borer will not be presumed to be incapable of doing any work simply because he cannot do his old work.14

Inability to work, due to anything other than the accident, cannot be made not to have a reasonable chance of obtaining other work which he could do, although other than the ankle he was healthy. Beddard v. Stanton Ironworks Co. [1913] W. C. & Ins. Rep. (Eng.) 535, 6 B. W. C. C. 627.

A waitress who because of an injury to her finger was unable to do her work as efficiently as before may be found to be entitled to compensation, although after receiving compensation for a time, she returned to her work at the former wages, where she voluntarily left the place upon complaint by her employers of her clumsiness due to the injury. Ward v. Miles (1911) 4 B. W. C. C. (Eng.) 182.

In Doharty v. Boyd [1909] S. C. (Scot.) 87, the arbitrator awarded compensation, finding that the workman was permanently incapacitated for work at his trade, and that there was no proof of his being able to work in his present condition. In an appeal the employer contended that there was no finding in fact to the effect that the workman was incapacitated for other work than stonebreaking. But the court refused to set aside the award. Lord M'Laren said: "The statute does not say, incapacity for work of any description, but uses language of a more general nature, which I think has been properly chosen, because otherwise it might be open to an employer to state in defense some fanciful work which the injured workman might get, and might be supposed capable of performing. What, therefore, the sheriff-substitute had to consider was whether this was a substantial case of incapacity for work for a man in the grade of a stonebreaker. He is satisfied that this man is not fit for stonebreaking, and I can quite understand his taking the view that, if not fit for that, he is not fit for any other description of work."

A workman is entitled to an award of compensation where the arbitrator did not find that his partial incapacity, due to the accident, had ceased, but found merely that his total incapacity had ceased and that he was fit for light work, but had made no attempt to obtain it, and further found that he was still partially incapacitated, and that his partial incapacity was due in whole or in part to his failure to return when able to do so. Devlin v. Chapel Coal Co. (1914) 52 Scot. L. R. 83, as cited in Butterworths' Dig. 1914, col. 430.

14 On an application to review it is a misdirection for the county court judge to refuse to review on the ground that the workman could not do his old work. Cammell v. Platt (1908) 2 B. W. C. C. (Eng.) 368.

15 Compensation to a miner who had lost his right eye by an accident must be terminated upon his recovery from the accident and regaining ability to earn full wages,

the basis of compensation.15 Thus, if the incapacity is due simply to idleness, following the injury, the workman is not entitled to compensation.16 Nor is the workman entitled to compensation if he although after the accident an incipient cataract developed in the other eye and it was probable that in course of time he would lose the sight of that eye. Hargreave v. Haughhead Coal Co. [1912] A. C. (Eng.) 319, [1912] S. C. (H. L.) 70, 81 L. J. P. C. N. S. 167, 106 L. T. N. S. 468, [1912] W. C. Rep. 275, [1912] W. N. 79, 56 Sol. Jo. 379, 49 Scot. L. R. 474, 5 B. W. C. C. 445.

Where a broken arm was so badly set that the workman could not use his hand, and was incapacitated, and the employers claimed that the incapacity was due either to the negligence of the bonesetter or to the unreasonable refusal of the workman to have the arm rebroken and properly set, it is incompetent for the county court judge not to pass upon the question of the bonesetter's negligence and to award compensation after finding that the workman's refusal was not unreasonable. Humber Towing Co. v. Barclay (1911) 5 B. W. C. C. (Eng.) 142.

An application to review, and terminate payments being made under an agreement in respect to a certain accident, should be granted where it appeared that the disease from which the applicant had suffered was caused by another accident, and not the one embraced in the agreement. Booth v. Carter [1915] W. C. & Ins. Rep. (Eng.) 59, B. W. C. C. 106.

16 Incapacity due to idleness following the injury, and not to the injury itself, does not entitle the workman to compensation. David v. Windsor Steam Coal Co. (1911) 4 B. W. C. C. (Eng.) 177.

A workman who would be fit to work but for the fact that he had failed to take proper exercise is entitled to no more than a suspensory award. Upper Forest & W. Steel & Tinplate Co. v. Grey (1910) 3 B. W. C. C. (Eng.) 424.

