CHAPTER II.

ACCIDENT, INCLUDING INDUSTRIAL

DISEASE.

I. ACCIDENT.

The Injury must arise from Accident.-Injury to give rise to a claim under the Workmen's Compensation Act, 1906, must, as was the case under the Act of 1897, arise from accident, and such accident must as heretofore be one "arising out of and in the course of the employ ment" (s. 1 (1) ).

The word "accident " may be defined as an "unforeseen or unexpected event which takes place without design." This answers fairly well as a definition of accident caused by human imperfection, but as to accident arising from the forces of nature, and what is called the act of God, it is, of course, conceded that such act may be in furtherance of design concealed from human knowledge. See Andrew v. Failsworth Industrial Society (a). As ordinarily understood, the expression "personal injury by accident" is accepted as including either what is often called pure accident that which could not have been prevented by human skill and care-and injury arising from negligence, which although it might and ought to have been prevented, was not in fact intended to produce the result which supervened.

Under the Workmen's Compensation Act, 1906, it is only in cases where personal injury by accident is caused to a workman that the compensation becomes payable.

(a) Post, p. 339.

The leading case which must now be consulted upon this point is the case of Fenton v. Thorley & Co., decided by the House of Lords in the year 1903, infra.

What is Personal Injury by Accident?-In the interpretation of the Workmen's Compensation Act, 1897, this question arose on repeated occasions, and it must be confessed that, in spite of the many decisions which were given upon it, it long remained in far from a satisfactory state (225). Before the decision in Fenton v. Thorley & Co. (b), no clear principle was enunciated, the application of which was a safe test to discover whether an occurrence was or was not an accident.

The very natural inclination of the Court of Appeal to uphold, where possible, the decisions of arbitrators, and the difficulty of declaring, in accordance with any rule of law capable of general application, that an occurrence, unexpected, and without which the injury complained of would not have occurred, at all events at the time at which it did occur, is not an accident, resulted in a number of decisions not always easy to reconcile.

The first of these was the case of Hensey v. White (c). It was closely followed by the cases of Lloyd v. Sugg (d) and Walker v. Lilleshall Coal Co. (e). In Hensey v.

(b) [1903] A. C. 443; 72 L. J. K. B. 787; 89 L. T. 314; 19 T. L. R. 684, post, p. 316.

(c) [1900] 1 Q. B. 481; 69 L. J. Q. B. 188; 81 L. T. 767; 16 T. L. R. 64, now overruled.

(d) [1900] 1 Q. B. 486; 69 L. J. Q. B. 190; 81 L. T. 768; 16 T. L. R. 65.

(e) [1900] 1 Q. B. 488; 69 L. J. Q. B. 192; 81 L. T. 769; 16 T. L. R.

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Canadian Notes.

(225) In Neville v. Kelly Brothers, 13 B. C. R. 125; 1 Butt. W. C. C. 432, the plaintiff, while engaged in chipping the burs from a steel plate with a cold chisel, was struck in the eye and his sight destroyed by a piece of steel chipped off, and it was held by the British Columbia Full Court that the injury was an accident within the meaning of the Workmen's Compensation Act, 1902.

White, compensation was claimed in respect of the death of a workman, one of the duties of whose employment was to start a gas engine, which was done by turning a wheel. On the morning when the men resumed work after the Christmas holidays, the wheel owing to disuse was somewhat hard to turn. The deceased man, whilst endeavouring to turn it, suddenly put his hand to his stomach and went outside. He was found to be vomiting blood, and shortly afterwards died, the cause of death being rupture of the small blood vessels of the stomach and intestines. Evidence was given on the one side to prove that the death was caused by the unexpected strain, due to the stiffness of the wheel, and on the other to show that it was due to the physically unsound state of the man's body. The county court judge found that death was due to disease, though possibly accelerated by the strain in endeavouring to move the wheel, and refused to award compensation. The Court of Appeal refused to disturb the decision of the county court judge. This case cannot now be regarded as an authority.

