Co., Ltd. [1909] 2 K. B. 73; 78 L. J. K. B. 809; 100 L. T. R. 751; Sec. 1 (1) 2 B. 329; Southampton Gas Light and Coke Co. v. Stride, 115 L. T. R. 498; 9 B. 555; [1916] W. C. Rep. 285).

Though the personal injury-except in cases provided for in Sec. 43must be caused by accident, it need not be the natural or probable consequence of it; it is sufficient if it in fact results from the accident. See Dunham v. Clare, on p. 187.

QUESTION OF LAW AND FACT.-Whether or not a personal injury is sustained by accident is a question involving considerations both

of law and of fact.

The personal injury and its cause or causes are questions of fact for the arbitrator. If there be evidence to support his findings and no misdirection the arbitrator's decision is final. But when personal injury and its cause or causes have been ascertained the question whether such cause or causes amount to an accident within the meaning of the Act is a question of law on which the decision of the County Court Judge is not final; and is not a question of fact on which his decision is not open to appeal "-per Lord Lindley in Fenton v. Thorley (infra).

66

ACCIDENT.--There is no definition of accident in the Act, and the question whether any particular occurrence was or was not an accident remained, until the decision of the House of Lords in Fenton v. Thorley and Co. (infra), in a very unsatisfactory state. The Court of Appeal had held that the word accident involved the idea of something fortuitous and unexpected," and, consequently, that such injuries as rupture and internal strain, sustained by workmen whilst doing their ordinary work in the ordinary way, were not caused by accident within the meaning of the Act, unless they were brought about by some fortuitous element, such as a slip or fall (Hensey v. White [1900] 1 Q. B. 481; 69 L. J. Q. B. 188; 81 L. T. R. 767; 16 T. L. R. 64; 2 W. C. C. 1). Hensey v. White (supra) and the cases in which that decision was followed, were overruled by the House of Lords in Fenton v. Thorley and Co. ([1903] A. C. 443; 72 L. J. K. B. 787; 89 L. T. R. 314; 19 T. L. R. 684; 5 W. C. C. 1), where a workman, in moving a wheel which had stuck, suddenly felt what he described as a tear "' in his 'inside," and it was found that he was ruptured. There was no evidence of any slip, or wrench, or sudden jerk, and the injury occurred while the man was doing his ordinary work and in doing or trying to do the very thing he meant to accomplish. It was held (reversing the Court of Appeal) that he had sustained an injury by accident" within the meaning of the Act, Lord Macnaghten observing that it was to be regretted that the word fortuitous" should have been applied to the term injury by accident." He further said :-"Now the expression ' injury by accident' seems to me to be a compound expression. The words by accident' are, I think, introduced parenthetically, as it were, to qualify the word injury, confining it to a certain class of injuries and excluding other classes, as, for instance, injuries by disease or injuries self-inflicted by design "; and, discussing the word accident," he added: The expression 'accident' is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or untoward event which is not expected or designed." Lord Shand concurred in holding that the word "accident was to be taken in its popular and ordinary sense, and added :-" I think it denotes or includes any unexpected personal injury resulting to the workman in the course of

Sec. 1 (1)

his employment from any unlooked-for mishap or occurrence. Lord Lindley said:" Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss." And added: "The personal injury was the rupture; the cause of it was the unintended and unexpected resistance of the wheel to the force applied to it. Such a case appears to me to fall within the Act."

In giving their judgments in Fenton v. Thorley and Co. (p. 3), Lord Macnaghten and Lord Lindley mentioned with approval the decision in the Scotch case of Stewart v. Wilsons and Clyde Coal Co., Ltd. ([1902] 5 F. 120; 40 S. L. R. 80), where a workman in a coal mine, while replacing a derailed hutch on the rails, sustained an injury by straining the muscles of his back, and it was held that he was injured by an 'accident." "I am not going to attempt to define the term accident,” said Lord Adam, "but it humbly appears to me perfectly clear that the appellant's injuries were, in the circumstances stated, the result of an accident. These injuries are not such as would occur in the ordinary course of work, but were fortuitous and unexpected. Suppose, for instance, that instead of straining his back, he had broken his leg, would anyone say that was not an accident? I am unable to see any difference between the two cases and why an injury by strain should not fall within the same category as an injury by the fracture of a bone."

