76

from a disease caused by the accident, and where it is caused by the second administration of an anæsthetic for the performance of a second operation, necessary to secure the full results anticipated by the first operation.77 So, death may be found to be the result of an injury where such injury left the workman in a debilitated condition, and unable to resist a disease subsequently intervening.78

For decisions holding that incapacity from a disease following an accident may be considered as entitling the workman to compensation, although such disease to compensation. It is a question of fact whether the death did result from the injury caused by the accident. If it did, then it does not matter how improbable or unnatural it might have appeared that death should result."

Where a workman suffered an accident which caused a rupture, and necessitated an operation, and at the time of the operation an old hernia was operated upon, and the workman died eight months after, having shown signs of heart failure soon after the operation, the arbitrator may find that the death resulted from the accident, where the medical evidence indicated that, in order properly to operate for the second rupture, the first one must also be operated for. Mutter v. Thomson [1913] W. C. & Ins. Rep. 241, [1913] S. C. 619, 50 Scot. L. R. 447, 6 B. W. C. C. 424.

The fact that a workman who, after receiving an injury, was taken to a hospital, and thereafter was found to be afflicted with pneumonia, subsequently went to his home contrary to the advice of his doctor, and died two days afterward, does not necessarily preclude a finding that his death "results from the injury." Dunnigan v. Cavan [1911] S. C. 579, 48 Scot. L. R. 459, 4 B. W. C. C. 386.

It may be found that death resulted from the injury where the workman had received a heavy blow on the back, and subsequently died from a clot of blood on the lungs, which resulted from an operation made necessary by the diseased condition caused by the blow on the back. Lewis v. Port of London Authority (1914) 58 Sol. Jo. (Eng.) 686, 7 B. W. C. C. 577.

76 Death from epilepsy caused by a piece of the skull being detached and imbedded in the brain as the result of a blow on the head is due to an accident, although the death occurred a year and a half after the blow was received. Butt v. Gellyceridrin Colliery Co. (1909) 3 B. W. C. C. (Eng.) 44. Death may be found to be the result of an injury where a bricklayer returned home at night with a wound on his thumb, and about two weeks afterward an abscess formed in the armpit, and the man died soon after from septic poisoning, and the doctor who treated him believed that the poison got into his system from the wound, the period

was not the probable result of the accident, see cases cited on ante, 37.

In one case the court evidently took the view that death from suicide, committed while the workman was insane as a result of the injury, may be found to be due to accident.79

But insanity cannot be inferred merely from the fact that a workman who had received an injury to his eye, and was suffering great pain, committed suicide, although there was no other reason except the injury advanced for the act.80 Employers are not estopped from denying that the death of a workman of incubation being such as would generally intervene between an accident and an abscess of such character. Fleet v. Johnson (1913) W. C. & Ins. Rep. (Eng.) 149, 29 Times L. R. 207, 57 Sol. Jo. 226, 6 B. W. C. C. 60.

2

See also Dunham v. Clare (Eng.) supra.

77 Shirt v. Calico Printers' Asso. [1909] K. B. (Eng.) 51, 3 B. R. C. 62, 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.

78 The arbitrator may find that death results from the injury where the workman fell from a ladder and received a severe shaking and bruising and an injury to his ankle, and he died about a month thereafter of appendicitis and consequent peritonitis, and during the month between the injury and death he was in a very low state of health and suffered severe pain. Euman v. Dalziel [1913] S. C. 246, 50 Scot. L. R. 143, (1913) W. C. & Ins. Rep. 49, 6 B. W. C. C. 900.

Death may be found to result from the injury although the workman had recovered from the direct effects of it, and the death occurred thirteen months after, if the workman was in a debilitated condition, and the bronchitis of which he died only hastened his death. Thoburn v. Bedlington Coal Co. (1911) 5 B. W. C. C. (Eng.) 128.

79 In Malone v. Cayzer [1908] S. C. 479, 45 Scot. L. R. 351, 1 B. W. C. C. 27, it was held that a claim by a widow should not be dismissed on the ground of the irrelevancy of her plea that an accident to her husband's eye which rendered him nearly blind, and which so worked upon his nerve that he became insane and eventually committed suicide, was the cause of his death. The appellate court held that it was not clear that the chain of causation could be made out, but that the sheriff substitute should have made inquiry into the matters alleged.

