from which he suffered, had precluded himself from any right to receive Sec. 9 (1) compensation. Lord McLaren said :—“There is of course no question of compelling the party to submit to an operation. The question is whether a party, who declines to undergo what would be described by experts as a reasonable and safe operation, is to be considered as a sufferer from the effect of an injury received in the course of his employ. ment, or whether his suffering and consequent inability to work at his trade ought not to be attributed to his voluntary action in declining to avail himself of reasonable surgical treatment. . . . 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 and 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."

Donnelly v. Baird and Co., Ltd. (p. 212) was approved, and the above judgment of Lord McLaren adopted by the Court of Appeal in Warncken v. Moreland and Sons, Ltd. ([1909] 1 K. B. 184; 78 L. J. K. B. 332; 100 L. T. R. 12; 25 T. L. R. 129; 2 B. 350), where Fletcher Moulton, L.J., said:" In my view a workman must behave reasonably, and if the incapacity, or the continuance of the incapacity after a certain time, is due to the fact that he has not behaved reasonably, then the continuing incapacity is not a consequence of the accident, but a consequence of his own unreasonableness. To hold the contrary would lead to this result: that a workman who had an injury, however small, might refuse to allow it to be dressed, and let a trivial wound become a sloughing sore, and lead to partial or total incapacity for which his employer must compensate him. That is not the meaning of the Act. You cannot draw a line, in my opinion, between dressing and operation -that would be an entirely unreal and fictitious distinction. The distinction is between being reasonable and not being reasonable."

In Tutton v. Owners of S.S. Majestic" ([1909] 2 K. B. 54; 78 L. J. K. B. 530; 100 L. T. R. 644; 25 T. L. R. 482; 2 B. 346) the applicant met with an accident which caused a double rupture and was advised by a hospital doctor to undergo an operation. He consulted his own doctor, who advised him not to do so, as he had Bright's disease which rendered him an unfit subject for an anaesthetic. On that advice he refused to undergo the operation, and it was held (reversing the County Court Judge) that, under the circumstances, he could not be said to have acted unreasonably, and that he was entitled to full compensation. "I think the test is," said Cozens-Hardy, M.R., not whether on the balance of medical opinion the operation might reasonably be performed, but whether the man in refusing to undergo the operation acted unreasonably. I altogether decline to say that, in the case of an operation of this kind, a man can be said to act unreasonably in following the advice of a competent doctor, even though, on the balance of medical evidence given at a subsequent date, the County Court Judge might come to the conclusion that the operation was in its nature one which might reasonably and properly be performed." See also Moss and Co. v. Akers, p. 211.

Sec. 9 (1)

But Tutton's case (p. 213) must not be taken to be an authority for the proposition that if a workman, in good faith, refuses to undergo an operation upon the advice of a qualified medical practitioner, that alone is a complete answer to any suggestion that he is unreasonable in refusing to undergo it. Each case must be decided upon its own particular circumstances, as a refusal may be perfectly reasonable in one set of circumstances and perfectly unreasonable in another. For instance, in O'Neill v. John Brown and Co., Ltd. ([1913] S. C. 653; 50 S. L. R. 450; 6 B. 428; [1913] W. C. Rep. 235) the Arbitrator found that a workman who was well and strong," but had been incapacitated by an injury, would have been willing to undergo an operation but for the advice of two of his own doctors, who advised him not to undergo it, because it would not lessen his incapacity in any way"; but that they, as well as three doctors who examined him on behalf of his employers, were agreed that the operation was an exceedingly simple one and attended by no appreciable risk or danger to an ordinary healthy person"; and that it was reasonably certain that the operation would restore his capacity. It was held, on the facts stated, that the Arbitrator was entitled to find that the workman's refusal was unreasonable and precluded him from the right to further compensation. "I do not think that the cases, of which there are a good many," said Lord Dundas, at all support the view that a mere difference of medical opinion upon a question of this sort can be held to import that the refusal to undergo an operation is reasonable. It seems to me that, if any such doctrine were to be laid down, this part of the Act would become a dead letter, because in the wide world of medicine I should think it would almost be possible to obtain a perfectly genuine, though eccentric, opinion from some qualified medical man to any effect that might be desired, within limits." See also Higgs and Hill, Ltd. v. Unicume on p. 209. A similar decision was arrived at by the House of Lords in Fife Coal Co., Ltd. v. Cant ([1921] S. C. 15; 58 S. L. R. 74; 13 B. 449; [1921] W. C. Rep. 79) where the employers alleged that the incapacity of a workman who had injured his thumb was due to his unreasonable conduct in refusing to undergo one of two operations. The workman's own doctor thought that the benefit which might be derived from the suggested operations would be negligible and advised the workman not to undergo either operation. The Arbitrator found that the proposed operations were not attended with any great risk or suffering, and were likely to increase the usefulness of the hand, but held that the employers had failed to satisfy him that the workman's incapacity was due to his unreasonable refusal to undergo either of the operations. This decision was affirmed by the House of Lords. One must in each of these cases consider the circumstances." said Lord Birkenhead, L.C., and, "No dictum could be, or ought to be, laid down which would encourage the view that in such cases, in reliance upon the unreasonable advice of the man's own medical adviser, he could excuse himself from submitting to an operation." Lord Dunedin approved of the judgment of Lord Dundas in O'Neill v. John Brown and Co., Ltd. (supra).

