Millar v Coltness Iron Company
| Jurisdiction | Scotland |
| Judgment Date | 19 March 1929 |
| Docket Number | No. 58. |
| Date | 19 March 1929 |
| Court | Court of Session |
Lord President (Clyde), Lord Sands, Lord BlackBurn.
Workmen's CompensationAct 1925 (15 and 16 Geo. V. cap. 84), sec. 1 (1) AccidentDeath from failure of diseased heart while at workHeart failure due to strain of work during shiftNo particular or exceptional strain involvedWhether death of workman due to an accident.
A workman, who was employed as a brusher in a mine, began a shift at 11 p.m. on 30th December. It was the last shift of the year, and the man worked more vigorously than usual in order to finish early for his own purposes. About 12.20 a.m. on 31st December he complained of a pain in his side. He collapsed while at work about 10 minutes later, and died shortly afterwards. Death was due to heart failure, caused by the strain of the whole work of the shift operating upon a diseased condition of the heart. There was no proof of any particular or exceptional strain, and it was not proved that the extra vigour with which the deceased had been working caused his death.
Held that, on these facts, the arbitrator was entitled to hold that the workman's death was not caused by injury by accident within the meaning of the Workmen's Compensation Acts.
In an arbitration under the Workmen's Compensation Act, 1925, in the Sheriff Court of Lanarkshire at Hamilton, between Mrs Isabella Slimmon Melvin or Millar, as an individual and as curatrix of her pupil children, and the Coltness Iron Company, Limited, the employers of her deceased husband, George Millar; the Sheriff-substitute (Mercer) refused compensation, and, at the request of the pursuer, stated a case for appeal.
The case set forth that the following facts were admitted or proved:(1) The appellant is the widow of the deceased George Millar, and curatrix and administratrix of his three pupil children. (2) The said deceased at the date of his death was a brusher in the employment of the respondents at their Kingshill Colliery, New-mains. (3) On 30th December 1927, at 11 p.m., he began brushing in section No. 3 of said colliery. (4) The shift beginning at that hour was the last brushing shift of the year, and the deceased was desirous of finishing early. (5) For that purpose he was working more vigorously than usual. (6) His more vigorous working was for his own purposes, and not upon the instruction or with the consent or in the interests of the respondents. (7) The work he was doing was the ordinary work of his employment, and comprised at the time the putting up of roof timbers and the boring of a shot-hole. (8) About 12.20 a.m., on 31st December, he paused in his work and complained of a pain in his side. (9) Having resumed work he collapsed about 12.30 a.m., and expired a few minutes later. (10) Death was due to cardiac failure, caused by atheromatous changes in the coronary arteries and fibrosis of a limited area of the muscle of the left main chamber of the heart and also by the strain of the whole work of the said shift operating upon the said cardiac condition.
The questions of law for the opinion of the Court were:(1) Upon the foregoing facts, admitted or proved, was I entitled to find that the death of the deceased George Millar was not caused by accident arising out of and in the course of his employment with the respondents ? (2) Upon the foregoing facts, admitted or proved, was I entitled to refuse the appellant's claim for compensation?
The case was heard before the First Division (without Lord Morison) on 31st January and 1st February 1929, when the Court remitted to the Sheriff-substitute to report whether there were any facts beyond those stated in findings (1) to (9) showing a causal connexion (a) between the workman's breakdown and his employment, or (b) between the circumstance referred to in finding (5) and the workman's death; and (c) whether finding (10) rested on the general inference that such exertion as the workman's duties involved was calculated to operate on a diseased heart.
The Sheriff-substitute's report was in the following terms:(1) With reference to heads (a) and (b) of the remit, there was no proof or admission of any such circumstance or evidence as is there referred to. (2) With reference to head (c) Dr John Henderson, Visiting Physician to the Glasgow Royal Infirmary, a consultant with thirty years' hospital experience, expressed the opinion that, in the condition of the deceased workman's heart, collapse and death would not have taken place without the application of external strain, and that the 11/2hours' brushing work, on which the collapse straightway followed, supplied that strain. He was supported in that view by two experienced local medical practitioners, and I accepted that evidence. There was no proof of the degree of strain which brought about the collapse of the heart function, but I inferred that the whole effort put forth by the workman contributed to the fatal result.
The case was again heard before the same Court on 19th March 1929.
