danger. In such a case it would be generally admitted that there was not Feb. 1, 1908. only a legal but a moral right of election on the part of the injured person; Donnelly v. and if he preferred to remain in his disabled condition rather than incur the Baird & Co., risk of more serious disablement or death, it could not be said that his inaction disentitled him to further compensation. In view of the great diversity of cases raising this question, I can see no general principle except this, that if the operation is not attended with danger to life or health, or extraordinary suffering, and if according to the best medical or surgical opinion the operation offers a reasonable prospect of restoration or relief from the incapacity from which the workman is suffering, then he must either submit to the operation or release his employers from the obligation to maintain him. In other words, the statutory obligation of the employer to give maintenance during the period of incapacity resulting from an accident is subject to the implied condition that the workman shall avail himself of such reasonable remedial measures as are within his power. I think that this statement is in accordance with all the decisions that have been given in similar cases, but in whatever way the condition is defined each case must be considered as a circumstantial case depending on the nature of the proposed operation and its probable results. I do not think that in principle any distinction can be taken between medical treatment and surgical treatment as regards the duty of the patient to co-operate with his professional advisers towards his own restoration to health and working capacity. The distinction only begins when an operation is proposed which may be attended with danger, or the results of which are not in the region of reasonable and probable success. My difficulty in this case is that, Donnelly not being a skilled workman but a drawer of hutches in a coal pit, I can imagine that the man might honestly believe that no operation on his hand would suffice to remove the sensitiveness to pressure that at present makes him unfit for hard work. This, however, is a point which could not be overlooked by the doctors who have been consulted as to his case, and they have given their opinion that the crooked finger and the nodule in the palm of the hand should be removed, and that the operation is likely "to restore to him in large measure, or altogether, the use of his hand for the purpose of his former work," viz., drawing hutches. In such cases a prudent and reasonable man will be guided by medical opinion rather than by his own fears; and, without saying that the case is absolutely clear, my view is that by refusing to submit to the operation the party has disentitled himself to further payments. Any difficulty I have felt in considering the case is almost entirely removed by the consideration that nothing but good can come to this young man from the operation. Even if his hand should continue to be too tender to be useful to him in drawing hutches, it will according to medical opinion be greatly improved, and so the man will be in a more favourable position for doing work in some other occupation where the use of the left hand is not so necessary as in the work of a drawer. I am therefore for affirming the Sheriff-substitute's determination. LORD STORMONTH-DARLING.-I concur with my brother Lord Pearson. Limited. Lord M'Laren. Feb. 1, 1908. His view, and that as I understand of the rest of your Lordships, is that Donnelly v. the question of law which the Sheriff has formulated is not quite accurately Baird & Co., expressed, and that the proper result of his findings would not be to Limited. "forfeit" the appellant's right to receive further compensation. But even LdStormonth-taking the case as fairly raising the question which probably the Sheriff Darling. intended to raise, viz., whether the workman by his refusal to undergo the particular surgical operation recommended by the three doctors who examined him at the request of the employers has disentitled himself from claiming further payments by way of compensation, I agree with Lord Pearson that the Sheriff's ninth finding is really a finding in law, and therefore not a finding on which the Sheriff is final. As I read the cases, both in England and Scotland, which were cited I think it has never been decided, at all events in explicit terms, that a workman's refusal to undergo a surgical operation, even of a minor kind, can be visited with a practical denial of his right to further compensation. In Rothwell v. Davies1 the English Court of Appeal negatived such a result. In Dowds v. Bennie & Son,2 which was treated by the First Division as a case where the injury was comparatively slight and the treatment proposed simple and common (principally passive movements and massage), and therefore was treated as one where the present condition of the limb was truly due to the injured man's own fault and neglect, yet Lord Adam, in delivering the leading judgment, said that cases might easily be figured of "a more or less serious operation" being proposed where it would be out of the question to say that the workman was bound to submit to it. Even in Anderson's case refusal to undergo a "simple operation" as disentitling the workman to a continuance of substantial compensation was (diss. Lord Young) avoided by allowing the matter to be kept open by only awarding him a nominal sum. Lastly, in Sweeney refusal of the workman to undergo a surgical operation which had been recommended by the employers' doctors as disentitling him to further compensation was distinctly negatived in deference to a contrary opinion by a surgeon of eminence. Therefore I think I am well founded in saying that there is not a single case in either England or Scotland laying down in explicit terms the rule for which the employer here contends, even with regard to a minor surgical operation, however probable the success of it may be. But as Lord Pearson and I are in a minority, it is unnecessary to consider what the practical consequences would be of giving effect to our view. LORD PEARSON (whose opinion was, in his Lordship's absence, read by the Lord Justice-Clerk).