80 There can be no compensation recovered for the death by suicide of a workman who had suffered an injury to his eye, and the doctor thought that he might lose the sight of it, where there was no evidence of insanity on the part of the workman. Grime v. Fletcher [1915] 1 K. B. (Eng.) 734, 31 Times L. R. 158, 84 L. J. K. B N. S. 847,

In determining the question of the dependency of a father on the earnings of his son, the county court judge is not precluded by law from making a deduction in respect of the cost of the son's maintenance.98 But he is not precluded from taking into account as against the cost of maintenance of the son, the pecuniary benefit, if any, of the services rendered by the son to the father in the conduct of the latter's business. 99 Help given by younger members of the family who live together should not be treated as a deduction from a and if the dependents themselves die they require it no longer. And it seems anomalous to enforce payment when no dependent is still living to require support. The act, however, provides a fixed sum, and this must be taken as the statutory provision, whether in the event it is needed or not. Perhaps if this result had been foreseen, it might have been guarded against; but that cannot affect the judgment of a court of law."

The above decision disapproves O'Donovan v. Cameron [1901] 2 I. R. 633, 34 Ir. Law Times, 169, where it was held that where the sole dependent of a deceased workman dies after having served notice of the accident, but before any claim for compensation has been made, the right to recover compensation does not pass to the personal representative of the dependent.

Harvey v. North Eastern Marine Engineering Co. (1902; C. C.) 5 W. C. C. (Eng.) 30, 113 L. T. Jo. 499, holding that the personal representative of a dependent who died after filing a claim, but before an award was made, cannot continue the proceeding, as the dependent's right to compensation died with him, must be considered as overruled.

97 Byles v. Pool (1908; C. C.) 126 L. T. Jo. (Eng.) 287, 73 J. P. 104, 53 Sol. Jo. 215, 2 B. W. C. C. 484.

98 Tamworth Colliery Co. v. Hall [1911] A. C. (Eng.) 665, 105 L. T. N. S. 449, 55 Sol. Jo. 615, 4 B. W. C. C. 313, reversing [1911] 1 K. B. (Eng.) 341, 80 L. J. K. B. N. S. 304, 103 L. T. N. S. 782, 4 B. W. C. C. 107. Osmond v. Campbell [1905] 2 K. B. (Eng.) 852, 54 Week. Rep. 117, 22 Times L. R. 4, 75 L. J. K. B. N. S. 1, 93 L. T. N. S. 724, in so far as it may hold that upon the question of partial dependency the county court judge is not entitled to deduct from the earnings of a deceased workman the cost of his maintenance, was overruled.

The court of appeal has refused to interfere with the conclusion of the county court judge where, in the case of a person partially dependent upon a deceased workman, he estimated the workman's earnings upon the whole amount received, and not

express contract.1

As to the manner of paying the money to the dependent, see post, 162. And as to the determination of the question, Who are dependents? see ante, 121. d. Amount recoverable by workman totally or partially incapacitated (¶ 1b).

The expression "incapacity for work" includes incapacity to get work as well as incapacity to do work.2 So a workman may be incapacitated within the meaning of the statute although he is able to resume his work, if his condition is such that he cannot get work because upon the part thereof that went to the support of the dependent. Littleford v. Connell (1909) 3 B. W. C. C. (Eng.) 1. The decision in Osmond v. Campbell [1905] 2 K. B. (Eng.) 852, was followed.

See also O'Neill v. Bansha Co-op Agri. & Dairy Soc. [1910] 2 I. R. 324, 44 Ir. Law Times, 52.

99 Tamworth Colliery Co. v. Hall [1911] A. C. (Eng.) 665, 105 L. T. N. S. 449, 55 Sol. Jo. 615, 4 B. W. C. C. 313.

1 Roper v. Freke (1915) 31 Times L. R. (Eng.) 507.

2 An accident which necessitates the removal of the left eyeball causes an "incapacity for work," although the sight of the eye had previously been lost, where the workman is unable to obtain work as being "manifestly a one-eyed man." Ball v. Hunt [1912] A. C. (Eng.) 496, 81 L. J. K. B. N. S. 782, 106 L. T. N. S. 911, 28 Times L. R. 428, 56 Sol. Jo. 550, [1912] W. N. 149, [1912] W. C. Rep. 261, 5 B. W. C. C. 459, reversing [1911] 1 K. B. 1048, 80 L. J. K. B. N. S. 655, 104 L. T. N. S. 327, 27 Times L. R. 323, 55 Sol. Jo. 383, 4 B. W. C. C. 225. In a dissenting opinion in the court of appeal, Fletcher Moulton, L. J., whose views were in effect adopted in the House of Lords, said: "In the phrase 'incapacity for work' in sched. I. (1) the word 'work' is used in the sense of doing work as a workman, i. e., for wages or other remuneration. It is to the capacity for earning wages as a workman that the whole scheme of the act relates. It is beyond question that the amount of the compensation depends on the change produced in this, and, in my opinion, the right to receive compensation depends on it also. A capacity to do certain physical acts, but not to do them as a workman for wages, is not in my opinion a capacity to do that work within the meaning of the act. It follows, therefore, that as a general principle a workman has brought himself within the act when he shows that by reason of an accident arising out of and in the course of his employment he has sustained an injury which lessens his earning capacity, and this, whether or not it has diminished his physical capacity for doing his work."

he is liable to break down at any time.3 And incapacity may "result from the injury" although it is not the probable result thereof.4

A workman who has shown that he was injured by accident arising out of and in the course of his employment is not disentitled to be paid compensation by reason of the supervention of some cause not due to the accident, which equally results in incapacity for work; as where heart disease has supervened, or where the workman, while receiving compensation, was convicted of a crime and sentenced to a term of imprisonment.