In giving judgment, COLLINS, L.J., quoted “with entire approval" the words of Lord HALSBURY in Hamilton Fraser & Co. v. Pandorf (ƒ), where he says: "I think the idea of something fortuitous and unexpected is involved in both words, 'peril,' or 'accident.'

In Lloyd v. Sugg & Co., supra, the workman claiming compensation was a smith, and was employed in manipulating metal in a forge. He was holding in his right hand a flatter, the head of which was resting on an anvil, and which was being beaten by a boy with a hammer. Whilst so engaged the boy missed aim, and by accident hit the round rod of the flatter, instead of the flat head, and thereby jarred the respondent's hand, from which shock incapacity for work resulted. Medical evidence proved that the man had suffered for some (ƒ) (1887) 12 App. Cas. 518.

time from gout; that he had a gouty diathesis, and that the condition of the hand was due to gout, brought on by the jar, the result of the jar having been to excite the gout in the system. Under these circumstances the county court judge awarded compensation, and the Court of Appeal unanimously upheld the award (9).

In Walker v. Lilleshall Coal Co., supra, the injury had occurred under these circumstances: The workman was employed as an engine fitter. A week before the injury, in respect of which compensation was claimed, the man had blistered one of his fingers whilst at his ordinary work. On the day of the injury he was engaged at working at steam-pipe joints necessitating the use of red led. Before beginning this work he saw the foreman and showed him the blistered finger, saying it was hardly fit for the job. The foreman replied that the job must be done. The workman proceeded with the work, and the red lead coming in contact with the blistered finger greatly inflamed it, and in the end the injury grew serious. The county court judge was of opinion that this was not an accident within the meaning of the Act, it having resulted from working in the ordinary way with the usual materials and appliances for the work. This decision was also upheld by the Court of Appeal, but must now be regarded as of doubtful authority.

SMITH, L.J., in giving judgment, adopted what was said by COLLINS, L.J., in Hensey v. White, as to the lack of the fortuitous element which was then thought to be a necessary ingredient of an accident.

Following upon these cases were one or two others in which the same principle was declared. In one of these, where the workman whilst doing his ordinary work had

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(9) In giving judgment in this case, A. L. SMITH, L.J., said: As appeals under the Workmen's Compensation Act only lie on questions of law, and not upon questions of fact, it would be of great assistance to the court if the county court judges would, in these cases, certify their findings of fact."

ruptured himself, or, as was contended for the employer, only increased a previously existing rupture, the counsel for the workman admitted in the Court of Appeal that he could not, in face of the decision in Hensey v. White, supra, and the cases following that decision, contend that this injury resulted from accident within the meaning of the Workmen's Compensation Act, 1897.

The next case to reach the Court of Appeal was the case of Timmins v. Leeds Forge Co. (h). This case was always somewhat difficult to reconcile with that of Hensey v. White, supra. The facts were as follows: The injured workman's duty was to lift planks of timber. One day in January, after a frost, the timbers were found more or less frozen together, and became more difficult to remove and lift, as the stack of timber became lowered by the removal of planks. The workman in his endeavour to remove and lift one of such planks ruptured himself. In this case the county court judge found that the injury was caused by something fortuitous and unexpected, and that it was an accident within the meaning of the Workmen's Compensation Act.

The Court of Appeal refused to disturb the award of compensation, holding that there was evidence on which the judge was warranted in finding as he did.

The difference between this case and the case of Hensey v. White, is somewhat hard to discover. In both cases the work being done was the workman's ordinary work, though in both cases it was rendered a little harder than usual, necessitating the expenditure of greater strength, owing in the one case to non-user, and in the other to the action of the frost. It is true that in Hensey v. White the arbitrator found that death was due to disease, though possibly accelerated by the strain, and in Timmins v. Leeds Forge Co. the arbitrator found that the injury was due to an accident. The decisions of the Court of Appeal may only have been intended to

(h) 83 L. T. 120; 16 T. L. R. 521.