Argued for the pursuer (appellant);It was found by the arbitrator that the deceased had collapsed, while at work, in consequence of strain. This constituted an accident, which had been judicially interpreted as a mishap, or untoward and unexpected event.1 The case was the same as if the workman had suffered any other bodily strain through over-exertion. It was settled that such a strain was an accident within the meaning of the Act.2 The fact that a diseased condition of the body might have been a contributing cause did not preclude the result from being regarded as an accident, and as arising out of the employment.3 It was not necessary that there should be any particular or sudden strain involved. A strain caused by the ordinary exertion of working was an accident.4 If a special cause connecting the injury with the work was necessary, it was provided in the finding that the deceased had been working with extra vigour, and this finding distinguished the present case from Ferguson v. Shotts Iron Co.5 The decision in Ferguson,5 if not distinguishable, was unsound and should not be followed. The questions of law should accordingly be answered in the negative.
Argued for the defenders (respondents);In order to constitute an accident there must be a particular or sudden strain.6 The view put forward by the appellant, that the ordinary and continuous strain involved in the exertion of work was sufficient, meant reading the word accident out of the Act. The Scottish decisions to this effect were not inconsistent with the cases of Clover, Clayton, & Co.ELR7 and Fenton v. Thorley & Co.ELR,8 for in each of the latter cases there had been a sudden strain. The effect of ordinary work upon a diseased condition of the body was not an accident.9 If the disease or the collapse could be treated as the accident, such a decision as Grant v. KynochELR10 would have been unnecessary. The appellant could not found on the fact that the deceased was working more vigorously than was customary as establishing an accident, for he was found to have done so for
his own purposes. Accordingly, if finding (5) provided the evidence an accident, it was not an accident arising out of the employment. Counsel also referred to Raeburn v. Lochgelly Iron and Coal Co.1 The questions of law should be answered in the affirmative.
Lord President (Clyde).The deceased workman was a brusher in a coalmine. He was engaged at the time of his death in his ordinary work, and was working somewhat more vigorously than usual in order to finish early, the shift being the last brushing shift before the New Year. The learned arbitrator found it proved that the death was due to heart failure caused (1) by the diseased state of the workman's heart, and (2) by the strain of the whole work of the shift. Holding himself bound by the analogous decision in Ferguson v. Shotts Iron Co.,2 the learned arbitrator refused compensation. But he explained that but for that decision he would have regarded the present case as covered by the decision of the House of Lords in Clover, Clayton, & Co. v. HughesELRELR,3 and would have awarded compensation accordingly. I do not think that the latter decision supports a proposition so wide as that any and every physiological breakdown in the workman's system, occurring while he is subjected to the stress of his ordinary duties, constitutes an injury by accident arising out of and in the course of his employment. On the contrary, the fact that the breakdown occurs while the workman is at his work is not enough; it must be proved that the breakdown arises out of the employment, in the sense that the employment has at least contributed as a matter of substance to the occurrence of the breakdown. Here I am using Lord Loreburn's words.
The issue thus raised is a difficult and delicate one, butas I understand the instruction given to us in Clover, Clayton, & Co. v. HughesELRELR3if the evidence of causal relation between the employment and the breakdown amounts to no more than the general inference which connects a fatal heart seizure with a walk uphill or against a breeze of wind, we ought not to hold it sufficient. Coincidence is not enough, however suggestive of causal relation it may be; the causal relation must be proved. In Clover, Clayton, & Co.ELRELR3 a direct causal relation between two particular strains caused by the tightening of the nut with a spanner and the rupture of the aneurism was proved, and was, I think, the basis of the judgment in the Court of Appealsee per Cozens Hardy, M.R., [1909] 2 K. B., at p. 800, and in the House of Lordssee per Lord Lore-burn, [1910] A. C, at p. 246. No doubt the particular strain in that case was one which occurred in the ordinary course of the man's work without the intervention of any external accident; there was, indeed, nothing out of the way about it, any more than there was about the particular strain which proved too much for the back muscles of the workman in Stewart v. Wilsons and Clyde...
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Miller v Carntyne Steel Castings Company
...Jones and John Paton, Limited, v. JamesELR, [1933] A. C. 501, the distinction drawn by Lord Sands in Millar v. Coltness Iron Co., 1929 S. C. 429, at p. 435, between particular exertion and general strain of work cannot be held as valid. In other words, his third and fourth cases are no long......