 1901, and advised that he should undergo another operation, which would in all probability remove the sensitiveness of the injured part, and enable him to earn wages as before, or at least to earn more than he is able to do now.

8. That the operation so advised is a simple operation not attended with serious risk or pain, and is such as a reasonable man not claiming compensation or damages would for his own advantage and comfort elect to undergo.

9. That since April 1902 the appellant had been in receipt of 14s. a week in the employment of the Pearl Insurance Company.

I therefore continued the case till 15th October 1902, that the appellant, if so advised, might submit himself to the operation, and that it might be ascertained whether he had been enabled to earn wages as before.

Having heard parties at the said continued diet, I found that the appellant had refused to undergo the minor operation before referred to.

I therefore found in law that the appellant was thereby precluded from insisting further in the application before narrated, and assoilzied the respondents. I found the appellant liable to them in expenses from 7th July last (the date of the foregoing findings).

The question of law for the opinion of the Court is—Whether the appellant by his refusal to undergo the minor operation referred to is precluded from insisting further in his application for further payment of compensation under the Workmen's Compensation Act 1897?”

Argued for the appellant—(1) There was no warrant in the Act for making a workman submit to a surgical operation as a condition of his being entitled to the benefits of the Act. The duty of the arbitrator was in the first place to find out if the workman had been injured in the course of his employment and if the injury was not attributable to his serious or wilful misconduct. If these two propositions were held by the arbitrator to be made out in favour of the workman, then the duty of the arbitrator was to award compensation to the workman and not to force the workman to undergo surgical experiments on his limbs. This could without exaggeration be called a surgical experiment, as the appellant had undergone two operations already without effect. The arbitrator did not find in fact that if the appellant submitted to the operation he would be cured. (2) In any event the proper course was not to assoilzie the respondents, but to keep the matter open by awarding a nominal sum as weekly compensation.

No reply on the first branch of the appellant's argument having been called for, the Lord Justice-Clerk after consultation with the othes Judges asked counsel for the respondents if he objected to an award of nominal compensation for the present.

Campbell, K.C., for the respondents, replied that he had no objection to such an award.