—I agree in the view that the question of law which the Sheriff has formulated is not accurately expressed, and that the proper result of his findings is not to "forfeit" the appellant's right to receive further compensation. But I desire to add that on the question which I think the Sheriff intended to raise, and which was fully argued to us, my opinion is entirely in favour of the appellant. I am clearly of opinion that the Sheriff's first seven findings in fact do not warrant the eighth finding, which is that "the appellant's continued incapacity to use Feb. 1, 1908. his left hand, and any continued pain in his left palm, are fairly attribut- Donnelly v. able to the want of such operations." It appears to me that the principles Baird & Co., Limited. laid down in the cases of Dowds1 and of Sweeney 2 lead to the opposite conclusion, and that the Sheriff's ninth finding, that in these circumstances the Lord Pearson. appellant "is not entitled to refuse, and ought to undergo said operations" -which is really a finding in law-is not maintainable. I cannot hold the appellant to be unreasonable in his refusal to submit to the amputation of a finger. I admit, however, the difficulty of giving effect to this view, having regard to the terms of the eighth finding, which is a finding in fact, and is not before us for review, and which, when fairly construed, imports that the conduct of the appellant in refusing to submit to the operation is so unreasonable as to disentitle him to further compensation. LORD ARDWALL.-I am of opinion that the question of law submitted in this case should be answered in the affirmative, with the alteration suggested by your Lordship in the chair. The compensation at the rate of 7s. a week which has hitherto been received by the appellant under an agreement entered into in terms of the Workmen's Compensation Act, 1897, has been paid and received under the provisions contained in the First Schedule of the said Act, section 1 (b), which apply to cases where "total or partial incapacity for work results from the injury." It is stated by the Sheriff-substitute that certain simple and safe operations would remove the appellant's incapacity to work, and in the eighth finding it is stated that "the appellant's continued incapacity to use his left hand, and any continued pain in his left palm, are fairly attributable to the want of such operations." Accepting this as a fact, it appears that now the appellant's incapacity for work does not result from the injury which he received in 1903, but from his refusal to submit to the said operations, and this being so, compensation is no longer payable in respect of incapacity for work resulting from an injury, and the payment thereof ought to come to an end. But the appellant pleads that he is not bound to submit to the operations in question, and it was contended by his counsel that no person is bound to submit to an operation in such circumstances as the present against his will, however simple such operation may be, and that if a person in the position of the appellant chooses to take his stand on the ground that he objects to an operation on account of the pain or risk involved in it, he is the sole judge and ought not to be forced by the decision of a Court of law into the alternative of either submitting to an operation or forfeiting the compensation which otherwise he is by law entitled to. This raises a question of general importance, but one which has not now to be considered for the first time. Three cases involving this question have been already under consideration of the Court-Dowds v. Bennie & Son,1 Anderson v. Baird & Company, and Sweeney v. Pumpherston Oil Company. I think the result of these decisions is that no general rule can be laid down, but that each case must 2 3 5 F. 373. Feb. 1, 1908. be determined upon its own circumstances, the questions for consideration Donnelly v. in each case, generally speaking, being (1) Whether the operation is a simple Baird & Co., or a difficult one? (2) Whether it is attended with serious risk? (3) Limited. Whether if performed it will attain the end in view by diminishing or Lord Ardwall. putting an end to the injured person's incapacity for work? (4) Whether it is or is not an operation involving much pain, and if it does involve much pain whether there is serious risk to be encountered by the use of anesthetics during the operation? And (5) What is the opinion of medical men as to the advisability of the operation? Now, in the present case the Sheriff-substitute has found (1) the "proposed operations are simple or minor operations"; (2) that they are "not attended with appreciable risk"; (3) that they are "likely to restore to respondent in large measure, or altogether, use of his said hand for the purpose of his former work"; (4) that the proposed operations are "not attended with . . . serious pain," and that the respondent is of good constitution and in sound