Scottish Court of Session Decisions

In an arbitration under the Workmen's Compensation Act 1906 (6 Edw. VII, cap. 58) James Anderson, brusher, Larkhall, claimed compensation from his employers, the Darngavil Coal Company, Limited, Birkrigg Colliery, Dalserf, at the rate of twenty shillings per week from 9th April 1909. The Sheriff-Substitute ( Thomson) at Hamilton, acting as arbitrator, ended the compensation as from 13th August 1909, and at the request of the claimant stated a case for appeal.

The Case stated—“The case was before me on 22nd July 1909, when the following facts were admitted or proved, viz.—(1) that the appellant was at the date of his injury a brusher with respondents, brushing being one of the heaviest forms of mining labour; (2) that the appellant injured his right knee by a displacement of the semilunar cartilage of the knee joint in an accident arising out of and in the course of his employment with respondents on 16th October 1908; (3) that his average earnings were then £2, 1s. 6d. weekly, and he was paid compensation from the date of the accident at the rate of £1 per week till it was reduced by agreement, the final rate being 5s. 9d. per week, which was paid until 9th April 1909, when it was stopped on the ground, as alleged by respondents, that he had then recovered entirely; (4) that from the date of the accident until after the medical referee's report he had kept his knee bandaged; (5) that he was on 13th May 1909 examined by a medical referee in terms of section 15 of Schedule I of the Workmen's Compensation Act 1906, who reported on 14th May 1909 in the following terms:—‘As requested, I yesterday examined James Anderson, brusher, who had his knee injured while at work last October. All that is now discoverable is a certain thinning of the muscular tissue in the immediate neighbourhood of the joint that was injured. This wasting is due to the prolonged use of an elastic bandage, which should now be discarded. Whatever the original injury was its effects have passed off. In shape and freedom of movement the knee is quite normal with the exception above noted and explained. My opinion of the case is ( a), as stated above, to keep the knee unbandaged; ( b) to allow him for a month to continue at his present light labour; and ( c) then to resume his original work. (Sgd.) D. Macartney, M.D., medical referee.’ (6) That notwithstanding this report the appellant continued at his light work and still works thereat, earning on an average 12s. 6d. per week; (7) that following on the medical referee's report the appellant removed the bandage from his knee on or about 20th May 1909; (8) that the only change in circumstances since the examination by the medical referee is this, that while at said light work, on or about 4th June, the knee cartilage again became loose and required to be bandaged by a doctor, and that he was off work in consequence for a day and then resumed his light work at the picking tables; (9) that this is a condition of the knee that is likely to recur if he does not wear an elastic bandage or a knee cap; (10) that the appellant has continued to wear the said bandage since the 4th day of June 1909; (11) that the appellant if he wears a knee cap will be able and ought to resume his original work as a brusher. In these circumstances I ended as from 13th August 1909 the compensation payable to appellant at the rate of 5s. 9d. per week, and decerned and ordained respondents to pay appellant compensation at the rate of 5s. 9d. per week from 9th April 1909 till said 13th August 1909, together with one day's wage in addition, and found neither party entitled to expenses.”

The question of law was—“In the circumstances above stated was the Sheriff entitled to end the compensation payable to the appellant.”

Argued for appellant — The arbitrator had drawn an unreasonable inference in fact. He had no evidence before him on which he was entitled to end the appellant's compensation. Finding (11) was the statement of an opinion, and not a finding in fact.

Counsel for respondents were not called on.

At advising—