Compensation will be terminated and a suspensory award refused, where it appears that the workman was able to do her ordinary work, and that any defect in her arm would be remedied by exercise, which she had not attempted to take. Simpson v. Byrne [1913] W. C. & Ins. Rep. (Eng.) 240, 47 Ir. Law Times, 27, 6 B. W. C. C. 455.

But the county court judge is not justified in holding that a workman was unreasonable in not going to work where a part of his little finger had been amputated and slight adhesions remained, and the employer maintained that by using the hand the adhesions would break down, but the workman, three days before the application for review, had had a second operation upon the advice of a doctor. Burgess v. Jewell (1911) 4 B. W. C. C. (Eng.) 145.

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if the operation is a serious one,27 or if it is questionable whether it will benefit him,2 28 or if his own doctor advises 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 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.” A workman's refusal to undergo "a simple operation not attended with serious risk or pain, and . . such as a reasonable man not claiming compensation for damages would for his own advantage and comfort elect to undergo," disentitles him to a continuance of substantial compensation. Anderson v. Baird (1903) 5 Sc. Sess. Cas. 5th series (Scot.) 373.

If the operation is not serious, involving no appreciable risk, and is likely to remove his incapacity, he is not entitled to compensation if he refuses to have it performed. Warncken v. Moreland [1909] 1 K. B. (Eng.) 184, [1908] W. N. 252, 25 Times L. R. 129, 53 Sol. Jo. 134, 78 L. J. K. B. N. S. 332, 100 L. T. N. S. 12.

It is unreasonable for the workman to refuse to undergo a slight and trivial operation advised by the workman's doctor for his own good. Paddington v. Stack (1909) 2 B. W. C. C. (Eng.) 402.

A workman receiving compensation is not entitled to refuse to undergo an operation on the ground that he might risk his capaci ty to do other work, where the medical evidence was to the effect that the operation would not be attended with much pain or risk, and would in all probability restore the workman's capacity fully for doing work. Walsh v. Lock (1914) 110 L. T. N. S. (Eng.) 452, [1914] W. C. & Ins. Rep. 95, 7 B. W. C. C. 117.

The arbitrator may find that the incapacity of a workman is due to his refusal to have an operation performed, and not to the original accident, where the refusal was upon the advice of two doctors who, al though they said that the operation was slight and there would be no danger attached to it, nevertheless considered that it would not remove the incapacity. O'Neill v. Brown [1913] S. C. 653, [1913] W. C. & Ins. Rep. 235, 50 Scot. L. R. 450, 6 B. W. C. C. 428. The court pointed out that the ground upon which the medical men were against the operation had nothing to do

against it.29 Ordinarily the question whether the refusal to permit an operation is unreasonable depends on the facts with the risk or pain involved, agreeing with the other medical men that the operation was an exceedingly simple one with no appreciable risk or danger, but their view simply was that it would not be of any use.

Although the facts may substantiate the respondent's claim that the incapacity could be removed by a slight operation which the applicant refused to have performed, the award of the arbiter will be affirmed, and the respondent's relief lies not in an appeal from the award, but in an application to have the award varied. O'Neill v. Ropner (1908), 42 Ir. Law Times 3, 2 B. W. C. C. 334.

In Gilbert v. Fairweather (1908; C. C.) 1 B. W. C. C. (Eng.) 349, the arbiter refused to vary the award or to terminate the compensation of a workman because he refused to submit to an operation which was of trivial character and practically certain to prove successful; the court said that, as a reasonable man, the workman should submit to the operation, but the matter was one for the court of appeal to pass upon.

27 In Rothwell v. Davies (1903) 19 Times L. R. (Eng.) 423, compensation was held not to be barred because of the refusal of a workman to undergo an operation which, although probably successful, would be attended with a certain amount of risk.

28 It cannot be said that a workman's refusal to undergo the operation of trephining was unreasonable, where it is admitted that it would not have effected a total cure. Hawkes v. Coles (1910) 3 B. W. C. C. (Eng.) 163.