On the other hand, in Gracie v. Clyde Spinning Co., Ltd. ([1915] W. C. Rep. 366; 52 S. L. R. 706), where a girl, whose fingers of the right hand were rendered stiff and in a semi-flexed position, on the advice of her doctor, refused to undergo an operation for the purpose of freeing the scar so as to permit extension and flexion, it was held (reversing the Arbitrator) that her continued incapacity was not due to unreasonable conduct in refusing to undergo the operation. "For my

part," said the Lord President, "I am prepared to hold that, save in Sec. 9 (1) very special circumstances, the proximate cause of an incapacity never can be the unreasonable refusal of a workman to undergo an operation if his own medical adviser advises him against undergoing that operation." But in this case a medical referee, to whom the question of the girl's fitness to have anaesthetics administered to her had been referred, after stating that the risk of taking an anesthetic was not more than ordinary, added : But I consider that an operation would be of little benefit, and that the injury to the hand is permanent." Although the judgment of the Lord President would have been the same if there had been no report from the medical referee, such report no doubt had great weight with the other members of the Court. Lord Mackenzie, for instance, based his judgment upon the report, and reserved his opinion as to what the effect might be in any future application of the advice of the workman's own doctor, if that advice were countered by evidence which in the opinion of the Arbitrator entirely outweighed the advice so given.

The onus of proving that the continued incapacity is due to the workman's refusal to undergo an operation is upon the employer. In Marshall v. Orient Steam Navigation Co., Ltd. ([1910] 1 K. B. 79; 79 L. J. K. B. 204; 101 L. T. R. 584; 26 T. L. R. 70; 3 B. 15) a seaman, whose finger was injured by accident, refused to undergo a slight operation proposed by the ship's doctor, and eventually he was compelled to have the finger amputated. The County Court Judge found that he acted unreasonably, but as he was unable on the evidence to come to any conclusion on the question whether the proposed operation would have saved the finger, he made an award in his favour, and his decision was upheld. "Prima facie the accident was the cause of the loss of the finger," said Fletcher Moulton, L.J. "If the owners could have shown that the loss of the finger was not due to the accident, but was due to the unreasonableness of the man in refusing to submit to the operation-a refusal found to be unreasonable-they would have succeeded, but they have failed to prove that."

The question as to whether or not the workman has acted unreasonably is a question of fact for the Arbitrator to determine, and his decision will not be disturbed if there was evidence to support it (Ruabon Coal Co. v. Thomas [1909] 3 B. 32; Moss and Co. v. Akers, p. 211; Simpson v. Byrne, p. 210; O'Neill v. John Brown and Co., p. 214; Dolan and Son v. Ward [1915] W. C. Rep. 274; 8 B. 514).

The following is a summary of cases which have been decided on the question as to whether the refusal of a workman to undergo an operation was reasonable or unreasonable :

The refusal was decided to be reasonable in Rothwell v. Davies ([1903] 19 T. L. R. 423; 5 W. C. C. 141), where the operation would have been attended with considerable risk; in Sweeney v. Pumpherston Oil Co., Ltd. [1903] 5 F. 972; 40 S. L. R. 721), where an eminent surgeon advised against an operation, but the peculiar features of this case were pointed out by Lord Dundas in O'Neill v. John Brown and Co., Ltd. (p. 214); in Molamphy v. Sheridan ([1913] 47 Ir. L. T. 250; 7 B. 957; [1914] W. C. Rep. 19), where there was no evidence that the undergoing of the operation would lessen the amount of compensation payable; in Gracie v. Clyde Spinning Co., Ltd. (p. 214), where a medical referee reported that an operation would be of little benefit, and that the injury was permanent; in Fife Coal Co., Ltd. v. Cant (p. 214), where it was held that the employers had not discharged the onus of proof; and in

Sec. 9 (1)

Earl Fitzwilliam Collieries v. Crossley ([1925] W. C. Rep. 192; 18 B. 109), where a workman was told at the hospital that the suggested operation would not remove the incapacity for his former work from which he suffered.

The refusal was decided to be unreasonable in Anderson v. Baird and Co. ([1903] 5 F. 373; 40 S. L. R. 263), where the operation (on the stump of an amputated thumb) was a simple one and such as a reasonable man would for his own advantage elect to undergo; in Donnelly v. Baird and Co., Ltd. (p. 212), where the suggested operation was to amputate a finger and remove a nodule in the palm; in Paddington Borough Council v. Stack ([1909] 2 B. 402), where the workman's own doctor advised it; in Warncken v. Moreland and Sons, Ltd. (p. 213), where the operation was for the removal of a detached piece of bone in the stump of the big toe, which had been amputated; and in Walsh v. Locke and Co. (Newfoundland), Ltd. ([1914] W. C. Rep. 95; 7 B. 117, where the doctors unanimously advised the amputation of the middle finger of the right hand.

