Scottish Court of Session Decisions

The learned arbitrator heard the case with the assistance of a medical referee as assessor, and among other facts it was proved that the appellant, while acting as a brakesman in the respondents' employment, met with an accident on 21st December 1912, as a result of which the appellant sustained a permanent injury, in respect his left thumb was amputated at the metacarpophalangeal joint. Further, that he is now fit to undertake, and was on 28th October 1913, when examined by Dr Knox (a medical practitioner selected by the respondents), fit to resume his former occupation.

Then the fourth finding, which I quote in full, is “That the loss of the left thumb at the metacarpophalangeal joint does not impair his chance of employment in his former line of employment, or in any other line of employment which he might reasonably hope to follow.”

On these facts the learned arbitrator ended the compensation as at 28th October 1913; and the question of law put to us is whether upon the evidence he could competently so end the compensation.

There is no question, looking to the recent decision of the House of Lords in the case of George Gibson & Company v. Wishart, (1914) 1 S.L.T. 416, as to the competency of the arbitrator ending the compensation at a date prior to the application for review, and no point was made upon that at our bar. The sole question argued was whether he was entitled to end the compensation as he has done, or whether he was not bound to pronounce a suspensory order, which is now, I apprehend, quite settled to be a competent method of procedure in cases under this Act.

It is obvious that the fourth finding presents a very serious difficulty in the way of the appellant's argument. I read it as a finding in fact on a question of fact depending on the evidence and on the circumstances of the case. It was said that it necessarily and clearly was rather a matter of conjecture; but I do not think that is so, although the finding must involve to some extent a conclusion upon the weight and character of the conflicting opinions of medical men. I think it was a finding of fact on the whole circumstances which were before the Sheriff, and doubtless received good consideration by him, as to the man's prospects of employment in the open market. The Sheriff has evidently satisfied himself upon the merits of this question.

But we are asked to say that he has in doing so acted ultra vires, because it is said that finding 4 is inconsistent with the first finding, which affirms the nature of the permanent injury sustained by the appellant. I do not agree with this. I do not think that the findings are contradictory, and I say so very much for the reasons which I expressed in analogous circumstances in the case of Hargreaves, 1912 S.C. (H.L.) 70, 49 S.L.R. 474.

Mr Robertson in his able argument urged us to accept the view that the only proper and competent award in a case of serious and patent permanent injury is a suspensory order. I think his statement is far too broad, and I decline to accept it as put. In one of the recent English cases— Green v. Cammell, Laird, & Company, Limited, [1913] 3 KB 665, 6 B.C.C. 735—Lord Justice Kennedy expressed the opinion “that in cases of a permanent physical injury … the arbitrator, if satisfied that the incapacity for work has for the time ceased, ought, as a general rule, not as a universal rule, inasmuch as in such a case an incapacity for work due to the injury may very possibly supervene at a later time, not to make an award simply terminating the weekly payments, but to make an order which keeps alive the employer's liability, either by directing the weekly payment of a nominal sum or by a suspensory order.” With that opinion so stated by the learned Lord Justice I have no fault to find; but I emphasise the fact that the rule is laid down by him as a general and not as a universal rule, and I do not think that it is applicable here. It seems to me that in the present case we have in finding 4, carefully prepared by the arbitrator, a finding in fact, and intended as such. I do not think there is a finding at all like it in any of the cases to which we have been referred. It has evidently been made by the arbitrator as a finding in fact embodying the result, in his opinion, of the evidence which he had before him. I cannot say that finding was incompetent or ultra vires; and I am for answering the question of law in the affirmative.

Lord Salvesen—I concur. It is, I think, always a question of fact whether a particular injury to a workman will affect his earning capacity either in his own sphere of employment or, as the arbitrator puts it, in any line of employment which he may reasonably hope to follow.

In the course of the argument I put the illustration of a man receiving an injury to his face which left a permanent scar. Undoubtedly if the man were a waiter or a butler a disfigurement of that kind might very seriously affect his chances of employment, and therefore his earning capacity, whereas a similar injury to a miner or an ordinary labourer would probably have no effect upon his following his ordinary occupation.

Here we are dealing with a man who was above the rank of an ordinary labourer. He was a brakesman—a class of employment that is usually entrusted only to a man who in addition to manual ability has also certain reliability in the discharge of somewhat responsible duties. Now the learned arbitrator has addressed his mind to the facts bearing upon the case, and it seems to me that he has correctly interpreted the decisions of the House of Lords as to the scope of the inquiry. He has not to consider whether the man's chances of employment would be affected if he were a workman of a totally different class from that which he followed. He has not to consider, say, in the case of a clerk whether a slight injury to the left hand might if he were thrown out of employment and had to turn to ordinary manual labour, affect his chances

Page: 623↓