MURDER OR ASSAULT AN ACCIDENT.-In Nisbet v. Rayne and Burn ([1910] 2 K. B. 689; 80 L. J. K. B. 84; 103 L. T. R. 178; 26 T. L. R. 632; 3 B. 507) it was held that the death of a workman, who was intentionally shot, was caused by accident," on the ground that the question whether an occurrence is unexpected or undesigned (supra) must be judged from the victim's point of view. A similar decision had been previously given by the Court of Appeal in Ireland, where it was held (Cherry, L.J., dissenting) that a gamekeeper, who had been injured by an attack of poachers, had been injured by accident (Anderson v. Balfour [1910] 2 I. R. 497; 44 Ir. L. T. 168; 3 B. 588). But in Scotland a contrary view was taken by the Court of Session in Murray v. Denholme and Co. ([1911] S. C. 1087; 48 S. L. R. 896; 5 B. 496), where a workman was attacked and injured by other workmen who were on strike.

The question came before the House of Lords in Trim Joint District School v. Kelly ([1914] A. C. 667; 83 L. J. P. C. 220; 111 L. T. R. 305; 30 T. L. R. 452; 7 B. 274; [1914] W. C. Rep. 359), where an assistant schoolmaster, while engaged in the performance of his duties, was assaulted by two of the pupils in pursuance of a preconcerted plan of attack and killed. The Court of Appeal in Ireland upheld the decision of the County Court Judge that the death of the deceased resulted from injury by accident within the meaning of the Act. It was held (Viscount Haldane, L.C., Earl Loreburn, Lord Shaw of Dunfermline and Lord Reading; Lord Dunedin, Lord Atkinson and Lord Parker of Waddington dissenting) that the decision was right. Consequently, by a majority of one, it is now finally decided that "injury by accident" includes any injury not expected or designed by the injured workman himself, irrespective of whether or not it was brought about by the wilful act of someone else. When Lord Macnaghten, in Fenton v. Thorley (p. 3) spoke of the occurrence being undesigned, I think he meant undesigned by the injured person. One cannot imagine its being said of a suicide that he was killed by accident

(per Earl

Loreburn). See also Weekes v. William Stead, Ltd. (p. 70); Mitchinson Sec. 1 (1) v. Day Brothers (p. 71).

Murray v. Denholme and Co. is, of course, now overruled.

Sunstroke, ETC., AN ACCIDENT.—Injury by sunstroke is an injury by accident (Morgan v. Owners of S.S. Zenaida [1909] 25 T. L. R. 446; 2 B. 19; Davis v. Gillespie [1911] 105 L. T. R. 494; 28 T. L. R. 6; 5 B. 64); so is injury by lightning (Andrew v. Failsworth Industrial Society [1904] 2 K. B. 32; 73 L. J. K. B. 510; 90 L. T. K. 611; 20 T. L. R. 429; 6 W. C. C. 11; Kelly v. Kerry County Council [1908] 42 Ir. L. T. 23; 1 B. 194); so is frost-bite (Warner v. Couchman [1911] 1 K. B. 351; 80 L. J. K. B. 526; 103 L. T. R. 693; 27 T. L. R. 121; 4 B. 32; and, on appeal, [1912] A. C. 35; 81 L. J. K. B. 45; 28 T. L. R. 58; [1912] W. C. Rep. 28; 5 B. 177; 49 S. L. R. 681; Karemaker v. Owners of S.S. "Corsican" [1911] 4 B. 295). See note on p. 65.