INCAPACITY DUE TO WORKMAN'S CONDUCT.-It is not only through refusing to undergo an operation, that a workman's own conduct may be the cause of his inability to earn his old wages, and the principle laid down in Warncken v. R. Moreland and Sons, Ltd. (p. 213) applies whenever a workman's incapacity is due to the fact that he has not acted, or refuses to act, reasonably. In Upper Forest and Worcester Steel and Tinplate Co., Ltd. v. Grey ([1910] 3 B. 424), on an application by employers to review, the County Court Judge came to the conclusion that, if the workman had taken proper steps to obtain exercise which he ought to have taken more than a year before the hearing, he would have recovered from any disability, and that his present state was due only to want of condition arising from long-continued and unnecessary idleness. He therefore reduced the compensation to 1d. and it was held that there was evidence to justify the award. 'His muscles had become flabby," said Farwell, L.J., " and he did not do what a reasonable man would do, namely, take some form of exercise to put his muscles right again. It was said on his behalf, some medical man must tell him so. With that contention I disagree. A reasonable man would decide the matter for himself. Cases of this kind require the most careful investigation, that people who have recovered from the effects of an accident do not become merely pensioners of their employers." Similarly, in David v. Windsor Steam Coal Co. ([1911] 4 B. 177) a collier was refused compensation on the ground that, although he was unfit for heavy work, his incapacity was not due to the accident but to his prolonged idleness. But where the incapacity would have been greatly reduced if not entirely cured, if the workman had been able to obtain suitable work which he has honestly endeavoured to find, he is still entitled to compensation, as the fault is not his (Bonsall v. Midland Indemnity Co. [1914] W. C. Rep. 331; 7 B. 613).

In Furness, Withy and Co. v. Bennett ([1910] 3 B. 195) an injured workman having been paid compensation for over a year, his employers offered him light work which he refused without attempting to do it. On an application to review the County Court Judge found that his refusal to go and see what the work offered was, was unreasonable, and that, if he had accepted the offer and returned to work, he would by the date of the arbitration have been fit for his usual work. He there

fore stopped the compensation but made a declaration of liability, and Sec. 9 (1) it was held that there was evidence to support his decision.

But unreasonable conduct on the part of a workman does not per se deprive him of his right to compensation. In Devlin v. Chapel Coal Co., Ltd. ([1915] S. C. 71; 52 S. L. R. 83; 8 B. 357; [1914] W. C. Rep. 621), on an application to have compensation ended or diminished, the Arbitrator found that from a date prior to the application the workman's total incapacity had ceased, and that he had since been fit for light work but had made no attempt to obtain it; that he was still partially incapacitated for work; and that such partial incapacity was due in whole or in part to his failure to return to work when able to do so. Upon these findings he ended the payments of compensation until further order. In the absence of a finding that his partial incapacity due to the accident had ceased, it was held that he was entitled to an award of compensation, but the Lord President pointed out that, if the Arbitrator had found that, but for his failure to attempt to obtain light work for which he was quite fit, his incapacity due to the accident would have ceased, the decision would have been otherwise.

When an injured workman, who has been taken back by his employers at an adequate wage, is dismissed for misconduct, he does not become immediately entitled to substantial compensation, although one act of misconduct will not for ever deprive him of his right to it. In Hill v. Ocean Coal Co., Ltd. ([1909] 3 B. 29) a collier, who had had three fingers of his left hand amputated, was found work in another capacity, but was dismissed for absenting himself from work owing to drink. The County Court Judge made an award in favour of the employer, on the ground that his inability to earn his former wages was due to his passion for drink and not to the accident. It was held that although he was somewhat disabled, he had the capacity to earn the same wages as formerly, and was only prevented from doing so owing to his own misconduct, and was therefore not entitled to a substantial award. As the employers, however, agreed that a suspensory award ought to have been made this was done. But in White and Sons v. Harris ([1910] 4 B. 39), where the County Court Judge reduced a weekly payment to 1d. in the case of a one-eyed man, on the ground that he had brought about his own dismissal and was not entitled to substantial compensation, the case was sent back for reconsideration as to compensation on the grounds that, as a workman does not lose his right to compensation for one act of misconduct and as this man was partially incapacitated by reason of the accident, he was entitled to some weekly payment.

In Ward v. Miles ([1911] 4 B. 182) a waitress, whose right hand index finger became stiff owing to an accident, returned to her former work. but left of her own accord because she was grumbled at for the way in which she did her work, and, without any attempt to obtain other work, claimed compensation. The County Court Judge found that she could not work as well as before and that she would not be able to get similar work elsewhere. He awarded her compensation and the Court of Appeal declined to disturb the award.

INCAPACITY DUE TO DISFIGUREMENT.-Although an accident may cause only disfigurement as distinct from physical incapacity, yet, if the disfigurement impairs or destroys the injured workman's ability to get work, he is entitled to compensation. In Ball v. Hunt and Sons, Ltd. ([1911] 1 K. B. 1048; 80 L. J. K. B. 655; 104 L. T. R. 327; 27 T. L. R. 323; 4 B. 225; and, on appeal, [1912] A. C. 496; 81 L. J. K. B.