general health, from which I infer that there would be no danger to him from the use of anesthetics; (5) that the respondent has been examined by five doctors, and that three of these doctors recommend that the operations should be performed. Nothing is said with regard to the other two doctors who examined the respondent at his own instance, and I therefore conclude that it must be taken upon the facts as stated that these doctors either did not express any opinion or that if they did their opinion was that they could not state any objections to the operations proposed. In these circumstances I am of opinion that the Sheriff-substitute has come to a sound conclusion on the facts of the case; that the appellant has shewn no reasonable cause why he should not undergo the operations in question; and that his refusal to do so disentitles him to a continuance of the compensation which he has hitherto received. LORD DUNDAS.—I agree with the majority of your Lordships. The real point at issue in each case of this kind is, I apprehend, whether the workman's incapacity arises from the accident which befel him or only from his own subsequent unreasonable conduct. If the latter is the fact, the workman must take the consequences of his conduct. I think we must assume from what is set forth in this stated case that there was no conflict of opinion among the medical men consulted on both sides as to the nature or the probable effect of the proposed operations. Now, the Sheriff-substitute has found, among other things, that these are "simple or minor operations, not attended with appreciable risk or serious pain, and operations likely to restore to respondent in large measure, or altogether, use of his said hand for the purpose of his former work "-which was of a very simple nature; that the respondent "is of good constitution and in sound general health"; and that "his continued incapacity to use his left hand and any continued pain in his left palm are fairly attributable to the want of such operations." In this state of matters, it appears to me that a reasonable man would submit to these operations; and that, as the respondent deliberately declines to do so his conduct is unreasonable, and his compensation must be ended. I agree, therefore, with the conclusion at which the Sheriff-substitute has arrived; but I agree with your Lordships in thinking that the question Feb. 1, 1908. stated for our determination is not as it stands in proper form. The Lord Justice-Clerk intimated that LORD Low, who was absent, concurred with the majority of the Court. THE COURT pronounced this interlocutor:-" Find in answer to the question of law stated that the appellant has by refusing to undergo the operation to his left hand precluded himself from any right to receive further compensation: Therefore answer said question of law in the affirmative: Affirm the dismissal of the claim by the arbitrator." ST CLAIR SWANSON & MANSON, W.S.-W. & J. BURNESS, W.S.-Agents. JAMES BURLEY, Pursuer (Respondent).-Hunter, K.C.-Munro. M'Clure, K.C.-R. S. Horne. Donnelly v. Limited. No. 76. Feb. 7, 1908. Limited. Master and Servant- Workmen's Compensation Act, 1897 (60 and 61 Burley v. Vict. cap. 37), sec. 1 (1)-Accident arising "out of the employment."-The Baird & Co., Workmen's Compensation Act, 1897, sec. 1 (1), enacts, that if in any employment to which the Act applies "personal injury by accident arising out of and in the course of the employment is caused to a workman" his employer shall be liable to pay compensation. Smith and Paton, two drawers in a coalpit, were sitting in a hutch, Smith driving the horse. In passing near the working place of another drawer, Burley, Paton took hold of a hutch Burley had been using and pulled it after him. Burley followed and in endeavouring to recapture his hutch pushed Paton with a prop. Paton then threw some rubbish at Burley; in avoiding the rubbish Burley struck his head against a projection on the wall and was injured. Burley having claimed compensation under the Workmen's Compensation Act, 1897, held (diss. Lord Stormonth-Darling) that although the accident arose in the course of Burley's employment, it did not arise out of it within the meaning of sec. 1 (1) of the Act. Sheriff of JAMES BURLEY, miner, Galston, claimed compensation under the 2D DIVISION. Workmen's Compensation Act, 1897, from his employers, William Ayrshire. Baird & Company, Limited, and instituted arbitration proceedings under that Act against them in the Sheriff Court at Kilmarnock. The Sheriff-substitute (J. Mackenzie) having awarded compensation, the employers appealed. The Sheriff-substitute, in the stated case for appeal, found the following facts proved, namely:-"That the pursuer is a drawer and was employed in the defenders' Maxwood Pit, Galston, which is a mine within the meaning of the Coal Mines Regulation Act, 1887, and the Workmen's Compensation Act, 1897; that on 31st May 1907 while in the course of his employment in said pit he sustained an injury to his eye: that two other lads named Smith and Paton, who were also drawers in said pit, were taking an empty hutch to their own working place, Smith sitting on the front of said hutch and driving the horse, while Paton was sitting on the back of the hutch; that on passing the entrance to pursuer's working place Smith and Paton found a hutch which pursuer had brought there for his own use, and that said hutch contained a tree or wooden prop about seven feet long that Smith and Paton took possession of this hutch and proceeded to carry it along with them by Paton holding it with his |