44

DISEASE MAY BE A PERSONAL INJURY BY ACCIDENT.-By Sec. 43 the benefits of the Act are extended to certain industrial diseases, as if the disease were a personal injury by accident," and by Sec. 43 (4) it is provided that nothing in that Section shall affect the rights of a workman to recover compensation in respect of a disease to which the Section does not apply if the disease is a personal injury by accident within the meaning of this Act." This Sub-section, no doubt, appears in the Act, because under the Act of 1897, which was not made expressly applicable to industrial diseases, it was held that in certain circumstances, the contraction of a disease might be said to be an injury by accident." For instance, in Brintons, Ltd. v. Turvey, ([1904] 1 K. B. 328; 73 L. J. K. B. 158; 89 L. T. R. 660; 20 T. L. R. 130; 6 W. C. C. 1; and on appeal [1905] A. C. 230; 74 L. J. K. B. 474; 92 L. T. R. 578; 21 T. L. R. 444; 7 W. C. C. 1), where a workman employed in a wool-combing factory contracted the disease of anthrax through a bacillus passing from the wool to his eye and died, it was held by the Court of Appeal and the House of Lords that the deceased had sustained a personal injury by accident. "It does not appear to me," said Earl Halsbury, L.C., that by calling the consequences of an accidental injury a disease, one alters the nature or the consequential results of the injury that has been inflicted," whilst Lord Macnaghten said: It was an accident that the noxious thing that settled on the man's face happened to be present in the materials which he was engaged in sorting. It was an accident that this noxious thing escaped the down draught or suck of the fan. It was an accident that the thing struck the man on a delicate and tender spot in the corner of his eye," and added that he could not doubt that the man's death was attributable

.

to personal injury by accident. See also Adams v. Thompson ([1911] 5 B. 19), where some grit entered a workman's eye and, by his constant rubbing it, produced an abrasion of the cornea; but with this case compare Bellamy v. Humphries and Sons, Ltd., p. 28.

The fullest possible effect was given to the decision in Brintons, Ltd. v. Turvey (supra) in the later decision of Ismay, Imrie and Co. v. Williamson ([1908] A. C. 437; 77 L. J. P. C. 107; 99 L. T. R. 595; 24 T. L. R. 881; 1 B. 232; 46 S. L. R. 699), where the claim was made by the dependants of a trimmer on board a steamship who died from what is called "heat stroke." He was of poor physique-undersized, underfed and so emaciated that, as one of the witnesses said, "his bones

Sec. 1 (1)

46

projected." He had to rake out ashes from the furnaces and had had no previous experience of this kind of work. While doing this, nothing unusual having occurred and all the conditions of employment being normal, he fell down in a faint as the result of an attack of heat stroke and died. It was held by Lord Loreburn, L.C., and Lord Ashbourne (Lord Macnaghten dissenting) that the man died from personal injury by accident. 'What killed him," said Loreburn, L.C., was the heat stroke coming suddenly and unexpectedly upon him. . . . It was an unlooked-for mishap in the course of his employment. In common language it was a case of accidental death." This decision was followed by the Court of Appeal in Maskery v. Lancashire Shipping Co., Ltd. ([1914] W. C. Rep. 290; 7 B. 428), where the facts were similar, but was distinguished by the same Court in Pyper v. Manchester Liners, Ltd. ([1916] 2 K. B. 691; [1916] W. C. Rep. 301; 32 T. L. R. 723; 9 B. 580), where a stoker in a steamship, navigating the Red Sea, complained for several consecutive days of the effects of the excessive heat. He was medically treated and, although ill, he continued at his work in order to lessen the strain on his fellow workmen. On the fifth day he collapsed while at work in the stokehold and died. His death was entered by the master, in the ship's log, as being due to "heat stroke." It was held by the Court of Appeal that the death was not due to accident, but to gradual collapse from exhaustion as the result of a continued exposure to excessive heat and that there was nothing sudden or unexpected either in the attack of "heat stroke," or its fatal effects.

44

Viscount Finlay said in Dennis v. Midland Railway Co., Ltd. (p. 46) that the decision of the majority of the House in Ismay's case (p. 5) must be regarded as resting on the very special facts of that case, which was one of heat-stroke attacking a fireman who was in very poor health at the time of his engagement and was without the special knowledge which might have enabled him to guard against such a risk."

In Alloa Coal Co., Ltd. v. Drylie ([1913] S. C. 549; 50 S. L. R. 350; 6 B. 398; [1913] W. C. Rep. 213), owing to the breakdown of a pump, the water in a mine so accumulated that the workmen had to stop work. They went to the shaft to ascend and were kept waiting there for twenty minutes up to their knees in water, the cold air from the shaft descending upon them. Owing to this abnormal exposure the deceased contracted pneumonia and died. It was held (Lord Salvesen dissenting) that his death was due to injury by accident.