The refusal to submit to a slight operation, although unreasonable, will not preclude an award of compensation to the workman for the loss of his finger, where it is not clear that the operation would have saved it. Marshall v. Orient Steam Nav. Co. [1910] 1 K. B. (Eng.) 79, 79 L. J. K. B. N. S. 204, [1909] W. N. 225, 101 L. T. N. S. 584, 26 Times L. R. 70, 54 Sol. Jo. 50 3 B. W. C. C. 15.

In Braithwaite v. Cox (1911) 5 B. W. C. C. (Eng.) 77, Cozens-Hardy, M. R., said that it was not reasonable to require a workman to submit to an operation to remove a dead eye merely because there was danger from possible suppuration from it affecting the other eye.

29 The refusal of an injured workman to undergo an operation which his own medical adviser, an eminent surgeon, had advised him not to submit to, is not a bar to com pensation. Sweeney v. Pumpherston Oil Co. (1903) 5 Sc. Sess. Cas. 5th series, 972, 40 Scot. L. R. 721, 11 Scot. L. T. 279.

In Tutton v. The Majestic [1909] 2 K. B. (Eng.) 54, 78 L. J. K. B. N. S. 530, 100 L. T. N. S. 644, 25 Times L. R. 482, 53 Sol. Jo. 447, it was held that a workman who, in good faith and upon the advice of his own doctor, refuses to have an operation per

of each case.30 A workman cannot be claimed to be unreasonable in refusing to undergo an operation, where there is no evidence that the operation could lessen the amount of compensation payable by the employers.31

As to the effect of the refusal of a workman to be examined by a doctor, see notes 61 et seq. infra.

Earning capacity is a question of fact,32 and the finding of the arbitrator formed, cannot be said to be acting unreasonably.

A workman may be found not to have acted unreasonably in failing to exercise his hand where his own doctor was of the opinion that the exercise would not benefit it. Moss v. Akers (1911) 4 B. W. C. C. (Eng.) 294.

30 Whether or not a workman is unreasonable in refusing to have an operation performed is a question of fact, with which the appellate court will not interfere, where the doctors are not wholly agreed as to the advisability of the operation. Ruabon Coal Co. v. Thomas (1909) 3 B. W. C. C. (Eng.) 32.

The county court judge is not justified in holding that a workman was unreasonable in not going to work where a part of his little finger had been amputated and slight adhesions were made, and the employer maintained that by using the hand the adhesions would break down, but the work man, three days before the application to review was heard, had undergone a second amputation upon the advice of a doctor. Burgess v. Jewell (1911) 4 B. W. C. C. (Eng.) 145.

A workman cannot be held to have unreasonably refused to have an operation performed, where there was no proof that the operation alleged had been refused, although the workman had refused to take an anesthetic for another operation and an anes thetic was necessary for the performance of the operation alleged. Hays Wharf Brown (1909) 3 B. W. C. C. (Eng.) 84.

V.

That the second application of an anesthetic, which proved fatal, would not have been necessary if the workman had permit ted his hand to be amputated, instead of having skin grafted onto it, which would have preserved the hand, does not preclude the widow from compensation, where the operations were performed by a skilful surgeon. Shirt v. Calico Printers' Asso. [1909] 2 K. B. (Eng.) 51, 78 L. J. K. B. N. S. 528, 100 L. T. N. S. 740, 25 Times L. R. 451, 53 Sol. Jo. 430, 2 B. W. C. C. 342.

Whether or not a workman is unreasonable in refusing to undergo an operation is a question of fact, and the findings of the arbitrator will not be disturbed if there is any evidence to support them. Dolan & Son v. Ward (1915) 8 B. W. C. C. (Eng.) 514.