An earlier decision by a county court judge was to the contrary.7

Incapacity may be found to exist as the result of an injury although the workman was partially incapacitated before the injury. And the nervous and mental as well as the physical condition

3 A workman injured in the knee is entitled to full compensation where, although he is able to resume work, the knee is liable to break down at any time, and for that reason he is unable to procure work either from his former employer or elsewhere. Thomas v. Fairbairne (1911) 4 B. W. C. C. (Eng.) 195.

4 In Ystradowen Colliery Co. v. Griffiths [1909] 2 K. B. (Eng.) 533, 78 L. J. K. B. N. S. 1044, 100 L. T. N. S. 869, 25 Times L. R. 622, 2 B. W. C. C. 357, the county court judge was held to have misdirected himself in holding that bronchitis and chronic asthma were not the natural result of injury to the workman where, because of his injury, it took him two hours to travel the distance of 1 mile to his home, during which he caught cold and chills which culminated in pneumonia, and bronchitis and chronic asthma supervened.

5 Harwood v. Wyken Colliery Co. [1913] 2 K. B. (Eng.) 158, 82 L. J. K. B. N. S. 414, 108 L. T. N. S. 283, 29 Times L. R. 290, 57 Sol. Jo. 300, [1913] W. C. & Ins. Rep. 317, [1913] W. N. 53, 6 B. W. C. C. 225.

6 McNally v. Furness [1913] 3 K. B. (Eng.) 605, 82 L. J. K. B. N. S. 1310, 109 L. T. N. S. 270, 29 Times L. R. 678, [1913] W. N. 239, 6 B. W. C. C. 664.

7 Clayton v. Dobbs (1908; C. C.) 2 B. W. C. C. (Eng.) 488.

8 Where it is proved that a disease would have produced total incapacity at a definite future time, but that the accident accelerated it, so as to produce present incapacity, compensation may be awarded for the period of incapacity attributable to the accident. Ward v. London & N. W. R. Co. (1901; C. C.) 3 W. C. C. (Eng.) 192.

of an injured workman must be taken into consideration in estimating the extent of his recovery and consequent earning capacity.9 But mere mental brooding over an accident, causing inability to work, is not an incapacity under the act.10 Although a workman was advised by his doctor not to continue his work in a coal pit, the county court judge is not justified in awarding him full compensation upon the ground that he acted reasonably in following his doctor's advice, but he must find out his capacity for work.11

A workman who was twice injured may recover compensation for one of the injuries if it incapacitates him, although he is fully recovered from the other.12

The question as to what constitutes incapacity is to be determined by the facts of each case. 13 An unskilled latated the removal of the eye. Martin v. Barnett (1910) 3 B. W. C. C. (Eng.) 146. A miner whose left eye was affected by disease so as to be useless for underground work may be held to be suffering from in-, capacity resulting from an accident, where his right eye was injured to such an extent that it was of little use for underground work, although the condition of the left eye was neither caused nor aggravated by the accident. Lee v. Baird [1908] S. C. 905, 45 Scot. L. R. 717.

The county court judge is justified in finding that a workman who had suffered an injury to his eye was totally incapacitated where the medical referee found that the injured eye had only about 10 of the normal vision, and the right eye was not very good, although the medical referee was inclined to believe that he had better vision than he was willing to own. James v. Mordey (1913) 109 L. T. N. S. (Eng.) 377, 6 B. W. C. C. 680.

9 Turner v. Brooks (1909) 3 B. W. C. C. (Eng.) 22.

10 Holt v. Yates (1909) 3 B. W. C. C. (Eng.) 75.

11 Evans v. Cory Bros. [1912] W. C. Rep. (Eng.) 199, 5 B. W. C. C. 272.

12 Where a workman had been injured and was receiving compensation, and afterwards, while doing light work, received a further injury, it is error for the county court judge, upon a recovery from the second injury, to terminate all compensation without inquiry as to what incapacity remained from the first injury. Wilkinson v. Frodingham Iron & Steel Co. [1913] W. C. & Ins. Rep. (Eng.) 335, 6 B. W. C. C. 200.