Drylie's case was followed by the House of Lords in Coyle or Brown v. John Watson, Ltd. ([1915] A. C. 1; 30 T. L. R. 501; 111 L. T. R. 347; 83 L. J. P. C. 307; 51 S. L. R. 492; 7 B. 259; [1914] W. C. Rep. 228), where owing to a breakdown in the shaft of the pit where the deceased was working, the deceased and his fellow workers were ordered to ascend to the surface by another shaft. They were kept waiting for an hour and a half and were exposed to a down draught of cold air. As a result of this exposure the deceased caught a chill which brought on pneumonia, from which he died. It was held, reversing the Court of Session, and restoring the award of the arbitrator, that death resulted from injury by accident, the case being covered by the decision in Drylie's case (supra). "Here, as there," said Lord Dunedin, you have an accident interfering with the normal working of the mine, a consequential exposure of the workman to injurious climatic conditions for a prolonged period, which exposure would not have been his fate but for the accident, and a finding in fact that the supervening illness was due to this prolonged

exposure. There are no intervening circumstances depending on some Sec. 1 (1) cause other than the accident which occurs to break the chain of

causation."

In Glasgow Coal Co., Ltd. v. Welsh ([1915] S. C. 1020; 52 S. L. R. 798; 8 B. 635; and, on appeal, [1916] A. C. 1; 53 S. L. R. 311; 85 L. J. P. C. 130; 114 T. L. R. 809; 32 T. L. R. 359; 9 B. 371; [1916] W. C. Rep. 79), a brusher, in obedience to orders, was engaged for eight hours in baling out water which had accumulated in a pit bottom owing to the breakdown of a pump five days earlier. To accomplish his task he had to stand up to his chest in water. Sub-acute rheumatism supervened and incapacitated him. The arbitrator found, "that the rheumatism from which the respondent suffered was caused by the extreme and exceptional exposure to cold and damp to which he was exposed" while baling out the water and held that the workman had suffered personal injury by accident. The House of Lords expressly laid down in this case that the breakdown of the pump five days earlier was too remote to be taken into account in determining the accidental character of the consequent exposure of the workman in the water whereby he contracted rheumatism, but upheld the decision of the arbitrator. Viscount Haldane said that he interpreted the above finding of the arbitrator as amounting to this: that there was an entry into the cold water and prolonged exposure to it, the effects of which, being miscalculated, proved unexpectedly injurious.... This miscalculated action of entering the water in the present case must be taken to have constituted a definite event which culminated in rheumatic affection. It was the miscalculation which imported into that event the character of an accident within the meaning of the Act." Lord Kinnear said: "On the particular occasion described, the man exposed himself in performance of his duty to his employer, to an extreme and exceptional degree of cold and damp, the character and effects of which he had miscalculated or through inadvertence had failed to foresee. If the Sheriff-Substitute thought that this was an untoward and unlooked-for mishap which was not expected nor designed, I see no ground in law for disturbing his decision," and "I apprehend it must now be taken as settled that, while a disease it not in itself an accident, it may be incurred by accident, and that that is enough to satisfy the statute." Lord Shaw said :"Injury by accident is a composite expression. It includes a case like the present, namely, the contraction of disease from extreme and exceptional exposure." Lord Wrenbury said :-"I take "the finding of the arbitrator to mean that neither employer nor man anticipated that the cold and damp would have been so extreme as to cause the illness-that the exposure of the man to it was an untoward event-that the result was unexpected-that the outcome was a mishap and that consequently the injury was by accident."

With the above cases there should be compared the case of McLuckie v. John Watson, Ltd. ([1913] S. C. 975; 50 S. L. R. 770; 6 B. 850; [1913] W. C. Rep. 481), where the wetting which brought on the chill was not a necessary result of the accidental breakdown of the colliery machinery, but was due to the workman's determination not to wait his turn for the cage, but to stand in water in order to get in front of his fellows.

The case of Lyons v. Woodilee Coal and Coke Co., Ltd. ([1916] S. C. 719; 53 S. L. R. 538; 9 B. 655; [1916] W. C. Rep. 235; and, on appeal, [1917] W. C. Rep. 265; 86 L. J. P. C. 137; 117 L. T. R. 65; 54 S. L. R. 404; 10 B. 416), decided by the House of Lords, should