31 Molamphy v. Sheridan [1914] W. C. & Ins. Rep. 20, 47 Ir. L. T. 250, 7 B. W. C. C. 957.

32 Arnott v. Fife Coal Co. [1912] S. C. 1262, 49 Scot. L. R. 902, 6 B. W. C. C. 281. 33 Warwick S. S. Co. v. Callaghan (1912)

will not be reviewed if there is evidence to sustain it.33 But if the finding of the county court judge as to the cause of incapacity is not in accord with the evidence, the case must be remitted.34

35

No general rule as to the amount of compensation can be laid down, but the judge must use his discretion with regard to the particular facts of each case. Under the Saskatchewan compensation act, it has been held that an 5 B. W. C. C. (Eng.) 283; Roberts v. Benham (1910) 3 B. W. C. C. (Eng.) 430; Creighton v. Lowry [1915] W. C. & Ins. Rep. (Eng.) 69, 8 B. W. C. C. 250; Curry v. Doxford [1915] W. C. & Ins. Rep. (Eng.) 81, 8 B. W. C. C. 19; Wells v. Cardiff Steam Coal Collieries (1909) 3 B. W. C. C. (Eng.) 104; Dolan & Son v. Ward (1915) 8 B. W. C. C. (Eng.) 514; Harrison v. Ford (1915) 8 B. W. C. C. (Eng.) 429; Penman v. Smith's Dry Docks Co. (1915) 8 B. W. C. C. (Eng.) 487; Barron v. Blair & Co. (1915) 8 B. W. C. C. (Eng.) 501.

The finding of the county court judge that the applicant's incapacity was a result of an old hernia will not be disturbed, although there was some evidence that the workman had strained himself somewhat in the employment. Legge v. Nixon's Nav. Co. [1914] W. C. & Ins. Rep. (Eng.) 7 B. W. C. C. 521.

The finding of the county court judge that the incapacity of a workman was due to bad medical treatment at a hospital, and not to the injury, will be sustained where there is some evidence to sustain it. Rocca v. Jones [1914] W. C. & Ins. Rep. (Eng.) 34, 7 B. W. C. C. 101.

The finding of the arbitrator that the incapacity resulting from an accident had ceased will not be disturbed, although it was admitted that his age and a natural tendency to obesity, greatly accelerated by the enforced idleness due to his injury, had rendered him less and less fit for labor of any kind. Taylor v. Clark, [1914] S. C. (H. L.) 104, [1914] 2 Scot. L. T. 125, 51 Scot. L. R. 740, 58 Sol. Jo. 738, 7 B. W. C. C. 871, [1914] W. N. 327, [1914] W. C. & Ins. Rep. 448, 111 L. T. N. S. 882, 84 L. J. P. C. N. S. 14, reversing the court of sessions [1914] S. C. 432, 1 Scot. L. T. 336, 51 Scot. L. R. 418, 7 B. W. C. C. 856.

34 Taylor v. Bolckow (1911) 5 B. W. C. C. (Eng.) 130.

The county court judge is not justified in saying that incapacity continued where the undisputed medical evidence was that the workman had entirely recovered. Binns v. Kearley (1913) 6 B. W. C. C. (Eng.) 608. In this case the applicant contended that the county court judge had seen the injured finger and he was the sole judge of the facts. Furthermore it appeared that the applicant had been treated in a hospital two or three days after the doctors had said he had completely recovered.

35 Webster v. Sharp [1904] 1 K. B. (Eng.) 218, 73 L. J. K. B. N. S. 141, 68 J. P. 140, 52 Week. Rep. 275, 89 L. T. N. S. 627, 20 Times L. R. 121, affirmed in [1905] A. C.

injured employee is entitled, first, to his expenses, medical services, and hospital bills; second, for pain and suffering caused by the injury and diminution of his capacity for the enjoyment of life; third, for his inability to earn an income equal to that which he has earned in the past; and that the measure of damages under the third is the difference between what he might have earned and was likely to have earned if he had not been injured, and what he might earn and was likely to earn in his injured state.36

The workman has no absolute title to 284, 74 L. J. K. B. N. S. 776, 92 L. T. N. S., 373.

The court will not interfere with the finding of the arbitrator as to the quantum of the compensation. Roberts v. Hall (1912) 106 L. T. N. S. (Eng.) 769, 5 B. W. C. C. 331; Slater v. Blyth Ship Bldg. & Dry Docks Co. [1914] W. C. & Ins. Rep. (Eng.) 39, 7 B. W. C. C. 193. In the latter case the applicant was for a time confined in an insane asylum for reasons independent of the injury, and the county court judge, upon finding that when he went to the asylum he was fit for light work, except for the insanity, made an award accordingly.

