Scottish Court of Session Decisions

This was a stated case in an appeal by Robert Sweeney, miner, Bathgate, the claimant in an arbitration under the Workmen's Compensation Act 1897, brought by him against the Pumpherston Oil Company, Limited, Bathgate, in the Sheriff Court of the Lothians at Linlithgow, for compensation at the rate of 16s. 9d. per week from and after 10th June 1902, until the claimant was able to earn his full wages or until the further orders of the Court.

The Sheriff-Substitute ( M'Leod) stated as follows:—“The appellant was entitled to compensation under the Workmen's Compensation Act from the respondents for an injury to the elbow of his right arm, received by him on 3rd June 1901 while in their employment. The injury thus received by the appellant still unfits him from following his ordinary occupation as a miner, and there is no reasonable prospect that his right arm will become a useful limb unless he submits himself to the operation after mentioned. The appellant, who is a very healthy subject, was examined on 15th March 1902 by a medical practitioner on behalf of the respondents, and was also examined on 18th July 1902 by another medical practitioner on behalf of the respondents, and was on both occasions advised that he ought to undergo the operation after mentioned; but even though the compensation pay of 16s. 9d. a-week, which the respondents had paid him up to 10th June 1902, was stopped as at that date, the appellant has hitherto refused to submit himself to the said operation. The injury received by the appellant was a fracture of the head of the radius, one-half of which became separated, and is now partially united in a faulty position, and the result of the injury is interference with and consequent pain upon the movements of the elbow joint. The operation advised is that of opening into the elbow joint in order that the loose piece of bone may be removed. This operation (1) is an important minor operation; (2) is not in the nature of an experiment, but is established in surgical practice; (3) has been attended by complete success in all the similar cases (five in number) regarding which evidence was led before me; (4) is not attended by any appreciable risk, the risk of septic mischief (that being practically the only danger which might arise) being indeed less than in the case of the operation which was advised in the case of Anderson v. Baird & Company, January 15, 1903 (for in this case I had the advantage of the evidence of the eminent surgeon who advised both in the case just cited and in this case); (5) will in all probability within two months, or a little longer, restore to the appellant the use of his right arm, and enable him to earn wages as before; and (6) is such as a reasonable man not claiming compensation or damages would, for his own advantage and comfort, elect to undergo.

“Being of opinion that the case of Anderson v. Baird, January 1903, applied to the foregoing facts, I advised the appellant to reconsider his position, and of date 6th February 1903 continued the case till 1st May next, in order that he might, if so advised, submit himself to the operation, and that it might be ascertained whether he had then been enabled to earn wages as before.

However on 20th February 1903 the appellant intimated that he had decided not to undergo the operation, and craved me to proceed as if the 1st of May had arrived, and to dispose of his application aforesaid.

Accordingly on 20th February 1903 I found in law (following the above recited case of Anderson v. Baird & Company) that the appellant was, in respect of his refusal to undergo the above-mentioned operation, precluded from meantime insisting further in the application above narrated, but in order to keep the matter open

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for future developments I awarded him the sum of one penny weekly until the further order of the Court.”

The question of law for the opinion of the Court was—“Whether the applicant, by his refusal to undergo the operation referred to, is meantime precluded from insisting further in his application?”

It was stated by counsel for the appellant that Professor Annandale, who treated the appellant in the Edinburgh Royal Infirmary after his accident, had declined to operate, upon the ground that the success of an operation was not certain, and that Professor Annandale having subsequently examined the appellant on 25th February 1903, had written, of date 2nd March 1903, a letter to the appellant's agent in these terms:—“I have again carefully examined Robert Sweeney's arm and I find that the movements of his elbow joint have much improved. I have strongly advised him to have no operation performed, therefore adhering to my former opinion.” Counsel for the respondents admitted the authenticity of this letter.

Argued for the appellant—The Sheriff-Substitute had proceeded solely on the authority of Anderson v. William Baird & Company, Limited, January 15, 1903, 40 S.L.R. 263. In that case the interlocutor was pronounced of consent, and the judicial opinions for and against the view that the workman was bound to submit to the surgical operation there in question were equally balanced. The question was whether in the circumstances the surgical operation was such as any reasonable man would adopt—per Lord Adam in Dowds v. Bennie & Son, December 19, 1902, 40 S.L.R. 239. In Dowds the medical treatment proposed was of a very simple and common kind, and in Anderson the operation was described as a “simple operation not attended with serious risk or pain.” In the present case, however, the surgical operation was described as an “important minor operation,” and in face of the strong advice of Professor Annandale to the appellant to have no operation performed, it was certainly not unreasonable in him to decline to submit to the proposed operation. There were five findings in fact by the Sheriff, in respect of which the Sheriff had come to a sixth finding viz., that the operation was such as a reasonable man would elect to undergo; but this sixth finding was really a finding in law to the effect that the appellant was bound in law to submit to the operation, and would forfeit his right to compensation by refusing so to do. Such a finding in law was unwarranted by the statute.

Argued for the respondents—On the facts stated in the case the operation proposed was such as a reasonable man would elect to undergo. The Sheriff-Substitute in his sixth finding had expressly found this as a fact, and it was not competent to consider evidence of facts outside the stated case— Rae v. Fraser, June 28, 1899, 1 F. 1017, 36 S.L.R. 782. The statements made at the bar as to Professor Annandale's opinion were, accordingly, irrelevant. The case was a fortiori of Anderson v. William Baird & Company ( supra), in respect that in the latter case the workman had already submitted to two operations without success, and there it undoubtedly had been held that the refusal of a workman to submit to a remedy that would remove his incapacity for wage-earning involved forfeiture of his right to compensation. It was open to the appellant to submit himself to a medical practitioner appointed for the put poses of the Act— M'Avan v. Boase Spinning Company, July 11, 1901, 3 F. 1048, 38 S.L.R. 772; Ferrier v. Gourlay Brothers, March 18, 1902, 4 F. 711, 39 S.L.R. 453.