Scottish Court of Session Decisions

The Workmen's Compensation Act 1906 (6 Edw. VII, c. 58), sec. 1, sub-sec. (1), enacts—“If in any employment personal injury by accident arising out of and in the course of his employment is caused to a workman, his employer shall … be liable to pay compensation.…”

In an application in the Sheriff Court at Glasgow under the Workmen's Compensation Act 1906, by Charles M'Innes, labourer, 5 Peel Street, Bridgeton, Glasgow, against Dunsmuir & Jackson, Limited, engineers and boilermakers, Govan, the Sheriff-Substitute ( Boyd) awarded compensation, and at the request of the defenders stated a case.

The facts proved, as stated in the case, were—“(1) That the respondent is a labourer, and on 6th November 1907 was in the employment of the appellants at a wage of 18s. a-week; (2) that the respondent, along with another labourer, had been engaged for some hours in arranging plates in which holes had to be punched by a punching machine; (3) that these plates were between 3 and 4 cwt. each; (4) that the two labourers followed the ordinary and usual course of working—they lifted the plates on to a barrow, which was managed by a third workman, and the plates were conveyed to the vicinity of the punching machine and stacked on end; (5) that after they were thus arranged, the respondent and another labourer placed before the punching machine a cylindrical pedestal called a ‘thimble’; (6) that they then took hold of a plate and brought it to a vertical position, and edged it, with arms and shoulders, towards the thimble and laid it down, so that it leant against the thimble, with the lower edge on the ground; (7) that they then lifted the plate to a horizontal position on to the thimble, and held it until the slings of a crane were attached to each side; (8) that the crane was then heaved until the plate swung, and the labourers then directed the plate under the punching machine; (9) that after the crane was heaved there was no weight on the arms of the labourers; (10) that on the occasion in question a plate had been slung, and subjected to the punching machine for about ten or twelve minutes, when the respondent felt a slight pain on the left side of his head, accompanied by a giddy feeling, which caused him to seize hold of the side of the machine for support;(11) that he was helped outside by his fellow labourer, and remained resting for a quarter of an hour, and then returned to work;(12) that he worked for about three quarters of an hour, when he again became giddy, and complained of want of power in his right arm and leg; (13) that he was taken home, and still complained of this loss of power, but by the afternoon he had recovered from this, and showed no trace of powerlessness in either arm or leg; (14) that he remained in bed, and on the 10th November he had an attack of cerebral hæmorrhage, which caused right side paralysis, from which he still suffers; (15) that the respondent's arteries were on 6th November 1907 in a degenerate and hard condition, rendering an attack of hæmorrhage more likely to occur; (16) that on said 6th November he had an attack of cerebral hæmorrhage as the result of the exertion he was using in the course of his employment as described above.

The Sheriff-Substitute further stated—“On these facts I find that the respondent thus received personal injury by accident in the sense of the Workmen's Compensation Act; that his average weekly wage was 18s., and that he is still unable for his ordinary employment. I therefore awarded him the sum of 9s. sterling per week as from and after 13th November 1907 until the future orders of Court, with expenses.”

The question of law was—“Did the respondent sustain injury by accident arising out of and in the course of his employment within the meaning of the Workmen's Compensation Act 1906?”

Argued for appellants—The claimant's injuries were not due to accident in the sense of section 1 (1) of the Workmen's Compensation Act 1906. To be within that section it was essential (1) that they should be due to accident; and (2) that the accident should be one arising out of and in the course of his employment. Neither of these essentials was present here. (1) There was no accident here in the sense

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of the statute. An accident meant something unusual or untoward or unexpected, e.g., something “fortuitous,” as was the case in Stewart v. Wilsons and Clyde Coal Co., Limited, November 14, 1902, 5 F. 120, 40 S.L.R. 80—or an act of “over-exertion,” as in Fenton v. Thorley & Co., Limited, [1903] AC 443—or “the alighting of a bacillus” on a man's eye, as in Brintons, Limited v. Turvey, [1905] AC 230. There was nothing of that kind here, for the Sheriff had found that the “ordinary and usual course of working” was being followed. In short, the only unexpected event was the man's being taken ill. The claimant's injuries were due to disease, viz., deterioration of the arteries of the brain, and that was not an accident in the sense of the statute, for except in the case of injuries arising from “industrial diseases” ( vide section 8 of the Act), injuries arising from disease were by implication excluded. (2) The accident, if there was one, did not arise out of and in the course of the claimant's employment. There was nothing to connect the attack of cerebral hæmorrhage occurring on 10th November (the injury for which compensation was claimed), with that of 6th November, the attack which occurred while the claimant was at work. The Court should remit to the Sheriff to report whether such connection existed.

Counsel for the respondent were not called on.