Upon an application to reduce the payment, a county court judge is entitled to find that a teamster was earning more than 10s. a week, where he took a farm of his own of 45 acres at a rent of £95, possessed, among other things, eight bullocks and two horses, employed his father, to whom he paid 13s. a week and gave board and lodging free, and also employed a lad to whom he paid 8s. a week, and he himself with his wife had free board and lodging at a clergyman's house. Duberley v. Mace (1913) W. C. & Ins. Rep. (Eng.) 199, 6 B. W. C. C. 82. Under the Saskatchewan act, it is error to award as compensation a sum larger than the earning for three years as estimated from the evidence offered. Uhlenburgh v. Prince Albert Lumber Co. (1913; Sask.) 7 B. W. C. C. 1028.

The county court judge is not justified in finding that the average earnings of a workman were 45s. a week, where he had worked on an average four and a half days a week and the pay was but 6s. per day. James v. Mordey (1913) 109 L. T. N. S. (Eng.) 377, 6 B. W. C. C. 680.

36 In Kier v. Benell (1914) 7 Sask. L. R. 78, the court said: "The principle upon which damages are to be estimated in cases under this act are the same as in an or dinary action for damages for personal injury. If the damages sustained estimated in accordance with the above stated principle are fixed at $1,800 or any less amount, § 15 of the act has no application. If the damages sustained exceed the amount of $1,800, it will then be necessary to take into consideration ‘estimated earnings' during the three years, but only in order to

37

an award of 50 per cent of his wages; that is merely the maximum amount which can be awarded; nor, on the other hand, is the amount of compensation in case of partial disability limited to one half of the difference between what the workman was earning before the injury, and what he was able to earn afterwards.38 The clause which provides that, in fixing the amount of a weekly payment, regard is to be had to the difference between the average weekly earnings of the workman before the accident, and the average amount which he is able to earn after the accident, does not determine what amount up to $2,000 can be allowed, but in no case can more tha $2,000 be awarded."

37 Fox v. Battersea (1911) 4 B. W. C. C. (Eng.) 261; Snell v. Bristol Corp. [1914] 2 K. B. (Eng.) 291, 83 L. J. K. B. N. S. 353, 110 L. T. N. S. 563, [1914] W. N. 47, [1914] W. C. & Ins. Rep. 103, 7 B. W. C. C. 236.

But subsec. 2 of article 7322, of the Quebec act, does not limit the rent which can be recovered to the annual rent procurable with a capital sum of $2,000, except in those cases provided for in article 7329, where, after the amount of the compensation has been agreed upon, or after judgment ordering it to be paid, the employer is required, at the option of the person injured or his representative, to pay the capital of the rent to an insurance company designated for that purpose by order in council. Canadian P. R. Co. v. McDonald (1915) 31 Times L. R. (Eng.) 600. It was contended by the employer that the compensation to the workman who had been partially but permanently injured should not exceed the annual rent procurable with the capital sum of $2,000. But the court held that he was entitled to one half the amount by which his earning capacity had been reduced by the injury.

38 Jones v. London & N. W. R. Co. (1901) 4 W. C. C. (Eng.) 140.

This decision must be considered as overruling Russell v. Holme (1900; C. C.) 2 W. C. C. (Eng.) 153, 108 L. T. Jo. 373, in which the county court judge held that the intention of the legislature was that the employee should bear only half the loss, and that he could award him as compensation only one half the difference between the wages earned before and those earned after the accident.

In Humphreys v. London Electric Lighting Co. (1911) 4 B. W. C. C. (Eng.) 275, an award by the county court judge of one half the difference between what the workman was earning after and what he had earned before the accident was sustained. The county court judge held that the amount awarded was a reasonable amount under all the circumstances of the case. CozensHardy, M. R., said: "The judge has treated himself as not bound by any absolute rule